Chief Constable of the West Yorkshire Police v Khan

Victimisation under the Race Relations Act 1976 requires an objective comparison. The comparator is identified by the circumstances in which the treatment was requested or given, not by the fact that the claimant performed the protected act. A request for a reference is therefore compared with references normally given to other employees. The causation question asks whether the claimant would have received the same treatment but for the protected act. Conscious motive or awareness of prejudice is unnecessary. Compensation for injury to feelings may be awarded despite the absence of economic loss.

The respondent, a police sergeant, had brought proceedings under the Race Relations Act 1976. When another police force sought a reference for a promotion application, the appellant disclosed the proceedings and declined to provide further observations or records. The Employment Tribunal dismissed the direct discrimination claim but upheld victimisation and awarded £1,500 for injury to feelings. The Employment Appeal Tribunal dismissed the appeal on 28 July 1998. The issues before the Court of Appeal were the appropriate comparator, causation, the evidential basis for injury to feelings, and the amount of compensation.

1. The appeal was dismissed unanimously. Lord Woolf MR gave the judgment. Lady Justice Hale and Lord Mustill agreed. The order was dismissal with costs, and leave to appeal to the House of Lords was refused.
2. Statutory context and causation. Section 2 had to be read with the Act as a whole. The distinction in s.3(3) between discrimination under ss.1 and 2 and racial discrimination under s.1 supported the conclusion that victimisation concerns protected conduct rather than racial grounds. The causation requirement was objective. Applying the approach in Nagarajan v London Regional Transport [1999] ICR 877, and the comparable sex-discrimination authorities R v The Birmingham City Council, ex parte Equal Opportunities Commission [1989] AC 1155 and James v The Eastleigh Borough Council [1990] ICR 554, the question was whether the less favourable treatment would have occurred but for the protected act. Conscious motivation was unnecessary.
3. Comparator. The comparison required by s.2 concerned the circumstances in which the treatment was requested. The relevant circumstance was the request for a reference. The comparator was therefore an employee for whom a reference had been requested and would ordinarily be provided, not simply another person who had brought proceedings. The approach in Aziz v Trinity Street Taxis Limited [1988] ICR 534 was consistent with this construction. Cornelius v UC Swansea [1987] IRLR 141 did not establish a different comparator; the passage relied upon addressed causation as well as less favourable treatment and did not determine the comparator question.
4. Application and damages. The tribunals were entitled to find that a reference would have been provided if the respondent had not brought proceedings under the Act. He was consequently treated less favourably by reason of the protected act. The absence of economic loss did not prevent an award for injury to feelings. Evidence given at the liability hearing could be taken into account, and distress caused by the apparent refusal of a reference was sufficient. Although the amount appeared high, no error of law or basis for setting aside the award had been shown.

1. Court of Appeal: On 24 February 2000, the court dismissed the appeal from the Employment Appeal Tribunal. The decision is reported at [2000] EWCA Civ 53.
2. Employment Appeal Tribunal: On 28 July 1998, the EAT dismissed the appellant's appeal from the Employment Tribunal.
3. Employment Tribunal: Decisions dated 22 April and 30 July 1997 dismissed the direct discrimination claim, upheld victimisation under the Race Relations Act 1976, and awarded £1,500 for injury to feelings.