An odd situation arises from the finding in Oyarce v Cheshire County Council [2008] EWCA Civ 434. In most discrimination cases, all the Claimant need do to prove facts that would, in the absence of an adequate explanation, support his claim. The burden of proof then moves to the Respondent to disprove those facts or successfully contend that they do not constitute discrimination. This is often referred to as the Claimant creating an ‘inference’, but that word does not appear in the legislation. The Race Relations Act is older than I am, but the reversal of burden of proof was added in 2000 to comply with an EU Directive that required it.
In this case, Oyarce won at first instance because she crossed the first hurdle and created the inference, and the Respondent were unable to meet their evidential hurdle of disproving her case. Her claim however was for victimisation which, perhaps inadvertently, is not subject to the reversal of the burden of proof. This is upheld, which means that a tandem system of proof will run in cases where (as there often is) both claims of victimisation and ‘regular’ discrimination.
This is a temporary situation which applies until the discrimination statutes are consolidated into a Single Equality Act.
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