| DISCRIMINATION — Race — Burden of proof — Claim of victimisation — Whether reverse burden of proof to be applied — Race Relations Act 1976, s 54A (as inserted by Race Relations Act 1976 (Amendment) Regulations 2003 reg 41) — Council Directive 2000/43/EC, art 8
Oyarce v Cheshire County Council (Equality and Human Rights Commission intervening); [2008] WLR (D) 138
CA: Buxton, Longmore and Richards LJJ: 2 May 2008
S 54A of the Race Relations Act 1976, which implemented Council Directive 2000/43/EC, on its true construction shifted the burden of proof upon a respondent to disprove discrimination in relation only to a complaint of discrimination and not to a complaint of victimisation.
The Court of Appeal so stated in a handed down judgment dismissing an appeal of the claimant, Lucien Oyarce, from a decision of the Employment Appeal Tribunal (Wilkie J, S R Corby and P Gammon MBE) [2007] ICR 1693 handed down on 13 June 2007 which, holding that the burden of proof of the respondent applied only to the complaint of discrimination, had reversed the decision of an employment tribunal sitting in Shrewsbury (Ms D Shotter, chair, Mrs C A Littler and Mrs J Upshall) promulgated on 16 June 2006. The claimant alleged racial discrimination and victimisation in relation to the employer’s failure to give her an opportunity to apply for a particular post.
BUXTON LJ said that the question was, as it had been before the appeal tribunal, to which categories of cases the rule as to burden of proof introduced by s 54A applied. The court ought to interpret national law so far as possible in order to achieve the result sought by the Directive. The Directive dealt with the reversal of the burden of proof and with victimisation in separate articles, and art 8, relating to reversal of the burden of proof, was limited to cases complaining of a breach of the principle of equal treatment: that was, by art 2.1, direct or indirect discrimination based on race or ethnic origin. There was therefore nothing in the wording of the Directive to suggest that the reversal of the burden of proof was intended to apply also to the distinctly different case of victimisation. S 54A had been introduced into the Race Relations Act 1976 (by reg 41 of the Race Relations Act 1976 (Amendment) Regulations 2003) in order to comply with the requirement imposed by art of the Directive 8. The “principle of equivalence” as understood in Rewe v Landwrirtschaftskammer fur das Saarland Case 33/76 [1976] ECR 1989 was limited to the situation that made it necessary. Because of the need for effective assertion of Community rights in the domestic legal order, procedural rules applying to such actions should be no less favourable to the Community citizen than the rules of the domestic legal system that applied to “similar actions of a domestic nature”: ie actions that did not involve the assertion of a Community right. Even if a right to claim victimisation were a “Community right” in the sense in which that expression was used by the Advocate-General in the Rewe case, it was difficult or impossible to see how the absence of a reverse burden made the assertion of that right impossible or excessively difficult. It was both puzzling and ironic that it should be thought appropriate or necessary to apply the principle of equivalence to a case where the national state was already subject to the obligation of effective transposition, which placed much more demanding requirements on the organs of the member state, including its legislature, than did the principle formulated in the Rewe case. His Lordship would not make any reference to the Court of Justice of the European Communities.
LONGMORE LJ gave a concurring judgment.
RICHARDS LJ agreed with both judgments.
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Appearances: Heather Williams QC and Nicholas Toms (Thompsons, Manchester) for the claimant; Paul Gilroy QC (County Solicitor, Cheshire County Council, Chester) for the employer; Robin Allen QC (Solicitor to the Equality and Human Rights Commission) for the Equality and Human Rights Commission, intervening.
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