2nd May, 2008

Oyarce v Cheshire CC

Court of Appeal upholds EAT ruling that reversed burden 
of proof
does not apply to victimisation 
under Race Relations Act
On 2 May 2008 the Court of Appeal handed down judgment in Oyarce v Cheshire County Council, unanimously upholding the conclusion of the EAT that the reversal of the burden of proof under s.54A of the Race Relations Act 1976 does not apply to claims of victimisation under s.2 of the RRA.
In upholding a complaint of victimisation the Tribunal gave no indication as to how it had approached the question of the burden of proof. The Respondent challenged this finding by way of cross-appeal to the EAT. In response to questions from the EAT the Tribunal clarified that it had applied the reversed burden under s.54A of the RRA. On appeal, the employers argued that this approach was wrong. The EAT agreed, holding that whilst its intuitive approach was to conclude that the “new” provisions in relation to the burden of proof applied, as a matter of pure construction of the domestic legislation and EC Directive 43 of 2000, the reversed burden could not be said to apply, however illogical such a conclusion might appear to be when considering the general tenor and ambit of anti-discrimination law from both a domestic and European perspective.
The Appellant appealed to the Court of Appeal, with the Equality and Human Rights Commission intervening to support her.
The Court of Appeal rejected arguments that there was a genuine difficulty in s.54A caused by either (a) the difference between Article 2 of EC Directive 43 of 2000 and s.3(1) of the RRA, or (b) the use of the word “discrimination” as opposed to the words “racial discrimination” in s.54A. The Court concluded that the effect of the phrase “on grounds of race, national or ethnic origins” (referred to in argument as “the adjectival phrase”) is to exclude claims of victimisation. 
The Court held that analysing s.54A as a matter of orthodox construction, the conclusion of the EAT was correct. The Court then concluded that even if the relevant issue was to be considered other than as a matter of orthodox construction, none of the Appellant’s subsidiary arguments, namely (a) purposive construction, (b) the reference in s.54A to specific parts of s.1 of the RRA, (c) a comparative analysis of ss.26A and 76ZA of the RRA (the provisions about barristers and office-holders), (d) comparing the position under the RRA with other types of discrimination, and (e) Community law rules in relation to equivalence and effectiveness, had merit.
This ruling establishes (a) that it is clear that the draftsman confined s.54A of the RRA to discrimination on the grounds of race or ethnic or national origins and that the reversal of the burden of proof contained in the section can only operate in those cases; (b) that if the draftsman had, in s.54A, simply used the words “has committed an act of discrimination”, the Appellant’s construction would be correct, but that (c) the draftsman, for good reason, used the words “has committed an act of discrimination on grounds of race, ethnic or national origins”, with the consequence that the construction contended for by the Respondent was correct.
The effect of the Court’s conclusion is that in the context of racial discrimination, the draftsman found it necessary to confine the grounds of discrimination to which the reversed burden of proof applies because the relevant Directive itself confined the concept of racial discrimination to certain specific grounds which are more limited than the grounds provided for by the RRA.
The Court unanimously determined that the case need not be referred to the European Court of Justice and refused the Appellant’s application for permission to appeal to the House of Lords.
The ramifications of this decision are potentially enormous. The issue having been touched upon on several occasions by the EAT, this is the first decision at Court of Appeal level on this point. Whilst some may say that this case exposes a serious lacuna in the legislation prohibiting race discrimination, the Court of Appeal has definitively confirmed that there is a two tier approach to the enforcement of claims made under that legislation.
Paul Gilroy QC, of 9 St John Street, Manchester and Old Square Chambers, London, again appeared on behalf of the employers.
Oyarce v Cheshire County Council -  Court of Appeal - Appeal No. A2/2007/1532 (2 May 2008).

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