Khan & Anor v The Home Office

The Court of Appeal dismissed appeals by two long‑serving Home Office interpreters who alleged race and sex discrimination, unfair treatment in grievance handling, and related claims arising from their subsequent redundancy. The court affirmed that the ET and EAT had applied the revised burden of proof regime introduced by section 54A of the Race Relations Act 1976 and section 63A of the Sex Discrimination Act 1975 (as construed by Igen Ltd v Wong and related authorities) correctly and that it was permissible for tribunals to consider all evidence together rather than conducting a rigid two‑stage hearing. The court held that the Employment Tribunal had not erred in concluding the decision to dismiss and the decisions on pay, special leave and Civil Service Compensation Scheme payments were for non‑discriminatory reasons and that the tribunal gave adequate reasons for those conclusions.

Background and parties: Mrs Iris Odette King and Mrs Marti Khan (appellants) were long‑serving staff interpreters at Heathrow Terminal 3. They complained from the mid‑1990s about preferential use of freelance interpreters and, in 2001, raised grievances including allegations of race and sex discrimination. The Home Office (respondent) mishandled those grievances and subsequently placed the appellants on special paid leave and later dismissed them on grounds of redundancy. The Employment Tribunal found that the grievance handling amounted to race and sex discrimination and that the dismissals were unfair but did not find that the dismissals were caused by discrimination. The EAT allowed limited further successes for the appellants (including an automatic unfair dismissal finding under section 98A ERA 1996 and a shift allowance point).

Procedural posture: Appeal to the Court of Appeal following Employment Tribunal (liability decision 16 November 2005) and Employment Appeal Tribunal decisions (including the EAT decision of 17 November 2006 and a subsequent EAT decision on remedies).

Nature of the claims/relief sought: The appellants sought findings that the dismissals and other adverse actions (pay, special leave, refusal of Civil Service Compensation Scheme payments) were discriminatory and relief flowing from that discrimination, including compensation for loss of career in the Home Office.

Issues framed by the court:

• Whether the ET and EAT erred in law in applying the statutory burden of proof provisions (section 54A RRA 1976 and section 63A SDA 1975) and the approach in Igen Ltd v Wong et al;
• Whether the ET provided adequate reasons for rejecting discrimination in respect of dismissal, pay, special leave and CSCS payments;
• Whether the remedy claim for loss of career could succeed under the causal test in Essa v Laing.

Court’s reasoning and conclusions: The court reviewed the statutory burden of proof provisions and the authorities (Igen, Barton, Laing, Madarassy) and concluded tribunals need not adopt an inflexible two‑stage hearing model if they have properly considered the evidential issues and the respondent’s explanation. On the facts, the ET had accepted the genuine, non‑discriminatory explanations proffered by the Home Office decision‑maker (Mrs Ackland) for dismissal, for pay decisions, for placing the appellants on special leave and for refusal of CSCS payments. The court found no legal error in those conclusions and considered the ET’s reasons sufficient for appellate purposes. On the remedy point, the court held the ET had correctly applied Essa v Laing and there was no adequate basis to infer that the proven discrimination alone caused the loss of career; the proposed appeal had no real prospect of success.

Appeal dismissed. The Court of Appeal held that the Employment Tribunal and the Employment Appeal Tribunal had applied the statutory burden of proof provisions (section 54A Race Relations Act 1976 and section 63A Sex Discrimination Act 1975) and the authorities (notably Igen Ltd v Wong, Barton, Laing and Madarassy) correctly; the ET permissibly accepted non‑discriminatory explanations for dismissal, pay, special leave and CSCS decisions and gave adequate reasons. The proposed challenge to the ET’s assessment of causation for a "loss of career" remedy under Essa v Laing had no real prospect of success and permission to appeal was refused.

Originating Employment Tribunal liability decision 16 November 2005 (ET). Appeal to the Employment Appeal Tribunal leading to a decision dated 17 November 2006 (EAT) which gave the appellants further limited success (including automatic unfair dismissal under section 98A ERA 1996 and a shift allowance point). The case then returned to the ET for remedies; a subsequent EAT decision (date not specified in the judgment) dismissed the cross‑appeals on remedy points. The present appeal to the Court of Appeal was heard on 8 April 2008 and decided 23 May 2008.