Colour Discrimination Employment Law

Race discrimination law in the UK is covered by the Race Relations Act 1976. The law explicitly forbids discrimination on the grounds of race, ethnic and national origins; however, it does not mention the ground of colour. Although it is difficult to imagine how discrimination on the ground of colour could also not be discrimination on the grounds of race, ethnic or national origins, does an employee alleging race discrimination on the ground of colour have a case in UK law? The UK landmark case of Chagger v Abbey National plc & Hopkins of 2006, where the Employment Tribunal's finding of race discrimination led to the record compensation award of £2.8 million, provides some guidance on the issue.

Balbinder Chagger, of Indian origin, was employed by Abbey National (part of the Banco Santander Group) on a remuneration of around £100,000 per annum and reported into Nigel Hopkins. In 2006, he was dismissed ostensibly for reason of redundancy. The Employment Tribunal found that Mr Hopkins had used the redundancy process as a means to remove Mr Chagger from his position, and that both Mr Hopkins and Abbey National had discriminated against Mr Chagger on the grounds of race in respect of his dismissal.

Abbey National and Mr Hopkins proceeded to appeal to the Employment Appeal Tribunal (EAT) against the verdict of race discrimination saying, amongst other things, that Mr Chagger had alleged discrimination on the ground of colour because he had referred to that ground in his evidence before the Employment Tribunal, and discrimination on the ground of colour is not covered by UK Law.

The EAT considered Abbey National's challenge. It concluded that it was clear from the way the case had been pleaded and advanced that Mr Chagger had formulated his case on the grounds of racial and/or ethnic origins, and had never abandoned those grounds even though he had referred to discrimination on the ground of colour in his evidence before the Employment Tribunal. This was sufficient for the EAT to conclude that Mr Chagger had a case in law. The other challenges Abbey National and Mr Hopkins had made against the original Employment Tribunal's reasoning of the race discrimination verdict also similarly failed. Abbey National's appeal was rejected and the original Tribunal's finding of race discrimination was upheld.

Having rejected Abbey National's appeal, the EAT went on to address the issue of discrimination on the ground of colour. The EAT concluded that it was inconceivable that the European Council's Directive on Equal Treatment Between Persons Irrespective of Racial or Ethnic Origin of 2000 was not intended to apply to discrimination on the ground of colour; there had been an omission in the Race Relations Act 1976. It concluded that while it was possible to discriminate on the grounds of race or ethnic origins without discrimination on the ground of colour, the reverse was not so; discrimination on the ground of colour which could not also properly be characterised as discrimination on the ground of race and/or ethnic origin was inconceivable. The EAT concluded that employees who allege 'colour discrimination' will inevitably in fact be complaining, whether or not they appreciate it, of discrimination on the grounds of race and/or ethnic origins.

The EAT said that Mr Chagger had created a rod for his own back by referring to discrimination on the ground of colour in his evidence before the Employment Tribunal when the substance of his case was discrimination on racial and/or ethnic origins. The EAT also said that employers should not be allowed to play pleading games with technical language in order to prevent an employee the full substantive grounds of his case.

Employment Tribunals do appear to be interpreting race to include colour. However, to reduce the risks of confusion and difficulties, an employee claiming discrimination on the ground of colour should, if possible, formulate and advance his case on the grounds of race, ethnic or national origins.