Oyarce v Cheshire County Council

EAT: Wilkie J, Dr S R Corby and Mr P Gammon: 13 June 2007

When the claimant, a residential social worker at a home operated by the respondent employer, was refused the position of group leader, she made a claim of race discrimination against the employer and a senior manager. She subsequently withdrew that claim, but later resigned and accepted a position as a social worker at a different establishment, two months after a white male colleague had been made acting group leader. She presented a new complaint, claiming that, by failing to consider her for the group leader post and giving it to a less well qualified white male applicant, the employer had treated her less favourably within the meaning of section 1 of the Race Relations Act 1976. She also made a claim, pursuant to section 2 of the Act, of victimisation by the senior manager, relying on her previous discrimination claim as the protected act. An employment tribunal upheld both those claims, but it dismissed an additional claim that the claimant's resignation was due to the employer's discriminatory treatment, finding that she had resigned, not because of discriminatory treatment, but because the new position was better paid and advanced her career.

The claimant appealed against the dismissal of her resignation claim and the employer cross-appealed on the victimisation claim, contending that the tribunal had wrongly applied the reverse burden of proof under section 54A(2) of the 1976 Act, inserted pursuant to Council Directive 2000/43/EC, when considering that claim.

The Employment Appeal Tribunal held:
(1) In what was essentially a perversity argument an appeal would only succeed where a overwhelming case was made out that the employment tribunal had reached a decision which no reasonable tribunal on a proper appreciation of the evidence and the law would have reached, and the tribunal had been perfectly entitled to conclude on the evidence that the position to which the claimant had transferred was better paid than her existing post and advanced her career and that her decision to change job was not by reason of the discrimination they had found to have occurred.
(2) The provision in article 8 of Directive 2000/43, relating to the reverse burden of proof, referred specifically to direct or indirect discrimination and was not concerned with the obligation in respect of victimisation, which was dealt with in article 9, and the provisions in section 54A of the Race Relations Act 1976 reflected that distinction. The introduction of a reverse burden of proof for some but not all acts of discrimination did not involve a reduction in the existing level of protection but an enhancement in respect of some in manifestations of discrimination, while leaving others much as they were. Accordingly, the reverse burden of proof did not apply to claims of victimisation, and the employment tribunal erred in deciding the claimant's victimisation claim on that basis instead of applying the common law approach.

The appeal was dismissed and the cross-appeal was allowed.

Appearances: Melanie Plimmer (Thompsons, Manchester) for the claimant; Paul Gilroy QC (Cheshire County Council Legal Services, Chester) for the employers.