Edozie v G4S Security Services (UK) Ltd and another EAT/0124/09

race discrimination | reverse burden of proof | discrimination of the ground of colour

The Employment Appeal Tribunal (EAT) has held that the reverse burden of proof applies to claims of unlawful race discrimination on the ground of colour.

Mr Edozie, who is black and of Nigerian ethnic origin, brought a claim of direct race discrimination against his employer, G4S Security Services (UK) Ltd, in relation to a number of posts for which he applied but was unsuccessful. The tribunal found that his claim was of discrimination on the ground of colour. Therefore s.54A of the Race Relations Act 1976 did not apply. Section 54A applies where the complaint is that the employer has discriminated unlawfully "on grounds of race or ethnic or national origins” and provides that where the claimant proves facts from which the tribunal could conclude that the employer has committed a discriminatory act, the tribunal is required to uphold the complaint unless the employer provides an adequate non-discriminatory explanation for the treatment (the reverse burden of truth). Instead the tribunal adopted the approach set out in King v The Great Britain-China Centre [1991] IRLR 513 CA, maintaining that the burden of proof was on the claimant although the tribunal could draw inferences of discrimination from the facts. The tribunal did not infer discrimination from the evidence and dismissed Mr Edozie’s claim.

Mr Edozie appealed, arguing that the employment tribunal erred in not applying s.54A. He relied on Abbey National plc and another v Chagger [2009] IRLR 86 EAT, in which the EAT held that discrimination on the ground of colour fell within the meaning of s.54A. The EAT in this case noted the difference in Chagger from the EAT decision in Okonu v G4S Security Services (UK) Ltd EAT/0035/07. The EAT agreed with Mr Edozie that Chagger should apply. However, the tribunal’s failure to apply the correct approach made no difference to the outcome. The EAT agreed with G4S Security Services’ argument that, in relation to Mr Edozie's applications for posts, the tribunal had either made a clear finding on the evidence that it could not find discrimination, or found that his lack of success was on a ground other than race. Therefore Mr Edozie failed to satisfy the two-stage test in Igen Ltd (formerly Leeds Careers Guidance) and others v Wong and other cases [2005] IRLR 258 CA. The tribunal had, despite its misdirection, asked itself the right questions and the answers meant that race discrimination was not established. Therefore the appeal was dismissed.

Case transcript of Edozie v G4S Security Services (UK) Ltd and another (Microsoft Word format, 82.5K) (on the EAT website)

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