Khan & Anor v The Home Office

Under sections 54 A of the Race Relations Act 1976 and 63 A of the Sex Discrimination Act 1975, employment tribunals must apply the statutory burden of proof, but need not express their reasoning through a rigid, separately conducted two-stage process. They may assess all evidence together, provided they address whether the facts support an inference of discrimination and whether the employer has shown a genuine non-discriminatory reason.

Earlier discriminatory treatment does not, by itself, establish discrimination in later dismissal, pay, special leave or compensation decisions. Unreasonable or unfair conduct is not necessarily discriminatory. Compensation must be caused by and arise naturally and directly from the discriminatory act; an additional reasonable-foreseeability requirement is unnecessary.

Two staff interpreters employed by the Home Office alleged race and sex discrimination in their dismissal, remuneration, placement on special leave and refusal of Civil Service Compensation Scheme compensation. The Employment Tribunal upheld discrimination in the handling of historic grievances and found the dismissals unfair, but rejected discrimination claims concerning those four matters. The Employment Appeal Tribunal’s liability judgment, identified as UKEAT 025006LA, upheld the relevant conclusions while also finding automatic unfair dismissal and allowing a shift-allowance point. Its later remedies decision dismissed the appeal and cross-appeal.

Before the Court of Appeal, the appellants challenged the tribunal’s application of the statutory burden of proof and the adequacy of its reasoning. They also sought permission to appeal refusal of compensation for loss of a career, raising whether that loss flowed from the established discriminatory grievance handling.

Maurice Kay LJ delivered the leading judgment. Wall and May LJJ agreed. The appeals were dismissed and the applications for permission to appeal were refused.

1. Burden of proof. Sections 54 A of the Race Relations Act 1976 and 63 A of the Sex Discrimination Act 1975 require the tribunal to consider whether the claimant has proved facts capable of supporting an inference of discrimination and, if so, whether the respondent has shown that the act was not discriminatory. The statutory scheme need not be applied mechanically. The tribunal may hear and assess all the evidence together, and a failure to express the reasoning in strict two-stage terms is not an error of law where the statutory requirements have effectively been addressed.
2. Application to the discrimination claims. The Employment Tribunal was entitled to accept Mrs Ackland’s genuine, non-discriminatory explanation for the dismissals and the refusal of compensation. It was also entitled to find that the appellants were treated no differently from hypothetical comparators in relation to pay and special leave. The fact that the respondent had discriminated in handling historic grievances did not establish discrimination in these later matters. An employer need show only that the true reason was not discriminatory; it need not prove that its conduct was reasonable or fair.
3. The tribunal could rely on its own findings of fact to identify an obvious non-discriminatory reason, even if the respondent’s stated reason were rejected. Its concise reasoning on dismissal, pay, special leave and compensation was sufficient to enable the parties and an appellate court to understand the conclusions reached.
4. Loss of career. Compensation for direct race discrimination covers loss caused by and arising naturally and directly from the wrongful act, without an additional reasonable-foreseeability requirement. The Employment Tribunal correctly assessed whether the particular discriminatory handling of the grievances probably caused the loss of employment. Its finding that any such effect was remote was a permissible factual assessment, distinct from the consequences of unfair dismissal and other grievances. Permission to appeal on this issue therefore had no real prospect of success.

The litigation remained subject to the Employment Tribunal considering the consequences of the Home Office’s failure to re-engage the appellants.

1. Court of Appeal (Civil Division) dismissed the appeals and refused permission to appeal.
2. Employment Appeal Tribunal, in the liability decision identified as UKEAT 025006LA, upheld the relevant Employment Tribunal conclusions, additionally finding automatic unfair dismissal and allowing a shift-allowance point. In the later remedies decision, it dismissed the appeal and cross-appeal.
3. Employment Tribunal found discrimination in the handling of historic grievances and unfair dismissal, but rejected discrimination claims concerning dismissal, pay, special leave and Civil Service Compensation Scheme compensation.