Employment Update: Victimisation

28 September 2007

Victimisation claims under the Race Relations Act may be considered in a different way from other unlawful discrimination claims.

Since UK law was brought in line with the EU Equal Treatment Directive, tribunals have applied what is called the ‘reverse burden of proof’ to discrimination claims. In essence, what this means is that once the claimant has established that he was treated differently from another employee, it then falls on the employer to show that this was not because of his race (or any other unlawfully discriminatory reason that the employee may allege).

However, the wording of the Race Relations Act has raised questions as to whether the ‘reverse burden of proof’ applies to claims of victimisation on grounds of race.

The EAT has now decided for a second time, in the case of Oyarce v Cheshire CC that victimisation on race grounds should be treated differently. In Oyarce the EAT decision does nor go into detail on the facts of the case but in the first case where this issue was raised – Quarshie v Serco – the facts clearly demonstrate where the difference lies.

Mr Quarshie alleged that he was treated differently, and thus victimised, in the way that a grievance of his was dealt with because he had made earlier allegations of racism against his employer. The employer accepted that his grievance had been dealt with slowly and the employer had not given him a right of appeal when rejecting it but, because there was no reverse burden of proof, it was open to the tribunal to prefer the employer’s explanation for its conduct – incompetence – without the employer having to explain why there was no racist motive behind its conduct.

Points to note –

  • The EAT accepted that it was only in cases of victimisation on grounds of race that the reverse burden of proof will not apply. In all other discrimination claims – of all types and whether of direct or indirect discrimination, harassment or victimisation, the reverse burden of proof applies. This means that (as was the case in Oyarce) one complaint about a failure to be selected for promotion may succeed as a claim of indirect race discrimination but fail as a claim of victimisation. As claimants frequently make multiple claims in race discrimination cases, it will be important to appreciate this distinction.

  • The decision in Oyarce is being appealed to the Court of Appeal. In order to have consistency of approach it would seem that the wording of the Race Relations Act must be amended. We shall keep our clients informed of any developments.

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