| A City banker launched a race discrimination claim | | | | sufficient to mean that the burden of proof should |
| against Dresdner Kleinwort ("DrK"). He alleged that he | | | | pass over to the bank. With regards to this case, it |
| was treated less favourably whilst at work, and was | | | | has been speculated that there will be a great deal of |
| eventually made redundant because he was neither | | | | evidence in the case as to the culture of the bank |
| German nor a German speaker. | | | | generally. This would attempt to demonstrate that |
| The unfair dismissal and race discrimination claim could | | | | German nationals were treated more favourably than |
| be worth close to £10m in the event of its | | | | non-German nationals. If such circumstances can be |
| success. The employee in this case, Malcolm Perry, | | | | proven, then the claim is likely to succeed on the |
| was born in Australia. He was a former global head of | | | | ground of direct discrimination. It is also interesting to |
| fixed income and credit at DrK. During the hearing he | | | | note that the defence of justification is not available |
| told an employment tribunal that he became | | | | in direct race discrimination cases. |
| increasingly concerned about being excluded from | | | | A precedent relevant to this case involved the |
| key decision-making after the bank decided to merge | | | | London office of a Japanese company called Quick |
| its corporate and investment banking businesses in | | | | Corporation which provided online financial information |
| late 2005. Perry told the tribunal that: | | | | from international capital and financial markets. The |
| "... There was a general feeling that the hidden | | | | office was staffed by a mixture of locally recruited |
| objective was the creation of a niche German | | | | employees and employees from Japan. The local |
| investment bank servicing Dresdner's German | | | | employees were made redundant and the Japanese |
| corporate clients to the detriment of [its] international | | | | employees were retained. In those circumstances the |
| franchise... This left non-German and non-German | | | | claims for unfair dismissal and direct racial |
| speaking employees based outside Frankfurt and not | | | | discrimination succeeded. |
| aligned to the German business nervous about the | | | | This could mean that in this case the claim of less |
| outcome of [the new CEO's] restructuring plans". | | | | favourable treatment on the ground that he was not |
| In his witness statement, Perry said that the bank's | | | | a German speaker would be more difficult to prove |
| capital market committee had comprised 14 | | | | as a direct discrimination claim. It is also interesting to |
| executives at the time of [the new CEO's] arrival, | | | | note that tribunals have held that English-speaking |
| five of whom were German as well as nine | | | | Welsh people do not constitute their own ethnic |
| non-German or non-German speaking employees. | | | | group. However, another tribunal found that where |
| Perry was made redundant in June 2006. He was told | | | | an English job applicant was refused employment |
| that he was no longer required in his existing role and | | | | because of an inability to speak Welsh, the claim for |
| was not going to be given a key position in the | | | | indirect discrimination succeeded because fewer of |
| bank's new structure. | | | | the English ethnic group than those of the Welsh |
| Subsequently, he is suing DrK for both unfair dismissal | | | | ethnic group could comply with this requirement. |
| and race discrimination. The bank has admitted the | | | | In this case, the bank could argue that Malcolm Perry |
| unfair dismissal element but denies the discrimination | | | | has raised a discrimination claim only to try and |
| charge. In theory, since 2003 it has become easier | | | | recover his alleged losses. In an ordinary unfair |
| for claimants to prove discrimination on the grounds | | | | dismissal claim, the maximum compensatory award |
| of race or ethnic origin. This eventuality is due to the | | | | that a tribunal may make is £60,600 or |
| fact that the Race Relations Act 1976 was amended | | | | £58,400 if the dismissal occurred prior to the |
| to bring in regulations concerned with the reversal of | | | | 1st of February 2007. There is no limit to damages |
| the burden of proof. Commentators on this matter | | | | payable for claims concerning discrimination. |
| have said: | | | | If you require further information please contact us |
| "Nowadays, all a claimant has to do is to establish | | | | at or Visit |
| facts which could amount to discrimination. The | | | | © RT COOPERS, 2007. This Briefing Note does |
| burden then transfers to the employer to prove that | | | | not provide a comprehensive or complete statement |
| discrimination had no part to play in his actions". | | | | of the law relating to the issues discussed nor does it |
| This means that if Malcolm Perry can point to a | | | | constitute legal advice. It is intended only to highlight |
| comparable employee who was not made redundant | | | | general issues. Specialist legal advice should always be |
| but who happened to be German, that fact would be | | | | sought in relation to particular circumstances. |