Nagarajan v London Regional Transport

Direct discrimination and statutory victimisation turn on the reason for less favourable treatment. Conscious motivation is unnecessary. Liability arises where racial grounds, or knowledge of a protected act, had a significant influence on the outcome, even though the discriminator did not recognise that influence.

Under the Race Relations Act 1976, recruitment arrangements include the manner in which interviews and assessments are conducted. By virtue of the statutory deeming provision for employees’ acts, an employer may be liable where one employee created neutral arrangements but another operated them discriminatorily. A tribunal may infer discrimination from primary facts, including an implausible assessment and evidence connecting an adverse judgment to earlier protected complaints.

Mr Nagarajan applied to London Regional Transport for a Travel Information Assistant post. The interviewers knew that he had previously brought race discrimination proceedings against the organisation. The Industrial Tribunal found that this knowledge had consciously or subconsciously influenced their assessment. It upheld his victimisation complaint and later awarded £2,500 for injury to feelings.

The Employment Appeal Tribunal reversed that decision. It held that victimisation required a motive consciously connected with the race relations legislation and that the interview assessments did not fall within the relevant recruitment arrangements. The Court of Appeal dismissed Mr Nagarajan’s further appeal in Nagarajan v London Regional Transport [1998] I.R.L.R. 73. It also considered the Tribunal’s factual inference unsustainable.

The House considered whether conscious motivation was required under section 2(1) of the Race Relations Act 1976, whether interviewing and assessing candidates fell within section 4(1)(a), and whether the Tribunal’s finding was perverse or irrational.

1. Appeal allowed by a majority of four to one. Lord Nicholls of Birkenhead and Lord Steyn delivered the principal speeches. Lord Hutton and Lord Hobhouse of Woodborough agreed with both. The Industrial Tribunal’s decision against London Regional Transport was restored. The appeal against Mr Swiggs was dismissed by consent.

2. Per Lord Nicholls and Lord Steyn, the question under section 2(1) of the Race Relations Act 1976 was why the claimant received less favourable treatment. The claimant did not have to prove a consciously retaliatory motive. It was enough that the discriminator knew of a protected act and that this knowledge had a significant influence on the outcome. A tribunal could find that influence even where the discriminator did not recognise it.

3. The majority distinguished the ground or cause of treatment from the motive for acting upon that ground. Under section 1(1)(a), the tribunal must determine whether race caused the less favourable treatment, ordinarily by inference from primary facts. Once racial grounds are established, a benign or other motive does not prevent liability. The principles in Reg v Birmingham City Council, Ex parte Equal Opportunities Commission [1989] AC 1155 and James v Eastleigh Borough Council [1990] 2 AC 751 were reaffirmed and applied by analogy to victimisation.

4. The contrary dictum in Aziz v Trinity Street Taxis Ltd [1989] QB 463, suggesting that victimisation required a consciously connected motive, was disapproved. The language, context and protective purpose of section 2(1) supported the same causal approach as direct discrimination.

5. Per Lord Nicholls and Lord Steyn, section 4(1)(a) covers both the creation and the operation of recruitment arrangements. Section 32(1) treats an employee’s acts in the course of employment as acts of the employer. Consequently, an employer may discriminate in its arrangements where one employee establishes them neutrally but another conducts the interview or assessment discriminatorily. The interpretation in Brennan v J H Dewhurst Ltd [1984] I.C.R. 52 was applied.

6. Per Lord Steyn, with the other members of the majority agreeing, the Tribunal’s conclusion was neither perverse nor irrational. It could regard the articulacy score as wholly unrealistic and infer that the assessment of Mr Nagarajan as anti-management derived from knowledge of his earlier complaints. Drawing such inferences from the oral and primary evidence was a central fact-finding function of the Tribunal.

7. Lord Browne-Wilkinson dissented. He considered that a racial ground or protected act had to be consciously present in the discriminator’s mind. In his view, a subconscious factor could not constitute the discriminator’s reason for acting, and the Tribunal’s alternative finding of conscious or subconscious influence was insufficient.

1. House of Lords: Allowed Mr Nagarajan’s appeal against London Regional Transport by a four-to-one majority and restored the Industrial Tribunal’s decision. The appeal against Mr Swiggs was dismissed by consent.
2. Court of Appeal: Dismissed Mr Nagarajan’s appeal in Nagarajan v London Regional Transport [1998] I.R.L.R. 73. It upheld the requirement of conscious motivation, adopted a narrow construction of the recruitment arrangements provision, and considered the Tribunal’s inference unsustainable.
3. Employment Appeal Tribunal: Allowed London Regional Transport’s appeal and dismissed Mr Nagarajan’s cross-appeal on 8 June 1996. It held that victimisation required conscious motivation and that the interview assessments were outside section 4(1)(a) of the Race Relations Act 1976.
4. Industrial Tribunal: On 23 June 1994, unanimously upheld the victimisation complaint against London Regional Transport and dismissed the claim against Mr Swiggs. It subsequently awarded £2,500 for injury to feelings.