Chief Constable of West Yorkshire Police v. Khan

Victimisation under section 2(1) of the Race Relations Act 1976 requires less favourable treatment for which the protected act was a conscious or unconscious reason. A mere “but for” connection does not suffice. An employer who acts honestly and reasonably to protect its position in pending discrimination proceedings does not victimise the employee where the reason for its temporary action is the existence of the litigation, rather than the employee’s commencement of it. The comparison is with a person in the same relevant circumstances who has not done the protected act. Less favourable treatment may exist despite the absence of financial loss or an ultimately disadvantageous consequence.

A police sergeant brought racial discrimination proceedings after an unsuccessful promotion application. While those proceedings were pending, another police force requested a reference. On legal advice, his chief constable declined to provide the reference because its contents concerned the matters under adjudication.

The industrial tribunal dismissed the direct discrimination claim but upheld a victimisation claim and awarded £1,500 for injury to feelings. The Employment Appeal Tribunal dismissed the chief constable’s appeal, as did the Court of Appeal in [2000] ICR 1169. The central issue before the House was whether the reference had been withheld “by reason that” the sergeant had brought proceedings under the Race Relations Act 1976, or because the pending litigation required the chief constable temporarily to protect his position.

1. Appeal allowed unanimously. Lord Nicholls delivered the leading speech. Lord Mackay, Lord Hoffmann, Lord Hutton and Lord Scott also concluded that the statutory victimisation claim failed. The award of damages was set aside.

2. Per Lord Nicholls, Lord Mackay, Lord Hoffmann and Lord Scott, the section 2(1) inquiry has three elements: relevant statutory circumstances, less favourable treatment by comparison with others in those circumstances, and treatment by reason of a protected act. Lord Hutton agreed with Lord Nicholls and Lord Hoffmann.

3. For the comparison, the protected act must be omitted while the other relevant circumstances remain. The claimant was therefore compared with another employee seeking a reference who had not brought discrimination proceedings. The alternative comparison with an employee who had brought different proceedings would undermine the statutory protection. The House adopted the approach in Aziz v Trinity Street Taxis Ltd [1989] QB 463.

4. The sergeant had been treated less favourably because an ordinary request for a reference would have been met. Per Lord Hoffmann, with Lord Hutton and Lord Scott agreeing, less favourable treatment is distinct from its ultimate consequences. The fact that withholding the reference caused no economic loss, and may have improved the application’s prospects, did not prevent the treatment being less favourable or detrimental.

5. Per Lord Nicholls, the words “by reason that” require the tribunal to identify why the alleged discriminator acted. This is a subjective question of fact concerning the conscious or unconscious reason for the treatment, rather than an ordinary legal causation inquiry. Lord Hoffmann and Lord Scott likewise distinguished a protected act as a “but for” condition from the real reason for the treatment.

6. The distinction drawn in Cornelius v University College of Swansea [1987] IRLR 141 was followed. An employer may act honestly and reasonably to preserve its position in pending discrimination litigation without victimising the employee. Here the unchallenged evidence established that the reference was withheld because the proceedings remained pending and its contents might compromise the defence. The same advice would have been given whatever the nature of the allied litigation, and the reference could have been supplied after its conclusion.

7. Lord Mackay additionally considered that an employment reference could be a “benefit” under section 4(2)(b) of the Race Relations Act 1976. Lord Hoffmann stated that a useful practical inquiry is whether the employer would still have refused the request after the litigation had ended.

1. House of Lords: The appeal was allowed unanimously. The finding of victimisation and the award of damages were set aside.
2. Court of Appeal: The chief constable’s further appeal was dismissed on 24 February 2000: Chief Constable of West Yorkshire Police v Khan [2000] ICR 1169.
3. Employment Appeal Tribunal: The chief constable’s appeal was dismissed on 28 July 1998.
4. Industrial tribunal: The direct racial discrimination claim was dismissed, but the victimisation claim succeeded. The tribunal awarded £1,500 for injury to feelings and made no award for financial loss.