Okonu v G4S Security Services (UK) Ltd: UKEAT/35/07

EAT: Judge Birtles, Ms N Sutcliffe and Mr PRA Jacques: 11 February 2008

The claimant brought a claim of race discrimination against his employers under section 1(1)(a) of the Race Relations Act 1976, claiming less favourable treatment on racial grounds, as defined in section 3(1), namely “ethnic and national origin” and “colour”. An employment tribunal found that the claimant believed he had been subjected to the treatment of which he complained because of his colour and that there was no evidence that the treatment had anything to do with his ethnic or national origin, and it, accordingly, rejected his claim in so far as it was based on those racial grounds. In relation to the claim that he had been subjected to discriminatory treatment because of his colour, the tribunal held that the provisions of section 54A of the 1976 Act relating to the transfer of the burden of proof did not apply to that racial ground and it applied previous authority and considered whether the facts pointed to a possibility of discrimination which required the employers to give an explanation, concluding that the claimant had not established the factual basis for his claim.

The claimant appealed, contending that the tribunal ought not to have considered the heads of discrimination on racial grounds separately, since a claimant was not required to specify which of the racial grounds he relied on, and had applied the wrong burden of proof to the claim in so far as it was based on colour, as section 54A, in implementing Council Directive 2000/43/EC, had to be purposefully interpreted to cover each of the racial grounds in section 3(1).

The Employment Appeal Tribunal held:
(1) An employment tribunal needed to identify the category of racial discrimination on which a claim was based before or at the substantive hearing partly because colour and national origin were different and so as to identify the correct comparator and enable the respondent to know the case it had to meet. But if a claimant was not sure as to the particular ground of discrimination he could plead all or most of the categories in section 3(1) of the Race Relations Act 1976.

(2) As the provisions of section 54A of the Race Relations Act 1996 were introduced by statutory instrument, rather than by primary legislation, to implement Council Directive 2000/43/EC, they could not extend beyond the Directive, which prohibited discrimination based on “racial or ethnic origin”. Accordingly, the shift in the burden of proof provided for by section 54A applied only to discrimination on grounds of race, ethnic or national origin, as was clear from the language of section 54A(1), and not to discrimination on grounds of colour or nationality. In any event, the claimant had failed to establish that the reason for his treatment was his colour, and the employment tribunal had not applied an incorrect approach and had made all necessary findings of fact and formed its conclusions on the specific allegations made by the claimant.

The appeal was dismissed.

Appearances: Cedric de Lisser (Rae & Co) for the claimant; Paul Rose QC (Blake Lapthorn Tarlo Lyons, Southampton) for the employer.