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11/02/2008

Okonu v. G4S Security Services (UK) Ltd

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Employment Appeal Tribunal

The shift in the burden of proof introduced by the Race Relations Act 1976 s.54A applied only to discrimination on the grounds of race, ethnic or national origin, and not to nationality or colour discrimination.

The appellant (O) appealed against the dismissal by the employment tribunal of his complaint of direct race discrimination against the respondent (G). The tribunal had dismissed O's complaints on the basis that there was no evidence that the treatment of which he complained had anything to do with his ethnic or national origin, as a black African or as a Nigerian respectively, or his colour. O submitted that (1) the tribunal erred in considering his complaints of direct discrimination only on grounds of ethnic and national origin or colour; (2) the Race Relations Act 1976 s.54A should be purposively interpreted so as to cover each of the separate racial grounds in s.3(1) of the Act; (3) the tribunal had erred in examining each allegation in isolation and in failing to consider the evidence and findings as a whole.

HELD: (1) A claimant was required to specify on which of the racial grounds named in s.3(1) of the Act he relied to prove direct racial discrimination under s.1(1). It was essential that the tribunal should be able to identify the issues that it had to hear. Colour was different from national origin and it was essential that the tribunal was able to identify the category at the start of the hearing, if not before. Moreover, the respondent needed to know the case it had to meet. The category informed the definition of the comparator, and the existence of an actual or hypothetical comparator was essential for a claim of direct race discrimination. Where the claimant was not aware of the particular ground upon which he had been discriminated against, he could plead all or most of the categories in s.3(1) and the matter would become clear as the evidence progressed. Finally, the case of Weathersfield Ltd (t/a Van & Truck Rentals) v Sargent (1999) ICR 425 CA (Civ Div) did not support O's submissions, Weathersfield not applied. (2) There was a two-tier system in place for proof in race discrimination cases. The shift in the burden of proof introduced by s.54A of the Act applied only to discrimination on the grounds of race, ethnic or national origin and not to nationality or colour discrimination. It was the less stringent standard of proof set out in King v Great Britain China Centre (1992) ICR 516 CA (Civ Div) and Anya v University of Oxford (2001) EWCA Civ 405, (2001) ICR 847 that applied to cases of nationality or colour discrimination, King and Anya applied. The language of s.54A(1)(a) was clear and no amount of purposive interpretation could override it. (3) There was nothing in the tribunal's findings of fact that showed that it had made an error of law in not drawing an inference of direct race discrimination on the grounds of colour against G. It had not applied a fragmented approach but rather had made all the necessary findings of fact and formed its conclusions on the specific allegations.

Appeal dismissed.

Counsel for the respondent: Paul Rose QC.

[2008] ICR 598

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