Chagger v Abbey National plc and another EAT/0606/07

race discrimination | burden of proof | colour

The Employment Appeal Tribunal (EAT) has held that the reverse burden of proof does apply to claims of discrimination on the grounds of colour under race discrimination legislation.

Mr Chagger, who is of Asian origin, successfully claimed before an employment tribunal that he had been discriminated against on the grounds of race in relation to his redundancy. He said in his witness statement that he had been discriminated against on the grounds of his colour. On appeal, the employer argued that the tribunal had incorrectly applied the reverse burden of proof under s.54A of the Race Relations Act 1976 to a case of discrimination on the grounds of colour. Section 54A states that where the complainant proves facts from which the tribunal could conclude that the respondent has committed a discriminatory act, the tribunal is required to uphold the complaint unless the respondent provides an adequate non-discriminatory explanation for the treatment.

The EAT allowed the appeal on the basis that it was clear from submissions during the hearing that Mr Chagger was claiming discrimination on the grounds of race, colour and ethnic origins, so s.54A did apply. However, the EAT went on to address the issue of whether or not the reversal of the burden of proof under s.54A applies in cases of discrimination on the grounds of colour.

The EAT took an opposing view to the one taken by the EAT in Okonu v G4S Security Services (UK) Ltd EAT/0035/07, where it was found that the reverse burden of proof does not apply to claims of discrimination on the grounds of colour or nationality under the race discrimination legislation, and that s.54A had created a two-tier approach to the burden of proof in race discrimination cases. The EAT said that, because s.54A implemented the Race Equality Directive (2000/43/EC), the key issue is the intended effect of the Directive. The Directive is designed to make discrimination on the basis of racial or ethnic origin unlawful. It is very hard to conceive of a case of discrimination on the ground of colour which cannot also be properly characterised as discrimination on the ground of race or ethnic origin. Therefore, the ECJ "would not give even the time of day" to a submission that a claim of discrimination on the grounds of colour did not attract the operation of the Directive. That being the position in EU law, s.54A must be construed so far as possible to give effect to that position.

Case transcript of Chagger v Abbey National plc and another (Microsoft Word format, 62K) (on the EAT website).

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