Proving Race Discrimination in Employment

Direct race discrimination is when an organisation (or an
employee of the organisation) treats a person less
favourably than someone else on racial grounds. Proving
direct race discrimination is not trivial. The burden of
proof is on the employee alleging the discrimination. The
UK landmark case of Chagger v Abbey National plc & Hopkins
of 2006, where the Employment Tribunal's finding of race
discrimination led (after Abbey National's refusal to
comply with the Tribunal's order to re-instate Mr Chagger
to remedy its wrongdoing) to the record £2.8 million
compensation order, serves to illustrate the burden of
proof in race discrimination. Abbey National (being
re-branded as Santander from 2010 and being part of the
Banco Santander Group) employed Balbinder Chagger as one of
its two Trading Risk Controllers, both managed by Nigel
Hopkins. Mr Chagger was of Indian origin. He earned
approximately £100,000 per year. Abbey National
dismissed him in 2006, apparently for reasons of
redundancy. The redundancy pool of selection was he and
the other Trading Risk Controller, a white female.

The employee alleging the race discrimination must prove
that his employer, on the balance of probabilities,
discriminated against him on racial grounds. On the balance
of probabilities means that the alleger needs to prove that
it is more likely than not that the employer treated him
differently on the grounds of his race; the alleger does
not need to prove with absolute certainty that the employer
discriminated.

The alleger must prove that he was treated less favourably
than someone else (preferably a real comparator, but it
could also be a hypothetical comparator) on the grounds of
race. This can often be very difficult because the employer
will almost always deny that the alleged discrimination had
anything to do with race.

Mr Chagger established a case based on facts suggesting
there had been race discrimination. The Employment
Tribunal found that Mr Chagger had been selected for
redundancy and had been dismissed and that a real
comparator (the other Trading Risk Controller) had not.
The Tribunal noted that there was a difference in race,
colour and ethnic origin between Mr Chagger and the
comparator. The Tribunal noted the following: Mr Chagger's
selection for redundancy was grossly unfair; Mr Hopkins had
predetermined that Mr Chagger would be the employee that
would be selected for redundancy; Mr Hopkins had used the
redundancy selection process as a means to remove Mr
Chagger from his position; Mr Hopkins had reduced Mr
Chagger's redundancy scores on matters which no reasonable
employer would have taken into account; Abbey National
provided no Equal Opportunity training for any of the
managers it assigned to hear and decide on Mr Chagger's
issues and complaints of race discrimination; Abbey
National failed to answer Mr Chagger's Race Relations Act
Questionnaire; and Abbey National was in breach of the
statutory Code of Practice on Racial Policy in Employment
by failing to carry out monitoring, failing to take
allegations of race discrimination seriously, and failing
to investigate them promptly.

If the alleger can establish a case based on facts
suggesting there has been race discrimination, then the
burden of proof could shift to the employer to prove
otherwise. The employer will then be burdened with the
task of having to prove that it would have treated in a
similar way someone else who was not of the same racial
group as the alleger. If the employer does not have any
non-discriminatory explanation, or if the Tribunal finds
the explanation inadequate or unsatisfactory, then the
Tribunal must infer discrimination on racial grounds.

The Tribunal was satisfied that, on the balance of
probabilities, Abbey National and Mr Hopkins had
discriminated against Mr Chagger on the grounds of race in
respect of his dismissal. The Tribunal, therefore, passed
the burden of proof to Abbey National and Mr Hopkins to
show that there was no discrimination whatsoever in respect
of Mr Chagger's selection for redundancy and dismissal.

The employer will almost always deny that the alleged
discrimination had anything to do with race. The
explanation that Abbey National and Mr Hopkins put forward
was that the selection for redundancy and dismissal was
carried out fairly. The Tribunal rejected this explanation
for the factors listed above. Abbey National then put
forward an alternative explanation, that Mr Hopkins and Mr
Chagger could not have had any reasonable working
relationship (that is, the difference in treatment suffered
by Mr Chagger was for a reason other than racial grounds).
The Tribunal could not rely on this explanation; it was an
explanation that Mr Hopkins himself did not accept.

The Tribunal noted that Abbey National and Mr Hopkins had
failed to provide a non-discriminatory explanation for the
difference in treatment meted out to Mr Chagger; Abbey
National and Mr Hopkins had failed to discharge the burden
of proof upon them of proving on the balance of
probabilities that the reason for Mr Chagger's selection
and dismissal was in no respect on racial grounds.

Finally, the Tribunal concluded that Abbey National and Mr
Hopkins had discriminated on the grounds of race in respect
of Mr Chagger's dismissal.