Swiggs and Others v. Nagarajan

The House considered the proper construction of sections 1, 2(1) and 4(1)(a) of the Race Relations Act 1976 and the effect of section 32(1). The majority held that victimisation under section 2(1) does not require proof that the discriminator was consciously motivated: it is sufficient that the protected act was a principal or significant cause of the less favourable treatment, and unconscious or subconscious prejudice may be a legitimate basis for the inference. Section 4(1)(a) covers discriminatory operation of arrangements made by an employer and, read with section 32(1), makes the employer liable for discriminatory acts of employees operating those arrangements. The Industrial Tribunal's factual findings (that the interviewers were consciously or subconsciously influenced and that the assessments were unreliable) were not perverse and were restored.

This appeal concerned an allegation that London Regional Transport (L.R.T.) victimised Mr Nagarajan by failing to appoint him to a post after interview, contrary to sections 2(1) and 4(1)(a) of the Race Relations Act 1976. The Industrial Tribunal found for the claimant, awarding compensation for injury to feelings. On appeal the Employment Appeal Tribunal set that decision aside, and the Court of Appeal dismissed the claimant's appeal. The House of Lords allowed the appeal against L.R.T. and restored the Tribunal's decision.

Key background and procedural history:

• Nature of the claim: an employment discrimination claim seeking to establish victimisation (treatment less favourably) under section 2(1) and employer liability under section 4(1)(a) of the Race Relations Act 1976.
• Path of appeal: Industrial Tribunal (23 June 1994) found victimisation; E.A.T. allowed L.R.T.'s appeal (8 June 1996); Court of Appeal dismissed the claimant's appeal ([1998] I.R.L.R. 73); House of Lords allowed the appeal ([1999] UKHL 36; [2000] 1 AC 501).

Issues framed by the House:

• Whether section 2(1) requires conscious motivation by the discriminator or whether unconscious/subconscious influence can support liability.
• Whether interviewing and assessing candidates can constitute "the arrangements" made for determining who should be offered employment under section 4(1)(a).
• Whether the Industrial Tribunal's factual findings were perverse.

Court's reasoning, briefly:

• On section 2(1) the majority read the provision in the context of section 1 and prior House of Lords authority on direct discrimination (notably the Equal Opportunities Commission and James decisions). Liability does not require a conscious motive; it is enough that the protected act was a cause (a principal or important influence) of the less favourable treatment. Unrecognised or subconscious prejudice may therefore be taken into account if the tribunal can properly infer it from the facts.
• On section 4(1)(a) the majority followed the reasoning in Brennan: the provision is concerned with arrangements made by the employer and extends to the manner in which those arrangements are operated. Section 32(1) deems acts done in the course of employment to be acts of the employer, so the employer may be liable for discriminatory operation of arrangements even if those who set up the arrangements did not themselves act discriminatorily.
• The House concluded that the Tribunal's factual conclusions were open on the evidence, were not perverse and could support the inference of victimisation; accordingly the Tribunal's decision was restored.

The House included a narrow dissent by Lord Browne-Wilkinson who would have required conscious motivation for victimisation and would not have treated subconscious influence as sufficient.

Appeal allowed. The House held that (1) section 2(1) does not require proof of conscious motivation and may encompass subconscious influence where a tribunal properly infers that a protected act was a principal or significant cause of less favourable treatment; (2) section 4(1)(a) covers discriminatory operation of arrangements by employees and, read with section 32(1), renders the employer liable; and (3) the Industrial Tribunal's findings were not perverse and could justify the conclusion of victimisation.

Industrial Tribunal (decision for claimant 23 June 1994); Employment Appeal Tribunal allowed L.R.T.'s appeal (8 June 1996); Court of Appeal dismissed appellant's appeal (Nagarajan v. London Regional Transport [1998] I.R.L.R. 73); House of Lords allowed the appeal ([1999] UKHL 36; [2000] 1 AC 501).