The controversy revolves around section 54A of the Race Relations Act 1976. This 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 in Oyarce held that the burden of proof does not reverse in victimisation cases, while in Okonu it was found that it also does not reverse in cases of discrimination on the grounds of colour or nationality. This is because the EU legislation that led to the introduction of section 54A covers only discrimination on the grounds of race or ethnic or national origin.

This means that there now appears to be an unsatisfactory two-tier approach to the burden of proof in race discrimination cases. In other words, the burden of proof reverses in all other forms of discrimination and some race discrimination claims but not in others, such as those relating to victimisation and discrimination on the grounds of colour or nationality. As Okonu demonstrates, this can have a major impact on a claimant's chances of success.

So what happens next? The Court of Appeal is hearing Oyarce, but it is difficult to see it doing anything but agreeing with the EAT. As commentators have pointed out [subscription required], its decision appears to be technically correct. It will then be over to the UK Government to change the legislation to bring the burden of proof in race discrimination in line with the other forms of discrimination, most likely as part of the Single Equality Act.

Read the full transcripts of the Oyarce v Cheshire County Council (Microsoft Word format, 84K) and Okonu v G4S Security Services (UK) Ltd (Microsoft Word format, 76K) on the EAT website.