| Direct race discrimination is when an organisation | | | | no Equal Opportunity training for any of the |
| (or an employee of the organisation) treats a | | | | managers it assigned to hear and decide on Mr |
| person less favourably than someone else on | | | | Chagger's issues and complaints of race |
| racial grounds. Proving direct race discrimination is | | | | discrimination; Abbey National failed to answer Mr |
| not trivial. The burden of proof is on the | | | | Chagger's Race Relations Act Questionnaire; and |
| employee alleging the discrimination. The UK | | | | Abbey National was in breach of the statutory |
| landmark case of Chagger v Abbey National plc & | | | | Code of Practice on Racial Policy in Employment |
| Hopkins of 2006, where the Employment | | | | by failing to carry out monitoring, failing to take |
| Tribunal's finding of race discrimination led (after | | | | allegations of race discrimination seriously, and |
| Abbey National's refusal to comply with the | | | | failing to investigate them promptly. |
| Tribunal's order to re-instate Mr Chagger to | | | | If the alleger can establish a case based on facts |
| remedy its wrongdoing) to the record £2.8 | | | | suggesting there has been race discrimination, |
| million compensation order, serves to illustrate the | | | | then the burden of proof could shift to the |
| burden of proof in race discrimination. Abbey | | | | employer to prove otherwise. The employer will |
| National (being re-branded as Santander from | | | | then be burdened with the task of having to |
| 2010 and being part of the Banco Santander | | | | prove that it would have treated in a similar way |
| Group) employed Balbinder Chagger as one of its | | | | someone else who was not of the same racial |
| two Trading Risk Controllers, both managed by | | | | group as the alleger. If the employer does not |
| Nigel Hopkins. Mr Chagger was of Indian origin. He | | | | have any non-discriminatory explanation, or if the |
| earned approximately £100,000 per year. Abbey | | | | Tribunal finds the explanation inadequate or |
| National dismissed him in 2006, apparently for | | | | unsatisfactory, then the Tribunal must infer |
| reasons of redundancy. The redundancy pool of | | | | discrimination on racial grounds. |
| selection was he and the other Trading Risk | | | | The Tribunal was satisfied that, on the balance of |
| Controller, a white female. | | | | probabilities, Abbey National and Mr Hopkins had |
| The employee alleging the race discrimination | | | | discriminated against Mr Chagger on the grounds |
| must prove that his employer, on the balance of | | | | of race in respect of his dismissal. The Tribunal, |
| probabilities, discriminated against him on racial | | | | therefore, passed the burden of proof to Abbey |
| grounds. On the balance of probabilities means | | | | National and Mr Hopkins to show that there was |
| that the alleger needs to prove that it is more | | | | no discrimination whatsoever in respect of Mr |
| likely than not that the employer treated him | | | | Chagger's selection for redundancy and dismissal. |
| differently on the grounds of his race; the alleger | | | | The employer will almost always deny that the |
| does not need to prove with absolute certainty | | | | alleged discrimination had anything to do with race. |
| that the employer discriminated. | | | | The explanation that Abbey National and Mr |
| The alleger must prove that he was treated less | | | | Hopkins put forward was that the selection for |
| favourably than someone else (preferably a real | | | | redundancy and dismissal was carried out fairly. |
| comparator, but it could also be a hypothetical | | | | The Tribunal rejected this explanation for the |
| comparator) on the grounds of race. This can | | | | factors listed above. Abbey National then put |
| often be very difficult because the employer will | | | | forward an alternative explanation, that Mr |
| almost always deny that the alleged discrimination | | | | Hopkins and Mr Chagger could not have had any |
| had anything to do with race. | | | | reasonable working relationship (that is, the |
| Mr Chagger established a case based on facts | | | | difference in treatment suffered by Mr Chagger |
| suggesting there had been race discrimination. The | | | | was for a reason other than racial grounds). The |
| Employment Tribunal found that Mr Chagger had | | | | Tribunal could not rely on this explanation; it was |
| been selected for redundancy and had been | | | | an explanation that Mr Hopkins himself did not |
| dismissed and that a real comparator (the other | | | | accept. |
| Trading Risk Controller) had not. The Tribunal | | | | The Tribunal noted that Abbey National and Mr |
| noted that there was a difference in race, colour | | | | Hopkins had failed to provide a non-discriminatory |
| and ethnic origin between Mr Chagger and the | | | | explanation for the difference in treatment meted |
| comparator. The Tribunal noted the following: Mr | | | | out to Mr Chagger; Abbey National and Mr |
| Chagger's selection for redundancy was grossly | | | | Hopkins had failed to discharge the burden of |
| unfair; Mr Hopkins had predetermined that Mr | | | | proof upon them of proving on the balance of |
| Chagger would be the employee that would be | | | | probabilities that the reason for Mr Chagger's |
| selected for redundancy; Mr Hopkins had used the | | | | selection and dismissal was in no respect on racial |
| redundancy selection process as a means to | | | | grounds. |
| remove Mr Chagger from his position; Mr Hopkins | | | | Finally, the Tribunal concluded that Abbey National |
| had reduced Mr Chagger's redundancy scores on | | | | and Mr Hopkins had discriminated on the grounds |
| matters which no reasonable employer would | | | | of race in respect of Mr Chagger's dismissal. |
| have taken into account; Abbey National provided | | | | |