Race Discrimination and the Burden of Proof

Recent case law has led to confusion as to whether Section 54A of the Race Relations Act 1976 applies to direct discrimination on the grounds of someone’s colour.

In Okonu v G4S Security Services (UK) Ltd., the Employment Appeal Tribunal (EAT) held that the rules in Section 54A of the Act on the reverse burden of proof – whereby once an employee has made out a case that his or her employer has committed an act of discrimination, it is then necessary for the employer to prove otherwise in order to defend the claim – only apply to discrimination on the grounds of race, ethnic or national origin and not to cases of discrimination on grounds of colour or nationality because the latter grounds are not covered by the EC Race Directive.

However, in the case of Abbey National plc and Hopkins v Chagger, the EAT rejected this reasoning and held that the reverse burden of proof rules must have been intended to apply to discrimination on the grounds of colour. In its view, it was inconceivable that the Directive was not intended to apply to discrimination which is expressed as being on the ground of colour and that such discrimination is, in practice, necessarily an aspect or manifestation of discrimination based on racial or ethnic origin. In the EAT’s view, when someone brings a claim on the basis of ‘colour discrimination’, they are in fact complaining of discrimination on the grounds of race and ethnic origin, whether they appreciate it or not.

In Milton Keynes General Hospital NHS Trust and Punchard v Maruziva, the EAT preferred the approach taken in Abbey National plc and Hopkins v Chagger, that the purpose of Section 54A is to give effect to article 8 of the EC Race Discrimination Directive and that it was ‘inconceivable that the Directive is not intended to apply to discrimination which is expressed as being on the ground of colour’.

The EAT held that what Section 54A does is to ‘elevate from the permissive to a mandatory drawing of an inference of unlawful discrimination where the Claimant has established a prima facie case of less favourable treatment on one of the prohibited grounds and the Respondent has failed to provide any or any adequate explanation unconnected with that ground’.