Khan & Anor v The Home Office

Permission to appeal may be granted where the proposed grounds are properly arguable. At that stage, the court need not predict the ultimate outcome. Alleged errors in applying the burden of proof under the Race Relations Act 1976 and the Sex Discrimination Act 1975, including failure to identify or address an employer’s non-discriminatory explanation, were sufficient to warrant permission. The proposed appeal also raised arguable issues concerning pay, dismissal, special leave and compensation under the Civil Service Compensation Scheme.

Two Home Office employees, specialist interpreters of Asian origin, applied for permission to appeal from an Employment Appeal Tribunal decision which had partly allowed their appeal from an Employment Tribunal judgment. Their underlying claims included sex and race discrimination, victimisation, harassment, breach of contract, unfair dismissal and detriment for protected disclosures.

The applicants alleged legal errors concerning pay, their dismissals, special leave and payments under the Civil Service Compensation Scheme. They also challenged the application of the statutory burden-of-proof provisions and the two-stage approach described in Igen Ltd v Wong [2005] ICR 931, and the adequacy of the reasons under Meek v Birmingham City Council [1987] IRLR 250. The central issue was whether the proposed grounds were properly arguable and warranted permission to appeal.

1. The application for permission to appeal was granted. The court was not required to predict the outcome of any prospective appeal. It was satisfied that the points advanced were properly arguable.
2. The proposed grounds concerned pay, dismissal, placement on special leave and refusal of payments under the Civil Service Compensation Scheme. Each area was linked to allegations of sex or race discrimination.
3. The applicants argued that the Employment Tribunal and the Employment Appeal Tribunal had misapplied section 54A of the Race Relations Act 1976 and section 63A of the Sex Discrimination Act 1975, applying the two-stage process described in Igen Ltd v Wong [2005] ICR 931. The proposed appeal raised arguable questions about whether the first-stage burden had been met, whether the employer had supplied a non-discriminatory explanation, and whether the Tribunal had substituted its own explanation.
4. It was also properly arguable that the Tribunal had failed adequately to explain why the employer’s explanation answered the discrimination allegations, consistently with the approach associated with Meek v Birmingham City Council [1987] IRLR 250.
5. If the litigation continued, the court directed preparation of an amended appellants’ notice and any revised skeleton argument. It considered that any substantive appeal should be heard by three Lords Justices, with a time estimate of one and a half days.

• Court of Appeal (Civil Division): granted permission to appeal from the Employment Appeal Tribunal decision.
• Employment Appeal Tribunal: partly allowed the applicants’ appeal from the Employment Tribunal; concluded that the dismissals were automatically unfair under section 103A of the Employment Rights Act 1996; and held that the applicants were entitled to a shift allowance. It allowed the respondent’s appeal concerning costs and discharged the costs order.
• Employment Tribunal for London Central: found unfair dismissal under section 98 of the Employment Rights Act 1996, found limited success on sex and race discrimination and breach of contract, and rejected the other specified claims.