Country Style Foods Ltd v Bouzir

The Court of Appeal held that the Employment Tribunal had erred in law by failing to apply the statutory burden of proof provisions in section 54A(2) of the Race Relations Act 1976 when determining Mr Bouzir’s complaint of race discrimination. The tribunal should first have decided whether facts proved by the claimant established a prima facie case such that the burden of proof shifted to the employer to provide an adequate explanation. The Court found there was material from which a tribunal could, in the absence of an adequate explanation, conclude that the employer had discriminated on grounds of national origins, including: the premature termination of the claimant’s interview, the employer’s failure to invite attendance at induction as promised, failure to reply to questionnaires, an inaccurate explanatory letter, and non-disclosure of application documents. For those reasons the Court dismissed the appellant’s appeal against the EAT’s decision to allow the claimant’s appeal and remit the matter to a differently constituted Employment Tribunal for re-hearing.

Background and parties. Mr Noureddine Bouzir (an Algerian national) and his wife applied for permanent production operative posts with Country Style Foods Limited at its Grimsby bakery. Both attended interviews on 7 July 2009; the husband’s interview was interrupted when he went to the police station to have documents certified and was not completed on his return. Neither applicant was contacted about induction despite being told they would be. The employer later sent a letter (dated 9 July) explaining that successful candidates had prior bakery experience; the company did not reply to statutory questionnaires and failed to disclose application forms or interview notes.

Procedural history. The Employment Tribunal (Hull) on 15 February 2010 upheld Mrs Bouzir’s claim for religious discrimination but dismissed both claimants’ race discrimination claims (the husband’s claim was limited to race). The Employment Appeal Tribunal (HHJ Richardson) allowed Mr Bouzir’s appeal on 18 May 2011 (UKEAT/0310/10/JOJ) and remitted the case to a fresh tribunal for re-hearing. The employer appealed to the Court of Appeal.

Issues for decision. Whether the ET correctly applied the burden of proof provisions in section 54A(2) of the Race Relations Act 1976 (and the related guidance in Igen v Wong) when considering whether facts proved by the claimant were such that, absent an adequate explanation, the tribunal could conclude that unlawful discrimination had occurred.

Reasoning and outcome. The Court of Appeal concluded the ET had not properly undertaken the two-stage approach required by section 54A(2): it did not first determine whether the claimant had adduced facts from which, absent an adequate explanation, discrimination could be inferred and instead proceeded directly to conclude that the claimant had not proved race discrimination. Given the combination of adverse facts found by the ET (interview cut short, failure to invite to induction, failure to reply to questionnaires, inaccurate letter, and non-disclosure of documents), the tribunal could properly have concluded that the burden of proof shifted to the employer. The Court therefore dismissed the employer’s appeal and upheld the EAT’s decision to remit the case for re-hearing by a different tribunal.

Additional context. The Court noted that the statutory burden-shifting provisions in the 1976 Act and the 2003 Regulations, though since replaced prospectively by the Equality Act 2010, continued to govern the determination of this case.

This is an appellate judgment. The Court of Appeal dismissed the employer’s appeal. The court held that the Employment Tribunal had erred in law by failing to apply section 54A(2) of the Race Relations Act 1976 correctly — it did not determine whether the claimant had adduced facts giving rise to a prima facie inference of discrimination such that the burden of proof shifted to the employer. Because material facts existed from which discrimination could be inferred in the absence of an adequate explanation, the EAT was right to allow the claimant’s appeal and to remit the case for re-hearing by a different tribunal.

Employment Tribunal (Hull) hearing 15 February 2010: race discrimination claims dismissed; religious discrimination claim of Mrs Bouzir upheld. Employment Appeal Tribunal (HHJ Richardson) allowed Mr Bouzir’s appeal and remitted the case to a freshly constituted Employment Tribunal for re-hearing (18 May 2011, UKEAT/0310/10/JOJ). Court of Appeal (Mummery LJ, Richards LJ, Rimer LJ) dismissed Country Style Foods’ appeal on 8 December 2011 ([2011] EWCA Civ 1519).