Appiah & Anor v Bishop Douglass Roman Catholic High School

In a race-discrimination claim, a difference in race and treatment does not by itself transfer the burden of proof under section 57ZA of the Race Relations Act 1976. The court must assess all the evidence, including the respondent’s evidence, at the initial stage. Statistics may support an inference of discrimination, but close or unexplained disparities may carry little weight. Direct discrimination may be conscious or subconscious. The focus is whether treatment was on racial grounds, rather than a narrow inquiry into motive. Procedural unfairness or unlawfulness does not itself establish racial discrimination. Assessors assist the judge in a designated County Court but do not decide the case.

Two sixth-form pupils brought claims under the Race Relations Act 1976 against the governing body of their school after they were excluded following a fight in which another pupil required hospital treatment. Both appellants, who were of black African ethnicity, alleged that their white co-participants received less favourable treatment. They also alleged victimisation in the handling of their complaints and the exclusion appeals.

The Central London County Court dismissed the claims on 21 October 2005. It found that the school’s procedural failures and other shortcomings were not racially motivated. The appellants challenged the treatment of statistical evidence, subconscious discrimination, the burden of proof, the role of assessors and the adequacy of the reasons. The central issues were whether the evidence established an inference of discrimination and whether any error in the first-instance judgment affected the result.

The appeals were dismissed unanimously. Maurice Kay LJ gave the judgment, with Laws LJ and Mummery LJ agreeing.

1. Statistics. Statistical evidence can establish a discernible pattern supporting an inference of discrimination. Its weight is context-dependent. Where the figures are reasonably close, statistics alone may be of little or no probative value unless there is evidence that a significant number of earlier cases were or may have been discriminatory. The judge was entitled to regard the school’s figures as insufficiently probative, particularly in light of the positive findings about the head teacher and governors. The national figures were not treated as providing comfort, but as failing to support an adverse inference.
2. Conscious and subconscious discrimination. Direct discrimination may be conscious or subconscious. The proper focus is whether treatment was on racial grounds. The first-instance judge’s references to motive did not disclose legal error because, read in context, they covered both conscious and subconscious influences and the objective character of the conduct.
3. Burden of proof. Under section 57ZA of the Race Relations Act 1976, the claimant must first establish facts from which discrimination could be inferred in the absence of an adequate explanation. The court must consider all the evidence, including the respondent’s evidence, rather than the claimant’s evidence in isolation. A difference in race and a difference in treatment are insufficient by themselves. The appellants had not crossed the threshold. Alternatively, if they had, the school had disproved racial discrimination.
4. Assessors. Section 67(4) requires assessors to assist the judge in evaluating evidence and drawing inferences concerning possible racism. They are not members of the decision-making body: the decision remains that of the judge. The judge erred in describing the decision as the unanimous judgment of the court and in using collective language, but the error was immaterial because the judgment showed that the assessors’ assistance had been used, there was complete agreement and no new point required further submissions.
5. Reasons and disposition. The judgment sufficiently explained why discrimination and victimisation had not been established or, alternatively, had been disproved. The school had acted unreasonably and probably unlawfully in several procedural respects, and a timely application for judicial review might have succeeded. Those matters did not establish racial discrimination in these proceedings. The appeals were dismissed.

• Court of Appeal (Civil Division): Dismissed the appeals, holding that the first-instance errors did not vitiate the decision. [2007] EWCA Civ 10.
• Central London County Court: HHJ Crawford Lindsay QC dismissed the claims on 21 October 2005.