case ref: 8.5/ June 2005
Summary of case
Our member Mr Y had lodged an ET claim of race discrimination and victimisation which he believed resulted from the fact that he had given evidence at a previous ET case which was concerned with allegations of race discrimination.
The solicitor was asked, taking into account internal grievance documents and tribunal submissions, if Mr Y's case had reasonable chance of success.
Key advice provided by Thompsons
The key advice provided by Thompsons was a general overview of how the law in respect of race discrimination applies.
The solicitor said:
"In order to prove race discrimination your member has to show that he has been treated less favourably on racial grounds than a person of another race has or would be treated. There is no need for him to prove that the treatment he complained of was an intentional desire to discriminate. Motive is not relevant. However it should be borne in mind that mere different treatment is not enough.
"Direct evidence of race discrimination is rarely available and it is up to the complainant to invite the Tribunal to infer discrimination from the facts of the case. Usually the sort of background evidence from which a Tribunal may infer discrimination may be, racist stereotyping vocabulary, or even showing that staff from one ethnic group were more often than white staff treated in a certain way.
"Where the complainant proves a prima facie case of direct discrimination, the burden shifts to the Respondent to prove it was not racially discriminatory.
"This means that where the Claimant proves from the facts from which the Tribunal could conclude in the absence of an adequate explanation that the Respondent has committed an act of discrimination, the Tribunal should uphold the complaint unless the Respondent proves he did not commit the act. Unreasonable behaviour is not enough to show the acts are acts of discrimination.
"In the recent case of Bahl -v- the Law Society  IRLR 799 the Court of Appeal found that unreasonable treatment cannot of itself lead to an inference of discrimination.
"Only a small percentage of claims for race discrimination are successful in Tribunal. In respect of your member's claim for victimisation, he would have to show that he has been treated less favourably as a result of doing a protected act. The protected act in this case is clear, where he gave evidence on behalf of his colleague."
Legal Department comment
In this particular case, the solicitor has given preliminary advice that on the basis of information to hand that there are reasonable prospects of persuing a claim for race discrimination and victimisation.
The Legal Department is liaising with the Bargaining Unit to ensure that the case is properly managed. There are a number of cases in the past and at present where legal representation has been provided for similar claims.
Clearly the advice given by the solicitor as highlighted in this bulletin is set out in very general terms, but hopefully it gives officials some insight into how the law applies in these matters.
Officials and representatives who are dealing with potential race discrimination claims are advised to work closely with the relevant Bargaining Unit/Regional Office and the Legal Department from the earliest stage in the development of the case.