Chief Constable of West Yorkshire Police v Khan

The House of Lords considered whether refusal by an employer to provide a reference while discrimination proceedings were pending amounted to victimisation under section 2 of the Race Relations Act 1976 and discrimination under section 4. The court held that the comparator for victimisation is a person in the same circumstances except that he or she has not done the protected act. The phrase "by reason that" in section 2 requires inquiry into the discriminator's reason or motive, not a simple but-for causation test.

Applying that test, the Lords concluded that the refusal to give a reference was attributable to the existence of pending proceedings and the employer's need to protect its position, not because the employee had brought proceedings under the Act. Accordingly the industrial tribunal had been in error to find victimisation and the appeal was allowed.

Background and facts.

• Sergeant Raham Noor Khan, a long-serving West Yorkshire police officer, applied for promotion to inspector. His application was not supported by supervising officers, a decision he challenged as racial discrimination under the Race Relations Act 1976.
• While those proceedings were pending, Mr Khan applied to another force (Norfolk) which requested a reference from West Yorkshire. West Yorkshire declined to provide the reference, citing concern about prejudicing its case in the ongoing tribunal proceedings. Mr Khan added a claim of victimisation based on that refusal.

Procedural history.

• The industrial tribunal rejected the direct discrimination claim but found victimisation and awarded compensation for injury to feelings. The Employment Appeal Tribunal dismissed the employer's appeal; the Court of Appeal dismissed a further appeal. The House of Lords granted further appeal.

Issues before the House of Lords.

1. Who are the appropriate comparators when assessing "less favourable" treatment under section 2(1) of the Race Relations Act 1976?
2. What constitutes "less favourable" treatment for victimisation purposes?
3. What is the meaning of "by reason that" in section 2(1) — does it require ordinary legal causation or a consideration of the discriminator's motive?

Court's reasoning and conclusions.

• The court held the proper comparator is a person in the same circumstances save for the protected act; the relevant circumstances do not include the fact that the claimant has done the protected act.
• "Less favourable" requires a meaningful adverse difference in treatment; it is sufficient that the complainant reasonably regarded the treatment as less favourable even if no economic loss followed.
• "By reason that" focuses on the discriminator's real reason or motive. It does not simply invoke a but-for causation test. An employer acting honestly and reasonably to preserve its position in pending litigation (for example by withholding a reference) is not necessarily acting "by reason that" the employee brought proceedings under the Act.
• Applying those principles, the Lords concluded the refusal of the reference was because proceedings were pending (a legitimate reason to defer) and not because the employee had brought proceedings under the Act; the industrial tribunal had failed to examine that distinction and was therefore in error.

Relief sought. Mr Khan had sought a finding of victimisation and an award of compensation for injury to feelings; the court set aside the tribunal's award on the victimisation claim.

Appeal allowed. The House of Lords held that the comparator for victimisation is a person in the same circumstances except for the protected act and that "by reason that" in section 2 requires the court to identify the discriminator's real reason or motive. The refusal to provide a reference was attributable to the existence of pending proceedings (to protect the employer's position), not because Khan had brought proceedings under the Act; the industrial tribunal erred in finding victimisation.

Industrial tribunal: decision announced 22 April 1997 (direct discrimination dismissed; victimisation succeeded). Remedy hearing 30 July 1997 (award £1,500 for injury to feelings). Employment Appeal Tribunal: appeal by West Yorkshire dismissed 28 July 1998. Court of Appeal: appeal dismissed on 24 February 2000 ([2000] ICR 1169). House of Lords: appeal allowed [2001] UKHL 48.