House of Lords Opinion - Victimisation under the Race Relations Act 1976
Yesterday (Thursday, 11th October) the House of Lords handed down its decision in Chief Constable of West Yorkshire Police v Khan, holding that an employer who refuses to provide a reference for an employee who has claimed race discrimination is not necessarily thereby guilty of victimisation.
Sergeant Khan had applied for, and been refused, promotion to inspector on several occasions within the West Yorkshire police. He lodged a claim with the employment tribunal alleging that the refusal to promote him was on grounds of his race (Indian).
Whilst that claim was pending, he applied for promotion/transfer to the Norfolk police force. The West Yorkshire police refused to provide a reference (after seeking legal advice) on the grounds of the pending litigation. They argued that they were placed in the invidious position of either having to repeat what might be a racially motivated assessment (thereby re-discriminating and possibly giving rise to an award of aggravated damages), or not repeating their previous comments and affecting the Force's credibility in Sergeant Khan's discrimination case.
By refusing to provide a reference because of a pending race discrimination claim, was the police force guilty of victimisation?
The House of Lords unanimously held that the police force was not guilty of victimisation.
Lord Nicholls pointed out that a finding of unlawful victimisation would mean that West Yorkshire police should have given Norfolk police a reference which have repeated the very views which were being challenged in pending judicial proceedings in the industrial tribunal as evidence of unlawful racial discrimination. This, said Lord Nicholls, "is a surprising proposition. To my mind it has only to be spelled out for it to be apparent that this cannot be right". He went on to say that "Employers, acting honestly and reasonably, ought to be able to take steps to preserve their position in pending discrimination proceedings without laying themselves open to a charge of victimisation".
The question which mattered was therefore "was Sergeant Khan refused a reference by reason that he had brought proceedings against the chief officer of police under this Act?"
The House of Lords said the answer was no. The reason why West Yorkshire Police refused to give a reference was NOT because Sergeant Khan had brought proceedings against them but because they were advised by their in-house legal department that it would be inappropriate to give a reference because there was pending litigation raising relevant issues. In traditional legal language, the institution of proceedings by Sgt Khan was a causa sine qua non of the refusal to give a reference but it was not the causa causans of that refusal.
Lord Mackay said that "once proceedings have been commenced, a new relationship is created between the parties. They are not only employer and employee but also adversaries in litigation. The existence of that adversarial relationship may reasonably cause the employer to behave in a way which treats the employee less favourably than someone who had not commenced such proceedings" and suggested that "a test which is likely in most cases to give the right answer is to ask whether the employer would have refused the request if the litigation had been concluded, whatever the outcome".
The House of Lords also considered who the correct comparator should be. Lord Scott stated that "the treatment of Sergeant Khan should be compared to the treatment that would have been accorded to an officer in a position the same in all respects as Sergeant Khan's save only that this hypothetical officer had not done the protected act, ie, in this case, had not brought race discrimination proceedings... It provides to employees who do one or other of the protected acts specified in section 2(1) the protection that Parliament must have intended them to have."
Thanks to Henry Scrope of DiscLaw Publishing (www.emplaw.co.uk) for sending me his summary of this case (which I have shamelessly plagiarised).