Oyarce v Cheshire County Council

In this appeal we have to determine the true construction of section 54A of the Race Relations Act 1976 [the RRA], inserted into that statute by the Race Relations Act (Amendment) Regulations, in performance of the United Kingdom’s obligation to transpose into domestic law Directive 2000/43/EC on equal treatment of persons irrespective of racial or ethnic origin [the Directive].

The features of the Directive and of the domestic legislation with which we are concerned are two fold. First, both make provision for the reversal of the burden of proof in certain cases. That process means that where the claimant proves facts from which the tribunal could conclude that the respondent had committed a relevant act against the respondent, the claimant wins unless the respondent proves that he did not commit such an act. Second, both forbid victimisation: that is, the exposure of a person to adverse treatment because they have made or been involved in a complaint about a breach of the equal treatment obligation. The dispute between the parties is as to whether in the RRA the reversal of the burden of proof only applies in cases where the complaint is of discrimination on grounds of race, as the EAT concluded; or whether, as the appellants contend before us, that requirement extends also to cases where the complaint is of victimisation.

This issue was discussed before us in purely general terms, without reference to the actual facts of the case. It is therefore not necessary to say more than that Mrs Oyarce brought proceedings against her employer complaining of a failure to give her the opportunity to apply for a particular post. She alleged that that failure was the result both of discrimination on grounds of race and of victimisation because of earlier proceedings that she had brought alleging racial discrimination. The employment tribunal upheld the latter complaint, in the course of doing so applying the reverse burden of proof.

The question before us, as it was before the EAT from whom this appeal is brought with the leave of that tribunal, is therefore to determine in what categories of cases that rule as to burden of proof applies. That requires close consideration of both domestic and Community legislation, the most significant parts of which I set out for convenience in the next section of the judgment.

Part I of the RRA sets out “Discrimination to which Act applies”. The first case is set out under the cross-heading “racial discrimination” in section 1, sub-section (1)(a) of which addresses what is conventionally called “direct” discrimination and sub-section (1(b) “indirect” discrimination:

Racial discrimination

(1)

A person discriminates against another in any circumstances relevant for the purposes of any provision of the Act if –

(a)

on racial grounds he treats that other less favourably than he treats or would treat other persons; or

(b)

he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but [which in practice affects one racial group in a disproportionate way]

In order to understand this provision it is necessary to look at the RRA’s definition of racial grounds and racial group, which is to be found in section 3(1):

3(1) In this Act, unless the context otherwise requires-”

“racial grounds” means any of the following grounds, namely colour, race, nationality or ethnic or national origins;

“racial group” means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person’s racial group refer to any racial group into which he falls

“Discrimination by way of victimisation” is then dealt with in section 2:

(1)

A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has [inter alia]

(b)

given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act

Section 2(1)(b) is specifically referred to in order to underline that while victimisation will, probably, take place against a person who has brought proceedings or taken other steps complaining of racial discrimination against himself, the prohibition extends to the victimisation of witnesses or supporters who may themselves have no complaint on racial grounds.

It will have been noted, importantly for the issues in this appeal, that victimisation is described in section 2 as a species of discrimination. That is further elucidated in another definitional sub-section, section 3(3):

In this Act-

references to discrimination refer to any discrimination falling within section 1 and 2; and

references to racial discrimination refer to any discrimination falling within section 1

We then come to the provision that is at the heart of this appeal, section 54A on “Burden of proof: employment tribunals”:

(1)

This section applies where a complaint is presented under section 54 and the complaint is that the respondent-

(a)

has committed an act of discrimination, on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in section 1(1B)(a), (e) or (f), or Part 1V in its application to those provisions or

(b)

has committed an act of harassment.

(2)

Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent-

(a)

has committed such an act of discrimination or harassment against the complainant, or

(b)

is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination or harassment against the complainant,

the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act.

It is only necessary to note at this stage that nothing turns in this appeal on the RRA’s provisions about harassment.

As we have seen, the objective of these sections is to transpose into English law certain of the provisions of the Directive. The articles in question are articles 8.1 and 9, which read:

Article 8

Burden of proof

Member States shall take such measures as are necessary,

in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principal of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.

Article 9

Victimisation

Member States shall introduce to their national legal systems such measures as are necessary to protect individuals from any adverse treatment or adverse consequence as a reaction to a complaint or to proceedings aimed at enforcing compliance with the principle of equal treatment.

Here again, the only point that we need to note at this stage, though it is of importance for the arguments in this appeal, is that by article 2 the Directive addresses only discrimination based on racial or ethnic origin. It therefore omits other qualities that are covered by “racial grounds” in the RRA, namely colour, nationality and national origins.

The relevant terms of the Directive are set out above. It will have been noted that it deals with the reversal of the burden of proof and with victimisation in separate articles, and that article 8, relating to reversal of the burden of proof, is limited to cases complaining of a breach of the principle of equal treatment: that is, by article 2.1, direct or indirect discrimination based on race or ethnic origin. There is therefore nothing in the wording of the Directive to suggest that the reversal of the burden of proof was intended to apply also to the distinctly different case of victimisation.

That difference is underlined by the arrangement of the Directive. Articles 8 and 9 both appear in chapter II of the Directive, “Remedies And Enforcement”. There, they are presented as having parallel, not interrelated, effect: that is, that each separately is a weapon to protect the rights conferred by chapter I. It would have been possible to provide that the article 8 process should additionally be used to reinforce the protection from victimisation found in article 9; but what is in fact provided is that article 8 joins article 9 as another means of reinforcing the protection from discrimination provided by chapter I. And the language of article 9, speaking of the protection of “individuals” from adverse consequences of reaction to proceedings, parallels the exclusion from that protection of the necessity that the individual should have been attacked on racial grounds that we have already noted as a feature of section 2 of the RRA. That distinction between articles 8 and 9 is also supported by the different language of recitals 20 and 21, the former simply requiring adequate judicial protection against victimisation; the latter specifically providing for the shifting of the burden of proof where there is a prima facie case of discrimination

It is convenient to mention as part of this general exposition that an issue of some importance when the court considers whether a member state has performed its obligation of transposition is the need for the state to provide effective remedies for its citizens in asserting the rights envisaged by the Directive in question. To identify that obligation, which differs from other issues as to effectiveness in Community law that I will have to address later in this judgment, I call the obligation one of effective transposition. That principle underlies a case in the ECJ shown to us, admittedly for a different purpose, by the Commission for Racial Equality, since the hearing transformed into the Equality and Human Rights Commission [CRE], which intervened in this appeal by permission of a different constitution of this court.

Case C-460/06 [2008] ICR 420 (Paquay) concerned two directives, Directive 76/207 which in general terms forbids discrimination between men and women in regard to access to employment, that prohibition being by article 2(3) without prejudice to the specific protection of women, particularly as regards pregnancy and maternity; and Directive 92/85 on the specific protection of pregnant workers and those who are breastfeeding, article 10 preventing the dismissal of such persons during a specific protected period. Ms Pacquay was not dismissed during that period, but her employer had made arrangements to dismiss her when the period was over. That pre-planning during the prohibited period was held to be inconsistent both with Directive 92/85 [ECJ, § 38] and with Directive 76/207 [ECJ, §40]. The ECJ then had to consider whether the sanctions provided by the Belgian state for the breach of Directive 76/207 complied with the obligation to provide sanctions against conduct inconsistent with the terms of a Directive that were

sufficiently effective to achieve the objective of the Directive in question and should be capable of being effectively relied on by the persons concerned before the national courts [Case C-271/91, [1993] ICR[22] (Marshall), cited in Paquay at §43]

The ECJ held, in its §§ 53-54, that to be regarded as effective in that sense the sanctions provided by Belgian law for conduct inconsistent with Directive 76/207 must be at least as effective as the sanctions provided by Belgian law for conduct inconsistent with Directive 92/85. But that was a matter of simple commonsense, granted that the conduct complained of had been found to be in breach of both of those Directives.

I have set out Paquay in somewhat laboured terms because the case reappears at a later stage of the argument. The case is, however, also of value for its summary of the terms of and reason for the obligation of effective transposition. That obligation was relied on by the CRE in an argument that addressed the origins of article 9 of the Directive.

The CRE reminded us that concern about victimisation had first emerged in Community law in a case of discrimination on grounds of gender, Case C-185/97 [1999] ICR 100 [Coote]. At its §24 the ECJ said:

The principle of effective judicial control laid down in article 6 of [Directive 76/207 on equal treatment] would be deprived of an essential part of its effectiveness if the protection which it provides did not cover measures which, as in the main proceedings in this case, the employer might take as a reaction to proceedings brought by an employee with the aim of enforcing compliance with the principle of equal treatment.

It is confirmed by Baroness Hale of Richmond in §35 of her speech in Derbyshire v St Helens MBC [2007] ICR 841 that article 9 of our Directive represents the implementation by the Community legislator in the field of race discrimination of the guidance given by the ECJ in the field of sex discrimination. However, the argument in our case based upon the perceived need to extend the protection required by Coote into the field of race discrimination again demonstrates the limited reach of article 9. The Community legislator clearly demonstrated, by separating article 9 from article 8, that he thought that the effective protection for which Coote had called would be sufficiently achieved by providing sanctions against victimisation. He did not think it necessary to take the further step, and reinforce those sanctions by the provision of a reverse burden of proof in victimisation claims.

Article 9 is the text that the member state is obliged to transpose into domestic law, under the provisions of article 249EC:

A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.

There is nothing in Community law to prevent a member state from introducing into its domestic law provisions that go further than a directive requires in providing protection in the area addressed. In our case, however, there is a complication in domestic law, to which again the CRE valuably drew our attention. Section 2 of the RRA, forbidding victimisation, has stood in the RRA since it was passed in 1976, and therefore in 2000 no specific step was required of the United Kingdom in response to article 9 of the Directive. Not so with article 8, novel in United Kingdom law at least in the form that it took in the Directive; and thus section 54A was introduced into the RRA to comply with the requirement imposed by article 8. But section 54A was not introduced by primary legislation, but by subordinate legislation, regulation 41 of the Race Relations Act 1976 (Amendment) Regulations 2003. The vires for that power is to be found in section 2(2) of the European Communities Act 1972, which permits the making of regulations for the purpose of implementing any “Community obligation” of the United Kingdom. The Community obligation in this case has to be the obligation imposed by article 249. Accordingly, it was submitted, section 54A had to be construed as implementing the requirements of the Directive, but as doing no more than that.

The considerations set out in §§ 11-17 above form the crucial context in which to assess the issue of construction that divides the parties in this appeal.

This section applies

where a complaint is presented under section 54 and the complaint is that the respondent-

(a)

has committed an act of discrimination, on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in section 1(1B)(a), (e) or (f), or Part 1V in its application to those provisions

As Mr Allen QC pointed out on behalf of the CRE, all would be clear if the legislator had referred to “racial discrimination”. Then it would follow from section 3(3)(b) that he was limiting himself to section 1 discrimination. But with the use of the expression discrimination “on grounds of race or ethnic or national origins” everything had been thrown into doubt. In his submissions Mr Allen referred to those words as “the adjectival phrase”, and I will from time to time adopt that felicitous shorthand.

By contrast, both of the protagonists said that, far from there being any doubt, the intention of the legislator was clear. Both of them relied on the presence of the adjectival phrase, but advanced strongly differing explanations of why it forms part of section 54A.

In cogent submissions for the employer, supporting the decision of the EAT in this case and in the subsequent appeal in Munu v Great Ormond StreetHospital NHS Trust (5 November 2007), Mr Gilroy QC pointed to the clear distinction made in the Directive between discrimination (section 1 of the RRA) and victimisation (section 2 of the RRA), and the failure in the Directive to apply the reverse burden of proof to victimisation: see §§ 11-12 above. The domestic legislator was obliged to respect that distinction, and it should be assumed that he had done so. Had he spoken of “discrimination” and no more, then by the application of the definition provisions, section 3(3)(a) set out in §7 above, that would have been a reference to any discrimination falling within section 1 or 2: which includes victimisation. But that is what the domestic legislator did not do. Rather, he employed the adjectival phrase, and limited himself to discrimination on grounds of race or ethnic or national origins. That, said, Mr Gilroy, was a clear indication that section 54A was limited to section 1 discrimination. That is discrimination on “racial grounds”, which by section 3(1) means any of colour, race, nationality or ethnic or national origins. The legislator could not adopt that list, because the Directive addresses only discrimination on grounds of racial or ethnic origin, and the domestic legislator was obliged, or at least must be assumed to have intended, to track the terms of the Directive: see §17 above. He therefore confined himself to the cases mentioned in section 1 of the RRA (another provision that has stood in the Act since 1976), though with what appears to be the precautionary addition of “national origins” as a sub-set of ethnic origins.

Mr Gilroy reinforced these submissions by saying that it would be at best inept to read discrimination “on grounds of” race or ethnic or national origins as extending to victimisation, since it was accepted that victimisation occurred when a person acted in reaction to one of the protected acts specified in section 2 of the RRA. Unlike section 1 discrimination, victimisation was not defined as something done on grounds of race, etc, and might be committed against a person who had no complaint at all on grounds of race, etc. There is considerable force in that submission. Mr Gilroy accepted, as had the EAT, that his construction might seem to produce a surprising outcome; because there is no obvious reason why an applicant who complains of victimisation because he has brought proceedings under the 1976 Act should be subject to a different procedural regime from that which he would have enjoyed in those original proceedings. But as the EAT also observed, that is what the statute says, and that is what the courts must apply; particularly when the same distinction has been made by the Community legislation that the statute transposes into domestic law.

In equally cogent submissions Miss Williams QC said that the EAT had been plainly wrong. In the lexicon of the RRA “discrimination” unambiguously embraced both section 1 and section 2 discrimination. The addition in section 54A of the words “on grounds of race or ethnic or national origins” was in the legislation not to exclude reference to victimisation, by limiting the case to issues arising under section 1, but only to remove from the reach of section 54A cases of section 1 discrimination that complained of discrimination on grounds of nationality or colour: to which as we have seen the Directive, the draftsman’s guide, does not extend.

It will be convenient first to dispose of what Miss Williams frankly called her fall-back position, set out in her second skeleton but not much relied on in oral argument. If weight other than that which she would ascribe to it had to be placed on the adjectival phrase, that could be accommodated by construing section 54A(1) as embracing only claims of victimisation where the relevant “protected act” for the purpose of section 2(1) was related to a claim or allegation of (section 1) discrimination on grounds of race or ethnic or national origins, but not otherwise. Mr Gilroy had little difficulty in showing that that would not only introduce a difference between cases of victimisation for which there was no justification, but would also require the formidable writing of definitional language into section 54A. And the nice distinction between victimisation that does or does not relate to different kinds of section 1 discrimination would provide good opportunities for litigation about what is after all only an issue of tribunal procedure. As was in effect conceded, a different route must be found to the application of the reverse burden of section 54A to cases of victimisation.

That route is as set out in §23 above. However, there are also significant difficulties about that analysis, at least as a matter of orthodox statutory construction. It is a necessary premise of the appellant’s argument that in the adjectival phrase discrimination on grounds of race or ethnic or national origins “discrimination” embraces both “racial” discrimination and victimisation. In a normal reading of the phrase, therefore, on grounds of race etc must apply to both of those cases. There are two difficulties about that. First, as suggested in §22 above, it is difficult, and limiting of the concept of victimisation that has been part of English law since 1976, to speak of victimisation on grounds of race, etc. Second, that dilemma has to be avoided by saying, as it is said by the appellant, that the reverse burden applies in all cases of section 2 discrimination by victimisation, but only in section 1 cases of discrimination where the complaint is not of discrimination on grounds of colour or nationality. On that reading, on grounds of race etc in section 54A does not apply at all to section 2 discrimination, victimisation; and the section itself applies only to some but not all of the cases of section 1 discrimination. That requires the wording to do a great deal of work that is not apparent on its surface, and requires the reader to make significant assumptions that are not forced on him by the statute.

If section 54A was intended to make the distinctions that Miss Williams claimed, then it would have been easy for the draftsman to have said so in terms. But again that is what the domestic legislator did not do. The omission of any such statement, and the fact that to reach the reading that the appellant supports requires a very artificial construction of the language that the legislator did use, indicates that that reading was not intended. And that that reading was not intended by the legislator is strongly reinforced by the fact that the wording that he did use, in the EAT’s understanding of it, tracks the provisions of the Directive that it was his task to transpose.

Accordingly, and looking simply at the matter as a question of orthodox construction, I consider that the EAT came to the correct conclusion. However, Miss Williams and the CRE produced a series of further arguments that they said pointed away from the EAT’s construction. I was not persuaded by any of these, but they all merit serious consideration.

The appellant reminded us of what had been said by Lord Bingham in §2 of his speech in Anyanwu v South Bank Student Unon [2001] ICR 391, that the RRA had been passed to remedy the very great evil of racial discrimination; and must be construed “purposively”. The appellant drew from that that it was to be assumed that the intention of Parliament in the RRA was to provide the widest protection from racial discrimination, which therefore required involved the administration of the victimisation provisions in the terms for which the appellant contended.

The difficulty about this argument is that the prohibition of victimisation stood in the statute that allegedly has this overriding purpose between 1976 and 2003 without anyone thinking, or on any view Parliament providing, that the prohibition would not be adequately effective in the absence of a reverse burden of proof. If the reverse burden does now apply to victimisation, that is not because of purposes or principles to be drawn from the rest of the RRA, but because section 54A can be read as so saying. But section 54A is only in the RRA because of the need to transpose the requirements of the Directive. Therefore, in addressing section 54A purposive construction should proceed on the basis that the draftsman’s purpose was indeed to transpose the terms of the Directive. And terms of the Directive do not include the extension of the reverse burden provisions to cases of victimisation.

There is another consideration that follows from that review of the purpose of section 54A. The obligation of transformation does not require specific legislation on the part of the member state if before the date of the Directive there already exist in the national legal order provisions that are sufficient to ensure the effective achievement of the Directive’s objectives: Case 29/84 [1985] ECR 1661(Federal Republic of Germany) at §29. In the case of our Directive, section 2 of the RRA already made the provision that was required by article 9. The United Kingdom was accordingly under no obligation in Community law to make further provision, over and above the terms of section 2, in respect of protection from victimisation; and there is therefore no reason to read the national legislation as having intended to take such a further step, by creating rules about reverse burden of proof in relation to cases of victimisation.

Section 54A having referred to discrimination on grounds of race, etc, continues by saying that that discrimination must be unlawful “by virtue of any provision referred to in section 1(1B)(a), (e) or (f), or Part IV in its application to those provisions”. The CRE put before us a valuable analysis of those parts of section 1, and concluded in §95 of its intervention that the reference was intended to limit the cases to which section 54A applied to those addressed in the Directive. The appellant however had a different point.

The appellant referred to the extension of section 54A to any act of discrimination rendered unlawful by any provision referred to in section 1(1)(B)(a). Those provisions include Part II of the RRA, relating to discrimination in the employment field. By section 3(3)(a), as we have already seen, “discrimination” means any discrimination falling within sections 1 or 2. So victimisation in the employment field, which is Mrs Oyarce’s case, by this route falls under section 54A. That would be a powerful argument if the appellant’s main contention were correct, and section 54A had not already, by its reference to racial discrimination, limited its scope to discrimination by unequal treatment. In fact, as the CRE explained, the reference to section 1B ensures that section 54A applies to cases complaining of indirect discrimination on grounds of race or ethnic or national origins, which is brought within the statute by a combination of sections 1A and 1B. This also indicates no more than a conscientious decision of the draftsman again to track the terms of the Directive, which in article 2.2 specifically provides that it extends both to direct and to indirect discrimination.

In the end, although this point achieved some prominence in her second skeleton, Miss Williams very fairly agreed that it stood or fell with her main argument. If she was right, it was not needed. If she was wrong, and the preceding words of the section excluded victimisation, the subsequent inferential reference to cases falling under Part II was equally so limited.

These sections make provision in relation to two classes that might not be thought to be the employees to whom the main provisions of the RRA apply: barristers (section 26A) and office-holders (section 76ZA). The present point emerges most clearly in the latter case, where section 76ZA reads:

It is unlawful for a relevant person, in relation to an appointment to an office or post to which this section applies, to discriminate against a person on the grounds of race or ethnic or national origins [in various ways which are then set out]

The words used are the same as those used in section 54A. If, as is claimed by the employer to be their effect there, they exclude discrimination by victimisation, then victimisation in the office-holder case is not covered by section 76ZA. But the Directive extends to office-holders: see recital 12 and article 3.1(a). So if section 76ZA does not extend to victimisation it has not properly transposed the Directive. Accordingly, under the approach most recently stated in Cases C-397/01 to C-403/01 (Pfeiffer) [2005] ICR 1307, applying the Marleasing principle ([1990] ECR I-4135[8]), the court must interpret national law so far as possible in order to achieve the result sought by the Directive. If under that principle section 76ZA has to be interpreted to include reference to victimisation, the same words used in section 54A must have the same meaning.

This argument was not put to the EAT, and only really emerged in the form set out above during oral argument before us. That meant that it did not then benefit from the mature consideration that is required in a case such as this. That mature consideration reveals that this would indeed be a powerful argument were the Marleasing principle a rule, or akin to a rule, of common law interpretation. However, as Lord Steyn pointed out in his speech in Ghaidan v Godin-Mendoza [2004] 2 AC 557 [44]-[45], comparing the position under section 3(1) of the Human Rights Act 1998, the obligation imposed by the Marleasing principle is more far-reaching than, and distinctly different from, the ordinary rules of common law interpretation. The application of that principle to one part of a statute in order to achieve a result sought by a Directive does not therefore determine the meaning of that part of the statute in common law terms; and therefore does not necessarily lead to the application of the common law principle that the same words should mean the same thing everywhere they are used in a particular statute.

I ventured to expand on these considerations in §§ 39-40 of my judgment in R(Hurst) v London Northern District Coroner [2005] 1 WLR 3892. For similar reasons to those set out there I do not accept that, even if section 76ZA has to be read as extending to the victimisation of office-holders, that must drive the extension of section 54A to victimisation; and the more so when, in the present case, the exclusion of victimisation from the rule in section 54A appears to be in line with the outcome sought by the Directive.

The appellant pointed out, as had the EAT, that the reverse burden of proof applies to victimisation claims under all other United Kingdom anti-discrimination legislation. The provisions (more fully identified after a request from the court in the light of the more extensive argument addressed in §§39ff below) were the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001; the Employment Equality (Religion or Belief) Regulations 2003; the Employment Equality (Sexual Orientation) Regulations 2003; the Disability Discrimination Act 1995 (Amendment) Regulations 2003; and the Employment Equality (Age) Regulations 2006. The comparison with those other anti-discrimination provisions was used in the written procedure to urge the application to our case of the principle that legislation, at least in the social sphere, that addresses similar problems should be construed if possible as a complete code. As Lord Bingham of Cornhill put it in Anyanwu v South Bank Student Union [2001] ICR 391[2]:

Since the 1976 Act is one of a trio of Acts (with the Sex Discrimination Act 1995 and the Disability Discrimination Act 1995) which contain similar statutory provisions although directed to different forms of discrimination it is legitimate if necessary to consider those Acts in resolving any issue of interpretation which may arise on this Act

That however is a principle of construction. By purposive construction, such as I have referred to in §28 above, it should be assumed that the objective of statutes in the same social field is, broadly, the same, and some differences of language in implementing the respective codes should not be permitted to create differences in their effect. But, as already suggested in §29 above, our case is different. The problem for the appellant is that she has to confront a statutory provision that on the construction adopted by the EAT makes no reference to victimisation at all. If that statutory wording is to be rewritten to track the other statutory provisions that do expressly provide for a reverse burden of proof in cases of victimisation, the process will be one not of construction, but of reading into section 54A as an effectively legislative operation.

That was how the case stood during the written procedure, with only somewhat perfunctory reference to the terms of the other legislation. However, during oral submissions the point took on, or was perceived as having, a different aspect, which did indeed move it from being an argument of construction to one of legal policy. Most of the legislation referred to above was passed to transpose the provisions of Directive 2000/78, on equal treatment in employment and occupation. That directive was issued very shortly after our Directive 2000/43, and is cast in very similar terms. In particular, articles 10 and 11 of Directive 2000/78, respectively on burden of proof and on victimisation, are in exactly the same terms as article 8 and 9 of Directive 2000/43. But when the United Kingdom came to transpose those requirements into the various aspects of domestic law to which Directive 2000/78 applied, in every case the provision as to reverse burden of proof was extended to cases of victimisation. An example, no different in its terms from other cases, is to be found in regulations 28 and 29 of the Employment Equality (Religion or Belief) Regulations 2003. Those Regulations, like the Race Relations Act (Amendment) Regulations 2003, rely for their vires on section 2(2) of the 1972 Act.

The argument based on this contrast, which was principally advanced by the CRE, was simple. Either race discrimination was in some way different from other forms of discrimination, and thus required or at least justified a different regime of protection; or the paradigm case of protection in respect of victimisation was indeed limited to that transposed into the RRA, and the draftsmen of the other provisions had extended the protection beyond what the various Directives required by bringing victimisation under the rules as to reverse burden of proof. Mr Allen said that there was no justification for making the former assumption; and the course hypothesised on the part of the draftsmen had not been open to them because of the limited vires that was provided by section 2(2) of the 1972 Act. The only answer to the dilemma was to say that section 54A, like the other provisions, extended the reverse burden to cases of victimisation, and that step had in all of the examples, including section 54A, been intra vires.

I well accept that the contrast between section 54A and other anti-discrimination provisions raises some difficult general issues, but I am not persuaded that it forces us to adopt a reading of section 54A that, for the reasons that I have set out, I do not otherwise find convincing. In particular, it was a necessary step in the argument that article 9 means more than it says; and that the draftsman of section 54A proceeded on the same assumption as the draftsmen of the other similar provisions are to be taken to have adopted, that article 9 required the extension of the rules on burden of proof to cases of victimisation. The difficulty about that argument is that the objective, and the agreed limit of the powers, of the draftsman was to transpose articles 8 and 9. I do not see how it can be assumed that he performed that task in terms that the wording of articles 8 and 9 and the wording of section 54A will not bear just because in other acts of transposition a different view appears to have been taken of what provisions in the terms of articles 8 and 9 require.

Those doubts are reinforced if we remind ourselves of the obligations in Community law of the national court to interpret legislation implementing a Directive in accordance with the objective and wording of the Directive. As the ECJ said in Case 14/83 [1984] ECR 1891 (von Colson) at § 26:

in applying the national law and in particular the provisions of a national law specifically introduced in order to implement [a Directive], national courts are required to interpret their national law in the light of the wording and the purpose of the directive in order to achieve the result referred to in the third paragraph of Article [249 EC].

The appellant has argued in these proceedings that “the wording and the purpose” of Directive 2000/43 is to produce the maximum possible effectiveness of anti-discrimination provisions, which agenda necessarily mandated the provision of a reverse burden in victimisation cases. However, that plainly is not the case when one looks, as the ECJ tells us to look, at the wording of the Directive. Construing section 54A in the light of the Directive leads to only one answer, whatever may have been done or thought in relation to other domestic legislation cast in different terms.

I therefore conclude, after a much more extensive survey of the issues than was put before the EAT, that their construction of section 54A was correct.

That however leaves a further argument advanced by the CRE, and fully adopted by the appellant. Up to this point in the argument the CRE committed itself to no more than the view that section 54A was ambiguous, and the arguments on each side nicely balanced, though perhaps with some inclination towards the appellant. But the CRE was adamant that that all changed when one turned to Community law. The ambiguity had to be resolved by the application of general principles that were conclusive in favour of the appellant. To those I now turn.

Two, analytically different, issues arise. First, does section 54A properly transpose the terms of the Directive? Second, even if the Directive has been properly transposed, does the omission of a reverse burden in victimisation cases infringe the obligation of the member state to give effective protection in victimisation cases?

As to the first of these questions, it is really impossible, for the reasons set out at length in the preceding parts of this judgment, to argue that the Directive by its wording imposes an obligation on member states to apply the reverse burden of proof to victimisation claims, and I did not understand the CRE so to contend. But the CRE did say that more general obligations of Community law required that step of a member state.

The CRE took as its text for those obligations the comprehensive summary of the relevant law included by Sharpston A-G in her Opinion in Case C-432/05 (Unibet):

32.

[It is a principle of Community law], first laid down in Rewe 1, (Case 33/76 Rewe v Landwrirtschaftskammer fur das Saarland [1976] ECR 1989, paragraph 5) that it is for the domestic legal system of each Member State to determine the procedural conditions governing actions at law intended to ensure the protection of Community law rights, provided that those conditions are not less favourable than those relating to similar actions of a domestic nature (principal of equivalence) and do not make it impossible in practice to exercise those rights (principle of effectiveness). That approach was confirmed in Rewe 11, (Case 158/80 Rewe v Haupzollamt Kiel [1981] ECR 1805, paragraph 44, emphasis added) where the court stated that the Treaty was not intended to create new remedies in the national courts to ensure the observance of Community law other than those already laid down by national law and that the system of legal protection established by the Treaty implies that it must be possible for every type of action provided for by national law to be available for the purpose of ensuring observance of Community provisions having direct effect.

33.

Those principles have been constantly reiterated by the Court; see for example Peterbroeck, (Case C-312/93 [1995] ECR 1-4599, paragraph 12) where it was stated that, in the absence of Community rules governing a matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from the direct effect of Community law, subject to the proviso that such rules must not be less favourable than those governing similar domestic actions nor render virtually impossible or excessively difficult the exercise of rights conferred by Community law.

As the Advocate-General says, these are well-worn and familiar principles of Community law, repeated in a multitude of cases. But it is not merely pedantic to say that the case in which the Advocate-General referred to them was very far away from our case, not merely in its facts but more importantly in its characterisation in Community law. Unibet sought to advertise betting services in Sweden, prohibitions in Swedish law on such advertisements having been declared by the ECJ to be contrary to arts 43 and 49. The litigation concerned various procedural issues arising out of the efforts of Unibet to assert in the Swedish courts its right (in Community law) to advertise in Sweden. The effect in Community law of the obligation to transpose a Directive is to oblige the state to provide new rights in domestic law that fulfil the requirements of the Directive. By contrast, where a Community citizen seeks to assert rights that have already been conferred on him directly by Community legislation, rather than asserting that rights envisaged by a Directive should be conferred on him by his national legal order, the obligation of the member state is to provide remedies in the national legal order for the protection of existing Community rights, according to the rules summarised by the Advocate-General.

The rules set out by the Advocate-General were therefore not intended to address the different question of the legislative obligation of the member state when transposing a Directive. That difficulty was not addressed in the written procedure, and was only touched on in passing in oral argument. However, after argument had closed the CRE put before us three cases in the ECJ which, it said, demonstrated that the rules set out by Advocate-General Sharpston applied indifferently to all Community obligations, and thus bound a member state when it was performing its obligation to transpose a Directive. Those cases must now be considered.

Case C-231/06 (Jonkman), although formulated in the context of the Equal Pay Directive, carries the present point no further. Paragraphs 36ff of the judgment show that the case was concerned with a failure on the part of the national legal order to implement directly effective rights that had been recognised by the ECJ: a case of remedies for breach of directly effective Community rights, made such by the judgment of the Court, that would fall within the Rewe principle.

Case C-460/86 (Paquay), described in § 14 above, was said by the CRE to demonstrate the application of the Rewe principle of equivalence to the transposition of a Directive, since the ECJ had required the sanctions provided in support of one Directive to be no less than the sanctions provided in support of a different Directive. But what the ECJ was addressing in Paquay was the obligation of effective transposition, as to which see §13 above. As a matter of fact and practicality that would not be assumed to be achieved in the one case when the sanctions were less than in another case, because the two cases were virtually the same. That has nothing to do with the principle of equivalence, which (as explained further in § 54 below) requires comparison not between two implementations of Community requirements, but between one implementation of Community requirements and the sanctions provided in similar actions of a domestic, not Community, nature.

Case C-180/04 [2006] ECR I-7251 (Vassallo) does come much closer to our concerns. The case addressed the effect in national law of Directive 1999/70EC, that obliged member states to impose on state institutions (including, see § 26, the respondent in that case) mandatory rules as to the stability of long term employment. At its §37 the ECJ said that the effective transposition of a Directive must be assessed according to the Rewe principles of equivalence and effectiveness. The authorities cited in support of that view were Peterbroeck (see §34 of the exposition of Advocate General Sharpston set out in §47 above) and Case C-212/04 [2006] ECR I-6057 (Adeneler). Peterbroeck concerned a limitation provision of domestic law that was relied on to prevent the raising of issues relating to the claimant’s right of establishment in Community law. It therefore directly raised the issue of equivalence between the effect of procedural rules of the national court upon domestic and upon Community claims, and evoked the classic statement of Community law on that subject that is set out by Advocate General Sharpston in §34 of her Opinion. The case had nothing to do with the transposition of Directives. Adeneler, a case that did relate indirectly at least to the effect of Directives in national law, simply cited the Peterbroeck formulation at §95 of the judgment without further analysis or explanation of its relevance.

It has to be said, therefore, that the application of the Rewe principles to the transposition of Directives that appears to have occurred in Adeneler and Vassallo marks a new departure. If the issue mattered for the determination of this appeal I would be strongly inclined to invite the ECJ to elucidate the exact status and bearing of these recent cases. However, on the facts of this case that step would not be justified, because if the verbal statement of the Rewe principles is applied to our case it rapidly becomes clear that they cannot have the effect claimed for them in the CRE’s argument.

The “principle of equivalence” as understood in Rewe is limited to the situation that makes it necessary. Because of the need for effective assertion of Community rights in the domestic legal order, procedural rules applying to such actions should be no less favourable to the Community citizen than the rules of the domestic legal system that apply to “similar actions of a domestic nature”: ie actions that do not involve the assertion of a Community right. That condition was made plain at p 1659G of the judgment of this court in Matra Communications SAS v The Home Office [1999] 1 WLR 1646 (a case shown to us by the CRE):

[An] action for breach of other directly effective Community rights…was one of the comparators relied on before the judge. He correctly held that the comparison was wrong as a matter of Community law, because the comparator must be concerned with similar rights derived wholly from domestic law: per the Advocate General in Levez v TH Jennings (Harlow Pools) Ltd (Case C-326/98) [1999] ICR 521, 528.

The application of that principle to our case falls down even at the level of language. As we have seen in §39 above, the “cognate cases” relied on by the CRE are all, like section 54A, the result of transposing legislation. They are all therefore as much or as little actions of a domestic nature as is a complaint of victimisation under section 2 of the RRA. The contrast between Community and domestic actions that is the basis of the principle of equivalence therefore simply does not apply.

As for effectiveness, the requirement is that the domestic rules should not render the assertion of the Community right impossible or excessively difficult. That wording has been used many times by the ECJ; is the wording of the Advocate-General in her opinion in Unibet; and is the wording of the Grand Chamber in its subsequent judgment in Unibet of 13 March 2007. Even if a right to claim victimisation were a “Community right” in the sense in which that expression is used by the Advocate-General, it is difficult or impossible to see how the absence of a reverse burden makes the assertion of that right impossible or excessively difficult. And it is both puzzling and ironic that it should be thought appropriate or necessary to apply that requirement to a case where the national state is already subject to the obligation of effective transposition. That requirement is explained in §14 above. It places much more demanding requirements on the organs of the member state, including its legislature, than does the principle of effectiveness as formulated in Rewe. The application to the legislation complained of in our case of the formula drawn from the opinion of Sharpston A-G, would do nothing to assist the appellant.

I would not make any reference to the European Court of Justice. I would dismiss this appeal.

I agree. The difficulty has arisen in this case because the relevant European Directive (2000/43/EC) refers, in Article 2, only to discrimination based on race or ethnic origin. The obligation to incorporate into domestic law the reverse burden of proof ordained in Article 8 is, therefore, confined to cases of discrimination based on those grounds. Our own domestic legislation by section 3(1) of the Race Relations Act 1976 (“the RRA”) outlaws discrimination on the grounds of “colour, race, nationality or ethnic or national origins” and was thus already considerably wider than the Directive.

It is clear that the draftsman of what is now section 54A of the Act did not feel it right to apply the reverse burden of proof required by the Directive to discrimination on all 5 of the grounds covered by the RRA but, for reasons which it is difficult to divine, he did add the ground of “national origins” to the grounds of race and ethnic origin set out in the Directive, when he came to draft section 54A. It was suggested in argument that he could not add “colour” or “nationality” because that would be to amend the RRA by statutory instrument which there was no power to do under section 2(2) of the European Communities Act 1972. For my part I rather doubt whether it would be ultra vires to introduce a provision about burden of proof somewhat more widely than was, strictly speaking, mandated by a Directive which required the enactment of burden of proof provision. If it were, the extension of the provision to discrimination on the grounds of “national origins” would itself be ultra vires since the phrase “national origins” is, to my mind, rather different from “ethnic origins”.

Be that as it may, the draftsman has confined section 54A of our domestic statute to discrimination on the grounds of race or ethnic or national origins and the reversal of the burden of proof contained in the section can only operate in those cases. The Employment Appeal Tribunal and my Lord have concluded that that necessarily excludes the concept of victimisation from the operation of the section.

At first sight this is counter intuitive. Section 54A refers to discrimination and section 2 of the RRA refers to victimisation as a form of discrimination. Indeed the section is entitled:-

“Discrimination by way of victimisation.”

One would therefore expect that the reverse burden of proof enacted in section 54A would apply to discrimination as defined by section 1 and discrimination by way of victimisation as defined by section 2.

The problem is, however, that section 54A does not apply just to a complaint that a respondent has committed an act of discrimination but to a complaint that he

“has committed an act of discrimination, on grounds of race, ethnic or national origins,”

This wording echoes section 1 of the RRA which provides that a person discriminates against another

“if on racial grounds he treats that other less favourably than he treats or would treat other persons”

It does not echo section 2 of the RRA where discrimination is said to occur if a discriminator treats a person victimised less favourably than he treats or would treat other persons

“by reason that the person victimised has

[(a) brought proceedings;

(b)

given evidence in connection with proceedings;

(c)

done anything else by reference to the Act in connection with the discriminator;

(d)

alleged that the discriminator has committed an Act which] would amount to a contravention of this Act.”

Thus the use of the word “grounds” in section 54A is apt to include section 1 discrimination but is not particularly apt to include victimisation. It may be said that it is little more than a verbal distinction to say of the section 1 discriminator that he discriminates on racial “grounds” and to say of the section 2 discriminator that he discriminates “by reason that” the victimised person has engaged in certain conduct. But then one comes to consider section 3(3) which provides:-

“In this Act

(a)

references to discrimination refer to any discrimination falling within section 1 or 2; [this is, of course, the sub-sub-section on which Ms Oyarce relies to say that the reverse burden of proof provision applies to victimisation as much as to section 1 discrimination] and

(b)

references to racial discrimination refer to any discrimination falling within section 1.”

If the draftsman of section 54A had just used the words “has committed an act of discrimination”, Ms Oyarce would of course be correct; but he has, for good reason, used the words

“has committed an act of discrimination on grounds of race, ethnic or national origins,”

which on a fair reading is not a reference to discrimination merely but to racial discrimination. It seems to me, therefore, that it is section 3(3)(b) rather than section 3(3)(a) which is applicable and that section 54A can therefore only refer to discrimination falling within section 1. This construction is much reinforced by what I have called the “verbal” point that section 1 refers to “grounds” whereas section 2 on victimisation does not refer to grounds but uses the words “by reason that”.

This argument is one which seems to have persuaded the Employment Appeal Tribunal (Wilkie J. presiding) and, after some initial hesitation, I have come to the conclusion that they were right.

It does mean that (counter-intuitively) the reverse burden of proof provision does not apply to a case of victimisation in the context of racial discrimination although it may well apply to victimisation cases in other discriminatory contexts. That is, no doubt, because in those other context, the draftsman has not found it necessary to confine the concept of the relevant discrimination to discrimination on any specific grounds. In the context of racial discrimination, however, he has found it necessary to confine the grounds of discrimination to which the reverse burden of proof applies because the Directive has itself confined its concept of racial discrimination to certain specific grounds which are more limited than the grounds provided for by our domestic Act.

Although this provides a somewhat inelegant result, the Employment Appeal Tribunal have pointed out that there is no overall reduction in the existing protection available to persons discriminated against. It is just that there is now an enhanced level of protection for sufferers from some forms of discrimination. The approach of the common law has been to empower tribunals to draw inferences against alleged discriminators once it is shown that acts have been committed which are potentially discriminating, see King v Great Britain -China Centre [1992] ICR 516. This achieves a result which is not very different from the provisions of section 54A. The practical result of a conclusion that section 54A does not apply to victimisation cases is not likely to afford much alarm to claimants or much succour to respondents.

On all issues of Community law I entirely agree with everything my Lord has said. I too would dismiss this appeal.

I also agree