The case of Webster v Brunel University [2004], was recently decided by the Employment Appeal Tribunal ('EAT'). The applicant, Webster, was employed by Brunel University as a helpdesk officer providing Information Technology support to the administrative staff of the respondent, Brunel University. The applicant brought proceedings in the employment tribunal against the respondent, claiming racial discrimination.

The tribunal dismissed her complaints. The applicant appealed in respect of the dismissal of one of her complaints, namely that whilst she was giving advice over the telephone she heard laughter in the background and the word 'Paki' was mentioned. She claimed racial discrimination and contended that Brunel University was vicariously liable.

Section 54A (1) of the Race Relations Act provides:

'This section applies where a complaint is presented under s 54 and the complaint is that the respondent (a) has committed an act of discrimination, on grounds of race ... which is unlawful (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 against the complainant the tribunal shall uphold the complaint unless the respondent proves that he did not commit that act'.

The applicant claimed the following:

Once the tribunal had found that the word 'Paki' was used, it had erred in leaving the onus on the applicant, to establish that there had been unfavourable treatment on grounds of race;

Further, the tribunal having left the onus on the applicant to establish unfavourable treatment and by looking at all the facts had simply decided that she had not proved her case;

That the tribunal should at least have considered transferring the onus of proof to the respondent;

That the tribunal ought to have concluded that there could have been discriminatory treatment by Brunel University because the alleged treatment could have been by an employee of the University. Once it concluded discriminatory treatment the tribunal should have transferred the onus from the applicant to the respondent.

The University contended that before the onus of proof could transfer to the respondent:

It was necessary for the applicant to establish that there was unfavourable treatment by the respondent; and Only then could inferences be drawn that that treatment was discriminatory on grounds of sex or race. The EAT allowed the appeal. The EAT ruled that the onus of proof transferred to the respondent once the applicant had established a prima facie case that there had been a discriminatory act by the respondent.

The EAT held that in future tribunals should apply the same prima facie test as applied to all questions relating to race and sex discrimination. In particular, where the treatment complained of by an applicant, amounted to sexual or racial discrimination and, was carried out by an employee of the respondent.

The Tribunals should in future direct themselves that once the facts had been found on the balance of probabilities, from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent had committed such an act, then the tribunal would uphold the complaint unless the respondent proved that it had not committed the act or, that the respondent was not vicariously liable for the employee that had committed the act.

The case was remitted to a fresh tribunal to consider:

Whether there was a prima facie case of unfavourable treatment by the respondent by someone for whom the respondent was vicariously liable; and If so, upon the burden of proof passing from the applicant to the respondent, whether the respondent could establish that there was no unfavourable treatment, significantly influenced by race, of the applicant, by one of its employees.

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RT COOPERS, 2005. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

Rosanna Cooper

Dr Rosanna Cooper BSc (Hons); CSci CChem MRSC; CChem FRSC; Dip Intellectual Property Law and Practice (Bristol), Solicitor; Attorney-at-Law (Grenada).

Dr Cooper is the managing partner of RT Coopers, Solicitors based in the City of London, England. She specialises in intellectual property (IP), biotechnology, pharmaceuticals, technology transfer and data protection. Dr Cooper was a partner in a West End firm in London and a senior lawyer with several City law firms before establishing RT Coopers. Dr Cooper studied for her Ph.D. in organic and medicinal chemistry at Kings College, University of London and pursued her postdoctoral research with SmithKline Beecham (now Glaxo SmithKline). She later worked as a senior pharmaceutical and paper chemist for Eli Lilly and Hercules respectively. Dr Cooper now advises international clients on IP in relation to a range of industries including, the biosciences, chemical sciences and pharmaceutical industries. Her role also extends to drafting, advising and negotiating commercial contracts, licences, joint ventures, collaborations, mergers and acquisitions especially the intellectual property and IT aspects of such corporate transactions. Dr Cooper advises start-ups, universities, spinout companies, small to medium sized enterprises and corporate clients.