Khan v Royal Mail Group Ltd & Ors

In discrimination claims subject to a reverse burden, the claimant must first prove, on the balance of probabilities, the primary facts from which a tribunal could conclude that unlawful discrimination occurred. Difference in status and treatment alone is insufficient. The tribunal may consider evidence about reasons at this stage. Only if a prima facie case is established does the burden move to the respondent to provide an adequate non-discriminatory explanation. The burden provisions have little to add where the tribunal makes positive findings of fact. An imperfect self-direction will not invalidate a decision where, read as a whole, the tribunal applied the correct approach and any misdirection had no material effect. An appeal from an Employment Tribunal lies only on a point of law.

Khalid Khan, a Muslim of Pakistani origin employed by Royal Mail, brought complaints of race and religious discrimination, harassment and victimisation. The Employment Tribunal dismissed the complaints. The Employment Appeal Tribunal dismissed his appeal.

The Court of Appeal granted permission on the question whether the Employment Tribunal had correctly applied the statutory burden of proof. The appeal concerned the Tribunal’s treatment of individual allegations, its acceptance of non-discriminatory explanations, and an apparently inconsistent concluding paragraph.

Appeal dismissed. Lord Justice Lewison gave the judgment, with Lord Justice Christopher Clarke and Lord Justice Rimer agreeing.

1. Reverse burden. The statutory scheme required Mr Khan first to prove, on the balance of probabilities, the primary facts relied upon. These included the occurrence of the alleged acts and any relevant difference in treatment. Difference in status and treatment alone established only a possibility of discrimination. The Tribunal could consider available evidence about reasons at stage 1. If a prima facie case was established, the burden shifted to the respondent to provide an adequate non-discriminatory explanation. The division into stages had an element of unreality, but remained the correct analytical framework. This approach was established in Igen Ltd v Wong [2005] EWCA 142 and Madarassy v Nomura International plc [2007] EWCA Civ 33, and was subject to the qualification in Hewage v Grampian Health Board [2012] UKSC 37 that the provisions had little to offer where the Tribunal could make positive findings of fact.
2. Nature of the claims. The reverse burden did not apply to racial victimisation claims, following Oyarce v Cheshire County Council [2008] EWCA Civ 434. By contrast, it was common ground that it applied to religious victimisation under regulation 28 of the Employment Equality (Religion or Belief) Regulations 2003. Whether conduct was on racial or religious grounds ordinarily concerned the actor’s conscious or unconscious reason, a question of fact rather than causation as a legal conclusion. An objectively and inherently discriminatory act was different, since it did not require an inquiry into subjective motivation: James v Eastleigh Borough Council [1990] 2 AC 751 and Chief Constable of the West Yorkshire Police v Khan [2001] UKHL 48.
3. Application. Most allegations failed at stage 1 because the Tribunal rejected the factual foundation relied upon. In relation to the allegation concerning Ms Allen’s reference to cultural differences, the Tribunal found that the remark could support an inference of discrimination without an explanation, but accepted her evidence that she meant a difference in attitude and not race or religion. In relation to the question about women, it rejected the evidence that the words used were white women and accepted Ms Allen’s explanation. Similar findings defeated the remaining allegations.
4. The Tribunal’s treatment of one allegation and its broad concluding paragraph were imperfectly expressed. Nevertheless, its decision, read as a whole, showed that it had applied the correct approach, made positive findings of fact, and accepted non-discriminatory explanations where appropriate. Any misdirection was immaterial. The Court of Appeal, confined to questions of law, found no basis for disturbing the decision.

• Court of Appeal (Civil Division): dismissed the appeal on 30 July 2014, holding that the Employment Tribunal had not made a material error of law.
• Employment Appeal Tribunal: dismissed Mr Khan’s appeal from the Employment Tribunal decision under reference UKEAT016011DM.
• Employment Tribunal: dismissed the complaints of race and religious discrimination, harassment and victimisation.