Old Square race case sees Appeal Court consider two-tier system

Old Square Chambers is heading to the Court of Appeal in a case that could see a two-tier approach to the enforcement of claims in respect of the Race Relations Act 1976.

In the recent case of Oyarce v Cheshire County Council (2007), the Employment Appeal Tribunal (EAT) held that reversed burden of proof does not apply to victimisation under Section 2 of the act.

The decision, if upheld by the Court of Appeal, will mean that the claimant would have to prove causation under Section 2.

This differs entirely to the position concerning direct and indirect discrimination under the act, where the burden of proof is put on the respondent once the claimant has raised a prima facie case.

Paul Gilroy QC of Old Square, who led the case for respondent Cheshire County Council, said the “ramifications of this decision are potentially enormous”.

“There could be major implications as the ruling effectively introduces a two-tier approach to the enforcement of claims made under that legislation,” said Gilroy. “Some commentators may say that this case exposes a serious lacuna in the legislation prohibiting race discrimination, while others may simply say it follows the statute to the letter.”

In Oyarce, residential social worker Lucien Oyarce claimed she had been victimised by her employer Cheshire County Council, which overlooked her for promotion to the position of group leader.

She succeeded in part before the Employment Tribunal, but pursued an appeal to the EAT. All grounds of her appeal were dismissed, although the point of law on Section 2 of the act came about through a cross-appeal from the council.

Gilroy was instructed by the council’s in-house lawyer Sally Gold. Partner Jo Seery from Thompsons, who was unavailable for comment, instructed Melanie Plimmer of Manchester set Garden Court North for the claimant Oyarce.