Komeng v Sandwell Metropolitan Borough Council

In a direct discrimination claim, a but for connection between a protected characteristic and treatment is not enough. The treatment must be because of a discriminatory ground. An employer’s checks of a foreign national’s immigration status and right to work are not, without more, discrimination on grounds of nationality, because immigration restrictions create materially different circumstances. The same principle applies during employment as at recruitment. Questions about the technical scope of immigration offences and statutory defences do not alter the analysis where the employer acted from a general concern to employ only someone entitled to work. Factual inferences from codes of practice remain matters for the Employment Tribunal.

The applicant, a Ghanaian national of African ethnic origin, worked part-time as a healthcare assistant for the respondent. The respondent repeatedly checked his immigration status and right to work, reduced his hours after receiving misleading information, and rejected his grievance.

His claims for direct discrimination, harassment and victimisation were rejected by the Employment Tribunal. The Employment Appeal Tribunal dismissed his appeal at a preliminary hearing on 3 October 2012, holding that it had no reasonable prospect of success. The applicant renewed his application for permission to appeal, alleging errors concerning the comparator, the but for test, immigration legislation, inferences from codes of practice, and justification.

1. Disposition. Lord Justice Underhill refused the renewed application for permission to appeal. The grounds had no prospect of success.
2. Comparator and nationality. The appropriate hypothetical comparator was not a white British employee who did not need to prove a right to work. It had to reflect the applicant’s position as a foreign national subject to immigration requirements. The court followed the reasoning in Dhatt v McDonald’s Hamburgers Limited [1991] IRLR 130, which treated the need for a foreign national to prove immigration status as arising from materially different circumstances recognised by law. That reasoning was not confined to recruitment and applied equally to checks made during employment.
3. Causation and immigration legislation. A but for connection was not sufficient to establish direct discrimination. As confirmed in Ahmed v Amnesty International [2009] ICR 1450, a discriminatory ground still had to be shown. The possible construction of section 8 of the Asylum and Immigration Act 1996 was immaterial. Even if the offence arose only at the commencement of employment, the employer’s actual ground was its general concern to ensure that the applicant was entitled to work. The replacement civil-penalty regime under the Immigration, Asylum and Nationality Act 2006 did not alter that analysis.
4. Other grounds. Inferences about what caused the employer to act were matters of fact for the Employment Tribunal and did not, without more, raise a question of law. Direct discrimination has no defence of justification or reasonable behaviour once established, but that issue did not arise because no discriminatory ground was identified. The reasoning in Dhatt was therefore an insuperable obstacle to the application.

• Court of Appeal (Civil Division): on 30 April 2013, the renewed application for permission to appeal was refused; the grounds had no prospect of success: [2013] EWCA Civ 695.
• Employment Appeal Tribunal: at a preliminary hearing on 3 October 2012, the appeal was dismissed as having no reasonable prospect of success.
• Employment Tribunal: rejected the claims for direct discrimination, harassment and victimisation.