Scott v London Borough of Hillingdon

Knowledge or suspicion that the complainant has done a protected act is a pre-condition to victimisation under section 2(1) of the Race Relations Act 1976. Knowledge may be inferred, but only from primary facts that legitimately support the inference. The fact-finder cannot infer knowledge merely because the employer’s explanation is rejected or because no other reason for less favourable treatment has been established. The evidential approach applicable to proving why racial factors influenced treatment under section 1(1) is distinct from proving knowledge of a protected act. Where the inference of knowledge is not legitimately available on the facts found, the appellate tribunal may determine the complaint without remission.

Mr Scott, who had brought racial-discrimination proceedings against the London Borough of Ealing, applied for a post with the London Borough of Hillingdon. He was not appointed and was not reconsidered when the post was readvertised. An Employment Tribunal rejected his direct-discrimination claim but found that he had been victimised because Hillingdon had targeted him as a person who had brought proceedings against another local authority.

The Employment Appeal Tribunal allowed Hillingdon’s appeal, holding that the Employment Tribunal had not made a proper finding that the councillors who made the decision knew of the protected act and had drawn an impermissible inference. Mr Scott appealed to the Court of Appeal. The central issue was whether knowledge of the protected act could properly be inferred from the primary facts found.

1. Appeal dismissed. The Employment Appeal Tribunal was entitled to overturn the finding of victimisation.
2. Knowledge by the alleged discriminator of the protected act is a pre-condition to victimisation under section 2(1) of the Race Relations Act 1976. The necessary knowledge in this case had to be that of the three councillors who made the decisions, rather than merely that of officers who had not materially participated in the final decision.
3. Knowledge may be proved by inference, but the inference must arise from primary facts which legitimately support it. The Employment Tribunal had found general contact between the two boroughs’ housing departments, but no evidence that the relevant officers knew of Mr Scott’s proceedings or had communicated that information to the councillors. The fact that Mr Scott had changed jobs and accepted a lower salary did not point specifically to a race-discrimination complaint.
4. The reasoning applicable to a section 1(1) claim, where racial influence may be unconscious and proof may present special difficulties, does not govern the separate issue of whether the discriminator knew of a protected act. The Employment Tribunal had wrongly relied on the approach in King v Great Britain China Centre when deciding the knowledge issue. Rejecting the employer’s explanation and the claim of racial discrimination did not establish that the councillors knew of Mr Scott’s complaint. Other possible reasons remained, and any inference of knowledge would have been speculative.
5. Remission was inappropriate. This was not merely a case of inadequate reasons or application of an incorrect legal test requiring further findings. The fundamental defect was that the inference drawn was not legitimate on the primary facts already found. The victimisation complaint therefore failed on those facts. The appeal was dismissed with costs.

• Court of Appeal (Civil Division): Appeal dismissed, with costs.
• Employment Appeal Tribunal: Appeal by Hillingdon allowed against the Employment Tribunal’s finding of victimisation.
• Employment Tribunal: Direct-discrimination claim rejected; victimisation claim upheld.