Inconsistencies in discrimination law highlighted

Consultant editor Darren Newman argues that piecemeal developments to our discrimination legislation have left the law in disarray.

We know that discrimination law is complicated, but Okonu v G4S Security Services (UK) Ltd EAT/0035/07 shows that it is also in a mess and needs some serious tidying up. In Okonu, the EAT held that the two-step approach to the burden of proof that we find in all other parts of the discrimination legislation does not apply to claims of race discrimination based on colour or nationality. There is no mechanism for switching the burden on to the employer, and it remains on the claimant throughout.

The problem illustrates the piecemeal way in which our discrimination law has developed. When the Race Relations Act was passed in the 1970s there was no European dimension to race discrimination law. We had to wait for the Treaty of Amsterdam for that. The Treaty came into force in May 1999 and gave the EU the ability to legislate against discrimination in relation to race, disability, religion and belief, sexual orientation and age. A year later the Race Directive (2000/43/EC) was adopted with a view to combating race discrimination. Although, by then, the Race Relations Act 1976 had been in force for a quarter of a century, changes were still needed to comply with the Directive. For example, the definition of indirect discrimination in the Directive was wider than that in the Act and there were no specific provisions in place in relation to harassment. The Directive also provided for a reversal of the burden of proof when a claimant has shown facts from which discrimination can be inferred.

The standard way in which the government implements EU Directives is by regulations issued under s.2(2) of the European Communities Act 1972, which saves the time, expense and trouble of introducing a full Act. However, it is generally accepted that such regulations cannot go further than is necessary to implement the Directive in question. If the government wants to go further than the Directive, primary legislation is required.

The government therefore introduced the Race Relations Act 1976 (Amendment) Regulations 2003 (SI 2003/1626) to bring the Act into line with the Directive. It is here that things start to get messy. The Act outlaws discrimination based on "colour, race, nationality or ethnic or national origins". However, the Directive speaks only of "racial or ethnic origin" and specifically excludes differences in treatment based on nationality. It follows that the changes introduced by the amendment Regulations could apply only to discrimination based on race or ethnic origin, which the government interpreted as extending to national origin. For discrimination based on colour or nationality the old provisions stayed in place.

The result is that the Race Relations Act 1976 makes for pretty tricky reading. It seems to have caught out Mr Okonu, who alleged that he had been discriminated against on the grounds of "colour" - a term not used in the Directive and not expressly covered by the changes made in 2003. The result was that he was unable to benefit from the reverse burden of proof provided for in the Directive. We argue in our comment on that case that, despite the way his claim was phrased, he was alleging discrimination based on race and should have had the benefit of the reversed burden of proof.

We now turn to the recent amendments to the Sex Discrimination Act 1975. These include changes to the law on harassment, widening its scope from behaviour "on the ground of" the complainant's sex to behaviour "related to" sex. The legal basis on which this change has been made applies just as much to other strands of discrimination as it does to sex - yet the Regulations relate only to sex discrimination. This leaves our law on harassment in relation to the other discrimination strands in breach of European law. More mess.

The government is committed to introducing a Single Equality Bill in this parliament - although time is running short. The new Bill should straighten out the provisions on race discrimination, and will also provide an opportunity for the provisions on harassment to be updated. In the meantime, our discrimination legislation is in a pretty ropey state.

perspective@irsonline.co.uk