Legal Updates

Employment Law – Race Discrimination Two-Stage Test – Race Relations Act – Court of Appeal

The recent case of Brown v Croydon London Borough Council and Another [2007], concerned a section of the Race Relations Act 1976 (“the Act”). The employee presented an originating application to an employment tribunal alleging that he had been discriminated against on the grounds of his race. As there was no actual comparator, he had to rely on a hypothetical comparator. His claims were dismissed, and he appealed to the Employment Appeal Tribunal (EAT). He contended that the tribunal had not applied the two-stage test required by s.54A of the Act. This provision had been inserted into the Act in order to give effect to Council Directive (EC) 2000/43 and therefore implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.

Section 54A of the Act provides as follows:

'(1) ..This section applies where a complaint is presented under section 54 and the complaint is that the respondent… (a) has committed an act of discrimination, on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in section 1(1B)(a), (e) or (f), or Part IV in its application to those provisions, or (b) has committed an act of harassment.

(2)… Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent… (a) has committed such an act of discrimination or harassment against the complainant, or (b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination or harassment against the complainant, the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act'.

The EAT dismissed his appeal on the basis that, particularly when dealing with the question of hypothetical comparators, it was both difficult and artificial to separate out the two limbs of ‘less favourable treatment’ and ‘the reason why’. It decided that in the circumstances of the instant case, where the facts themselves were not in dispute in any fundamental way, the tribunal had been fully entitled to focus on ‘the reason why’, and that it had not erred in law in doing so.

The employee appealed to the Court of Appeal against this decision.

His appeal was dismissed.  The Court of Appeal held that:-

§   Despite the authorities relevant to the case giving direction on a two-stage approach, the tribunal had not clearly addressed each of the two stages in express terms.

§   However, It did not follow that the tribunal had made an error of law which would entitle the decision to be reversed if appealed.

§   The primary consideration was whether the tribunal had placed the burden on the employer to explain the reason for the differential treatment of which the employee complained.

§   Far from prejudicing the employee, that approach relieved him of the obligation to establish a case based on facts from which the tribunal could infer an act of discrimination on the part of the employer, without regard to the employer's explanation for the treatment.

§     It was therefore decided that it had not been necessary for the tribunal to address the two-stage test sequentially.

Comment: It is interesting to note that the two-stage test is usually applied in discrimination cases which require the claimant to establish a case of discrimination before looking to adequacy of the respondent's explanation for the offending treatment. But there are cases, of which this is one, in which the claimant has not been prejudiced in matters of proof of discrimination by the tribunal omitting express consideration of the first stage of the test, moving straight to the second stage of the test.

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© RT COOPERS, 2007. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.




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