Khan v Royal Mail Group Ltd & Ors

The Court of Appeal dismissed Mr Khan's appeal against the Employment Tribunal's and Employment Appeal Tribunal's dismissal of his claims for race and religion discrimination and victimisation. The court reviewed the correct legal approach to the burden of proof in discrimination claims, as set out in section 54A(2) of the Race Relations Act 1976 and Regulation 29 of the Employment Equality (Religion or Belief) Regulations 2003, and the leading authorities Igen Ltd v Wong and Madarassy v Nomura. The tribunal was required to determine (stage 1) whether the claimant had proved the primary facts on the balance of probabilities and, if so, (stage 2) whether the respondent had provided an adequate non-discriminatory explanation.

The Court of Appeal held that in this case most of Mr Khan's allegations failed at stage 1 because the Employment Tribunal found that he had not established the primary facts relied on. In respect of the allegation that a manager referred to "cultural differences", the tribunal accepted the manager's non-discriminatory explanation at stage 2. Any imprecise wording in the tribunal's concluding paragraph did not amount to an error of law or cause material unfairness, because the tribunal had made positive findings of fact and applied the correct legal test.

Background and parties: Mr Khalid Khan, a Muslim of Pakistani origin employed by Royal Mail, alleged a series of acts of discrimination and victimisation by managers. He complained of race and religion discrimination and victimisation arising from managerial remarks, the handling of internal grievances and selection processes following a restructure.

Procedural posture: The Employment Tribunal dismissed his complaints. The Employment Appeal Tribunal dismissed his appeal. Mr Khan obtained permission to appeal to the Court of Appeal on a single ground: whether the Employment Tribunal correctly applied the burden of proof in discrimination proceedings.

Nature of relief sought: Overturning the tribunal decisions and remitting or allowing claims of unlawful discrimination and victimisation.

Issues framed by the court:

• What is the correct approach to the burden of proof in race and religion discrimination claims (stage 1/ stage 2 and the reverse burden under the statutory provisions)?
• Whether the Employment Tribunal, in its findings on individual allegations, applied the correct legal test or erroneously required the claimant to prove both the primary facts and the unlawfulness of the acts.
• Whether any misdirection in language was material to the tribunal's decision.

Reasoning and findings: The court rehearsed the statutory reverse burden provisions (section 54A(2) RRA and Regulation 29) and the established authorities (Igen and Madarassy) that require the claimant first to prove on the balance of probabilities the primary facts relied upon; only then does the burden shift to the respondent to provide an adequate non-discriminatory explanation. The court also noted guidance from Hewage that the burden provisions add little where the tribunal can make positive findings of fact. The tribunal considered each allegation individually; in the majority the tribunal rejected Mr Khan's primary factual assertions (for example, rejecting that a manager used the phrase "white women"), so the complaints failed at stage 1. Where the tribunal did address motive (notably the "cultural differences" remark), it accepted the manager's explanation and therefore properly concluded there was no discrimination. The Court of Appeal found imprecise phrasing in the tribunal's concluding paragraph but concluded the tribunal had applied the correct legal approach and that any misphrasing was not materially prejudicial.

Other points: The court recorded that the reverse burden does not apply to claims of race victimisation (Oyarce) but does apply to victimisation on grounds of religion under the relevant regulations. The court emphasised that appellate review on such factual determinations is limited.

Appeal dismissed. The Court of Appeal held that the Employment Tribunal correctly applied the two-stage approach to the burden of proof in discrimination claims (claimant must prove primary facts at stage 1; then the burden shifts to the respondent at stage 2). Most of Mr Khan's allegations failed at stage 1 because the tribunal rejected the primary factual foundations; where the tribunal accepted a non-discriminatory explanation it lawfully applied the reverse burden. Any imprecise language in the tribunal's concluding paragraph was not material and did not amount to an error of law.

Appeal to the Court of Appeal from the Employment Appeal Tribunal (UKEAT016011DM), which reviewed the Employment Tribunal's dismissal of discrimination and victimisation complaints. Permission to appeal to the Court of Appeal was granted by Rimer LJ; final determination in this court is [2014] EWCA Civ 1082.