In the 2007 case Madarassy v Nomura International the Court of Appeal remarked that:
"The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination."
Birmingham City Council v Millwood is an illustration of one way of establishing the “something more” needed to reverse the burden of proof where a difference in treatment has been shown.
A black employee was found to have been treated less favourably than an Asian employee. They were in comparable circumstances – both were family support workers but had originally been teaching assistants. The Asian employee was given a permanent contract while the black worker was not. Various explanations were put forward. These included suggestions that there had been administration problems, that funding for the post of family support worker was limited, and that the Asian worker had asked for a permanent contract and had relevant experience. These were not untrue; but they were not enough of an explanation. This, said the Employment Appeal Tribunal was the “something more” needed to shift the burden of proof.
Mr Justice Langstaff (President of the Employment Appeal Tribunal) set out the reasoning applied as follows:
It seems to us that two issues arise for our determination. The first is whether as a matter of law Mr Beever is correct in his submission that whatever the explanations advanced for the treatment of the Claimant and however inadequate or wrong they might be, the Tribunal could not simply upon the basis of the difference in race and status coupled with the inadequacies of the excuses proffered regard the burden of proof as shifting. If he is right in that submission, then the appeal must succeed and the claim must be dismissed. If he is wrong in that submission, we have to ask whether the Tribunal by asking for "something more" identified that which Mr Swanson submits they did: that there had here been a number of rejected explanations put forward for consideration. Continue reading
A former NHS worker, Elliot Browne, has been awarded £933,115 in compensation for race discrimination and unfair dismissal.
Mr Browne was a divisional director at Central Manchester University NHS Foundation Trust until he was dismissed in 2008. An employment tribunal sitting in Manchester found that Mr Browne had been subjected to discriminatory treatment in the final year of his employment with the Trust. He had spent 34 years working for the NHS and was the first and only black man to hold the position of divisional director for clinical scientific services with the Manchester Trust.
In 2007 his manager raised concerns about overspending in the department and Mr Browne’s perceived lack of "personal leadership". He subsequently raised what the tribunal found to be a "well-founded" grievance about race discrimination, claiming that he had been unfairly singled out for disciplinary action and criticism by comparison with white work colleagues.
Mr Browne maintained that the result was that members of staff "closed ranks" and began disciplinary proceedings which may have led to dismissal. He was signed off work with stress and in May 2008 he was suspended and dismissed. Continue reading
A Leeds employment tribunal has ruled that a Polish worker who was routinely called Borat by a work colleague over a four week period was subjected to race discrimination.
Adrian Ruda joined TEi in Wakefield as a quality assurance engineer. In 2010 he brought a number of claims against his employer, alleging race and sexual orientation discrimination. Most were dismissed by the tribunal which found Mr Ruda’s evidence to be “less than persuasive and less than honest”. However, the complaint that he was called Borat was upheld. This meant that he was subjected to a humiliating and degrading working environment and he was also a victim of direct race discrimination. Continue reading
Bristol City Council has caused a furore by banning white people from applying for a traineeship because it wants to boost staff diversity. According to a report in the Daily Telegraph the two-year training opportunity is only open to people from black or ethnic minority backgrounds because the “normal recruitment process was not rectifying” under-representation. The Council claims it can circumvent race discrimination laws because the traineeship does not guarantee a job at its conclusion. However, the scheme has been criticised as “totally racist” and Tory MP Philip Davies has said “It is an utter outrage and the council should be hanging its head in shame”. On the other hand Bristol Labour MP Kerry McCarthy said, “I would support schemes like this – it gives people an opportunity”.
So what is the law in this controversial area? Perhaps the best known example of positive discrimination is the use of “women-only shortlists” in the selection of parliamentary candidates. Again, the stated reason is to address under-representation. The general position is that positive discrimination in employment is banned although Harriet Harman is known to support a change in the law to address inequality. However, employers can give training and support exclusively to people from disadvantaged socio-economic backgrounds. This is because, technically, it is not regarded as positive discrimination because there is no legislation prohibiting discrimination based on socio-economic background. In Bristol’s case, of some 9000 staff, 8370 are white. When addressing inequality based on race the Race Relations (Amendment) Act 2000 gives public authorities a statutory general duty to promote race equality. The Equality and Human Rights Commission has the power to enforce adherence to the duty by issuing compliance notices. EHRC guidance identifies training as a specific area in which the duty should be applied.