Inferring Racial Bias

Anya v University of Oxford and Another (CA 2001 IRL 377)

If an employer behaves unreasonably towards a black employee, this may justify an inference of racial bias unless there is evidence that the employer behaved equally badly towards employees of all races. It is only open to a tribunal to conclude that the less favourable treatment of a black employee was not on the ground of race, but on the grounds of the applicant’s qualities, after proper consideration of the indicators on which the applicant relied as pointing to an opposite conclusion. Where there is a process of selection of a particular candidate, accompanied by a difference in race, it is not unduly onerous to expect an explanation for the selection decision. The tribunal must make findings of primary fact, either on the basis of direct or positive evidence or by inference from circumstantial evidence. The acceptance as truthful, of the evidence of the employer’s witness by the tribunal is not necessarily the end of the road: a witness may be credible, honest and mistaken, and never more so than when his evidence concerns things of which he himself may not be conscious.