Oyarce v Cheshire County Council

The reversed burden of proof under section 54A of the Race Relations Act 1976 applies to direct and indirect discrimination on grounds of race or ethnic or national origins. It does not apply to discrimination by way of victimisation.

The wording and purpose of Directive 2000/43/EC support that construction. Its burden-of-proof and victimisation provisions are separate protections, and it does not require the reversed burden for victimisation claims. Neither purposive interpretation nor the European Union principles of equivalence and effectiveness justify extending section 54A beyond its language.

The appellant complained that her employer had denied her an opportunity to apply for a post because of racial discrimination and because she had previously brought racial discrimination proceedings. The employment tribunal upheld the victimisation complaint after applying the reversed burden of proof in section 54A of the Race Relations Act 1976.

The Employment Appeal Tribunal held that section 54A did not apply to victimisation claims. The appellant appealed with its permission. The central issue was whether the statutory reversed burden applied only to direct and indirect discrimination on specified racial grounds or also to discrimination by way of victimisation.

1. The appeal was dismissed. Section 54A of the Race Relations Act 1976 does not apply to claims of discrimination by way of victimisation. Buxton LJ delivered the leading judgment. Longmore and Richards LJJ agreed.

2. Section 3(3) distinguishes references to “discrimination”, which encompass sections 1 and 2, from “racial discrimination”, which is confined to section 1. Section 54A applies where the complaint concerns discrimination “on grounds of race or ethnic or national origins”. That language is apt for section 1 discrimination but not section 2 victimisation, which occurs by reason of a person’s protected act. Reading the adjectival phrase as applying selectively to section 1 but not to section 2 would be artificial: paras 19–27, 60–65.

3. This construction accords with Directive 2000/43/EC. Article 8 requires a reversed burden for direct and indirect discrimination based on race or ethnic origin. Article 9 separately requires protection from victimisation. The Directive neither states nor implies that article 8 also governs victimisation. Section 54A was introduced by subordinate legislation to transpose article 8 and should be read in the light of that limited purpose: paras 11–18, 26–30.

4. Purposive interpretation could not supply the omitted extension. The pre-existing victimisation prohibition in section 2 already met article 9. Nor did the interpretative obligation arising from European Union law require identical wording elsewhere in the Act to bear the same meaning where that other wording had to be modified to secure conformity with a Directive: paras 28–36.

5. The fact that other domestic discrimination regimes applied reversed burdens to victimisation did not justify rewriting section 54A. Those regimes arose from separate transposing measures and could not override the wording and purpose of the provision under consideration: paras 37–43.

6. The European Union principles of equivalence and effectiveness did not alter the result. The comparators advanced were themselves products of European Union transposition rather than wholly domestic actions. Moreover, the ordinary burden of proof did not make a victimisation claim impossible or excessively difficult. Tribunals retained the common-law ability to draw appropriate inferences from potentially discriminatory conduct: paras 45–56, 67.

1. Court of Appeal (Civil Division): The appeal was dismissed in [2008] EWCA Civ 434 . The Employment Appeal Tribunal’s construction of section 54A of the Race Relations Act 1976 was upheld.

2. Employment Appeal Tribunal: In proceedings identified as UKEAT/0557/06/DA, the tribunal held that section 54A did not apply to victimisation claims and granted permission to appeal.

3. Employment tribunal: The tribunal upheld the appellant’s victimisation complaint after applying the reversed burden of proof.