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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> West Yorkshire Police & Ors v Khan [2000] EWCA Civ 53 (24 February 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/53.html
Cite as: [2000] EWCA Civ 53
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Case No:
EATRF
1999/0003/A1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (
CIVIL
DIVISION)
ON APPEAL FROM
THE
EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE PETER CLARK)
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 24 February 2000
THE MASTER OF THE ROLLS
LADY JUSTICE HALE
and
LORD MUSTILL
- - - - - - - - - - - - - - - - - - - - -
CHIEF CONSTABLE OF WEST YORKSHIRE POLICE & ORS |
Appellant | |
- V - |
||
RAHAM NOOR KHAN |
Respondent |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
MR DAVID BEAN QC & MR DAVID JONES (instructed by Mr AK Hussain, Solicitor, West Yorkshire Police Wakefield WF1 3QP for the Appellants)
MR JOHN HAND QC & MISS MELANIE TETHER (instructed by Russell Jones & Walker, Leeds LS1 2HA for the Respondent)
Judgment
As Approved by the Court
Crown Copyright ©
LORD WOOLF MR :
1. This appeal raises a short but by no means easy point to resolve under the Race Relations Act 1976 ("RRA 1976"). As the relevant statutory provisions contained in the Sex Discrimination Act 1975 ("SDA 1975") are materially in identical terms it applies to that legislation as well. The issue involved can be encapsulated by asking : What should be the proper approach to selecting an appropriate comparator in determining complaints that a person has been victimised under either of the Acts?
Background
2. The appeal is from the judgment of the Employment Appeal Tribunal ("EAT") who gave judgment on 28 July 1998 dismissing the appellant's appeal from two decisions of an Employment Tribunal ("ET"), the first on 22 April 1997 and the second on 30 July 1997. The decisions were that the appellant had unlawfully victimised the respondent within the meaning of s.2 of the RRA 1976 and the respondent was awarded £1,500 damages.
3. The respondent was a Police Sergeant in the West Yorkshire Police. He believed that the appellant had discriminated against him on racial grounds by failing to support his application for promotion to Inspector. For this reason on 1 September 1996 he made a complaint to the ET alleging such discrimination. Subsequently in October 1996 the respondent completed an application form for an appointment as Inspector in the Norfolk Police. The Norfolk Police requested the employer's observations and recommendations on the suitability of the respondent for that post. The appellant's response was :
"Sergeant Khan has an outstanding Industrial Tribunal application against the Chief Constable for failing to support his application for promotion.
In the light of that, the Chief Constable is unable to comment any further for fear of prejudicing his own case before the Tribunal."
4. The Norfolk Police's request for the respondent's last two staff appraisals and a copy of any computer printout on the appellant's personnel system was refused. On learning of this the respondent amended his application to the ET to add a complaint of victimisation.
5. In fact the respondent was not excluded from assessment by the Norfolk Police. This was because the Norfolk Police have a policy to exclude only those applicants in respect of whom the recommendation stated the applicant was not supported. The appellant's response did not say this, so the respondent's application proceeded, but it was unsuccessful.
6. The respondent was not prejudiced by the conduct on which he based his claim for victimisation in relation to his application because, if a reference had been given it would in all probability have been adverse and, this being so, the respondent's application would not have been considered by the Norfolk Police. The ET dismissed the respondent's claim in respect of direct discrimination but his claim for victimisation succeeded. The appeal only concerns this decision and the award. The ET concluded that the respondent had not been caused any economic loss by the victimisation but that he had been caused an injury to his feelings. It was for this reason that the award of £1,500 was made. The EAT dismissed the appellant's appeal on broadly the same grounds as those of the ET. The decision of the ET as to damages was challenged on the grounds that the respondent gave no evidence as to injury to his feelings. The EAT held that such evidence had been given at the liability hearing.
7. In his Notice of Appeal, the appellant contends that :
i. The ET and the EAT chose the wrong comparator in considering the issue of victimisation. In particular by rejecting a comparator who had brought proceedings against the employer other than under the RRA 1976, the tribunals had misdirected themselves in law.
ii. The ET and the EAT had also misdirected themselves in coming to the conclusion that the appellant had acted "by reason" that the respondent had brought proceedings under the RRA 1976.
iii. The ET and the EAT had erred in ruling that the evidence of injured feelings given at the liability hearing was sufficient to justify the award.
iv. The award was excessive.
The Statutory Provisions
8. Turning to the statutory provisions, the starting point is the definition of racial discrimination contained in Part 1, s.1 RRA 1976. This section is in the following terms :
"1. Racial discrimination
(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if -
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or
(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but -
(i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and
(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and
(iii) which is to the detriment of that other because he cannot comply with it."
9. The following section, s.2, contains a description of what constitutes victimisation. We are here only concerned with victimisation under s.2(1)(a). The relevant part of the section reads as follows :
"2. Discrimination by way of victimisation
(1) A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has -
(a) brought proceedings against the discriminator or any other person under this Act; or
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or
(c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or
(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
(2) Subsection (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith."
10. The next section to which it is necessary to refer is s.3. Here the relevant provisions are :
"3. Meaning of "racial grounds", "racial group" etc
(1) In this Act, unless the context otherwise requires -
"racial grounds" means any of the following grounds, namely colour, race, nationality or ethnic or national origins;
"racial group" means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person's racial group refer to any racial group into which he falls ...
(3) In this Act -
(a) references to discrimination refer to any discrimination falling within section 1 or 2; and
(b) references to racial discrimination refer to any discrimination falling within section 1,
and related expressions shall be construed accordingly.
(4) A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
11. A distinction is drawn in s.3(3) between "discrimination" which is common to both ss.1 and 2 and "racial discrimination" which is only apparently relevant in relation to s.1. This is at least an indication that racial discrimination is not involved in discrimination by way of victimisation.
12. The Act, having set out what is meant by racial discrimination and discrimination by way of victimisation, deals in the succeeding Parts with the different categories of discrimination. Part II deals with discrimination in the employment field. We are concerned with discrimination against applicants and employees under s.4. s.4 so far as relevant provides :
"(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee -
(a) in the terms of employment which he affords him; or
(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or
(c) by dismissing him, or subjecting him to any other detriment."
13. This case involves discrimination by way of victimisation under s.4(2)(b) or (c).
The Interpretation of s.2
14. Although it is important to read the relevant provisions of the Act as a whole, what is in issue on this appeal is the proper interpretation of s.2. As to this, my initial reaction was that as the legislation is concerned with racial discrimination, victimisation which has nothing to do with race is unlikely to be intended to be unlawful under s.4. If this were not the position, there would be a danger of this Act not achieving the intention which is reflected in its long title, namely to make "fresh provision with respect to discrimination on racial grounds and relations between people of different racial groups". To regard a person as acting unlawfully when he had not been motivated either consciously or unconsciously by any discriminatory motive is hardly likely to assist the objective of promoting harmonious racial relations. However, as the able arguments advanced by Mr Bean QC on behalf of the appellant and Mr Hand QC on behalf of the respondent made clear, the position is not as straightforward as that.
15. Mr Hand submits, rightly in my judgment, that to interpret s.2 properly it is necessary to give effect to three features of the section. First, there is a requirement that the section is to be looked at in its statutory context. This arises because of the presence of the words "in any circumstances relevant for the purposes of any provision of this Act". This feature is supported by the sentence in the second paragraph of the speech of Lord Nicholls of Birkenhead in Nagarajan v London Regional Transport [1999] ICR 877 where at p.884D where he states: "[s]ection 2 should be read in the context of section 1". Mr Hand contends here that this involves recognising that s.2 is designed to prevent those who have taken steps to resist racial discrimination from being victimised in consequence of doing so.
16. In this case, the general objective was to protect those who brought proceedings under "this Act". I agree with this general approach which is supported by the very wide language with which s.2(2) concludes.
17. The second feature of s.2 to which Mr Hand draws attention is the requirement that for a person to be victimised he must be treated "less favourably than in those circumstances the person alleged to be guilty of victimisation would treat other persons". This is the feature on which Mr Hand accepts the outcome of this appeal depends. He submits correctly that this feature requires a comparison between the manner in which the person victimised is treated and the way in which the appropriate comparator would be treated. The question is: who is the appropriate comparator? This is the rub to which it will be necessary for me to return. Mr Bean submits that the appropriate comparator is some other employee who has brought proceedings but not under the Act. Such an employee, Mr Bean with reason contends, would not have been treated any differently from the way in which the respondent was treated.
18. The third feature which Mr Hand identifies is that the complainant must have been victimised "by reason that [he] has" done the protected act. Here that is set out in s.2(1)(a). Again I accept that Mr Hand has correctly identified a feature of the section. In the application of this third feature, Mr Hand submits all that is required is the proper application of what has become known as a "but for" test. This is a test which is derived from the comparable provisions of the SDA 1975 but is equally applicable to the RRA 1976. It is a test which has been considered by the House of Lords in three decisions to which it is necessary for me to refer. However before I do so I should explain that it depends on approaching the interpretation of the relevant sections of the SDA 1975 and of the RRA 1976 in the same manner.
19. S.1(1)(a) RRA 1976 requires the discrimination to have been "on racial grounds". S.2(1) RDA 1976 requires the victimisation must be "by reason that ....". The equivalent provision to s.1 of the RRA 1976 is s.1 of the SDA 1975. That section requires the discrimination to be "on the ground of her sex" (s.1(1)(a). S.4 of the SDA 1975, which is the equivalent of s.2 of the RRA 1976, requires the victimisation to be "by reason that the person victimised has" done the protected act. In R v The Birmingham City Council, ex parte Equal Opportunities Commission [1989] AC 1155 and James v The Eastleigh Borough Council [1990] ICR 554 the House of Lords confirmed earlier authorities which had held that it was not correct to construe the phrase "on the ground of her sex" as referring to the alleged discriminator's reason for taking the action of which complaint is made. The question is objective and not subjective. As Lord Goff said in the Birmingham case (at pp 1194A-C) :
"There is discrimination under the statute if there is less favourable treatment on the ground of sex, in other words if the relevant girl or girls would have received the same treatment as the boys but for their sex. The intention or motive of the defendant to discriminate, though it may be relevant so far as remedies are concerned, ... is not a necessary condition of liability; it is perfectly possible to envisage cases where the defendant had no such motive, and yet did in fact discriminate on the ground of sex. Indeed, as Mr Lester pointed out in the course of his argument, if the council's submission were correct it would be a good defence for an employer to show that he discriminated against the woman not because he intended to do so but (for example) because of customer preference, or to save money, or even to avoid controversy."
20. In the James case, which turned on the fact that the retirement age for men was 65 and that for women was 61, with the consequence that a 61 year old man was treated less favourably than his wife who was of the same age, Lord Bridge (at p.568A) identified the question and the answer as being "'[w]ould the plaintiff, a man of 61, have received the same treatment as his wife but for his sex?' An affirmative answer is inescapable."
21. In the same case (at p.576C-F) Lord Goff said :
"I incline to the opinion that, if it were necessary to identify the requisite intention of the defendant, that intention is simply an intention to perform the relevant act of less favourable treatment. Whether or not the treatment is less favourable in the relevant sense, i.e. on the ground of sex, may derive either from the application of a gender-based criterion to the complainant, or from selection by the defendant of the complainant because of his or her sex; but, in either event, it is not saved from constituting unlawful discrimination by the fact that the defendant acted from benign motive. However, in the majority of cases, I doubt if it is necessary to focus upon the intention or motive of the defendant in this way. This is because, as I see it, cases of direct discrimination under section 1(1)(a) can be considered by asking the simple question: would the complainant have received the same treatment from the defendant but for his or her sex? This simple text possesses the double virtue that, on the one hand, it embraces both the case where the treatment derives from the application of a gender-based criterion, and the case where it derives from the selection of the complainant because of his or her sex; and on the other hand it avoids, in most cases at least, complicated questions relating to concepts such as intention, motive, reason or purpose, and the danger of confusion arising from the misuse of those elusive terms. I have to stress, however, that the "but for" test is not appropriate for cases of indirect discrimination under section 1(1)(b), because there may be indirect discrimination against persons of one sex under that subsection, although a (proportionately smaller) group of persons of the opposite sex is adversely affected in the same way."
22. The third House of Lords decision is that in Nagarajan v London Regional Transport [1999] ICR 877. This case involved the RRA 1976 and s.2(1) of the Act. The House of Lords held, as appears from the headnote of that case, that a finding of direct discrimination on racial grounds under s.1(a) of the RRA 1976 did not require that the discriminator was consciously motivated in treating the complainant less favourably. It was sufficient if it could properly be inferred from the evidence that, regardless of the discriminator's motive or intention, a significant cause of his decision to treat that complainant less favourably was that person's race. This was because no proper distinction could be drawn between the terms "on racial grounds" in s.1(1)(a) and "by reason that" in s.2(1) of the Act of 1976. The discriminator need not have realised that he had in fact been motivated by his knowledge of the complainant having previously sought to enforce her rights under the Act. In his speech, Lord Nicholls first of all considered the position under s.1(1)(a) under the RRA 1976 and then turned to s. 2. He said (at p.886A-D) :
"'On racial grounds' in section 1(1)(a) and `by reason that' in section 2(1) are interchangeable expressions in this context. The key question under section 2 is the same as under section 1(1)(a): why did the complainant receive less favourable treatment? The considerations mentioned above regarding direct discrimination under section 1(1)(a) are correspondingly appropriate under section 2. If the answer to this question is that the discriminator treated the person victimised less favourably by reason of his having done one of the acts listed in section 2(1)("protected acts"), the case falls within the section. It does so, even if the discriminator did not consciously realise that for example, he was prejudiced because the job applicant had previously brought claims against his under the Act. In so far as the dictum in Aziz v Trinity Street Taxis Limited [1988] ICR 534, 548. ("a motive which is consciously connected with the race relations legislation") suggests otherwise, it cannot be taken as a correct statement of the law. ...Although victimisation has a ring of conscious targeting, this is an insufficient basis for excluding cases of unrecognised prejudice from the scope of section 2. Such an exclusion would partially undermine the protection section 2 seeks to give to those who have sought to rely on the Act or been involved in the operation of the Act in other ways."
23. In view of the combined effect of the three decisions of the House of Lords to which I have referred, the tribunals in this case were correct to take the view that if the respondent was treated less favourably contrary to s.2 that was by reason of a circumstance referred to in s. 2(1)(a) RRA 1976. If it had not been for the proceedings brought under the Act a reference would have been provided.
24. It is now necessary to return to the question as to who is the correct comparator. Here I would like to look favourably upon Mr Bean's submission that you should ask whether the respondent was treated any differently from anyone else who brought proceedings. However, both on authority and on my construction of the Act, I feel driven to conclude that this is not the correct approach. The correct approach to the application of s.2 in this context is to identify the appropriate comparator, not by looking at the reason why the reference was not provided, but by considering what was requested. Here what was requested was a reference and it is necessary to compare the manner in which other employees in relation to whom a reference was requested would normally be treated and compare the way they would normally be treated with the way in which the respondent was treated. It is the request for a reference which is the circumstance which is relevant in finding the comparator under s.2 of the Act. The reason why the respondent was treated less favourably with regard to a reference was because he had brought proceedings. It would not, however, be correct to compare him only with those persons in order to ascertain whether he has been treated less favourably.
25. Turning to the authorities there are two cases which have to be considered here. The earlier case is Cornelius v UC Swansea [1987] IRLR 141 and the later case is Aziz v Trinity Street Taxis Limited [1988] ICR 534. The latter contains the dicta which Lord Nicholls criticised in his speech in Nagarajan. Both cases are decisions of this court. Mr Bean submits the Cornelius case requires us to find in his favour on the question of whether there has been less favourable treatment. Mr Hand contends that the Aziz case means that we are compelled to come to the opposite conclusion.
26. The Cornelius case involved a lady who brought various applications against the University by which she had been employed. One of the applications was in respect of victimisation under s.2 of the SDA 1975. The judgment with which the other members of the court agreed was given by Bingham LJ. I should set out the relevant paragraphs of the judgment in full (paras. 31-33). (It will be remembered that s.4 of the SDA 1975 is materially the same as s.2 of the RRA 1976.)
"In all these sections discrimination has as its primary meaning that which is given by s.1 (as extended to men by s.2). But the Act would be very defective if it stopped there, because those seeking to enforce the Act by the machinery provided or to promote the operation of the Act by word or deed could be subjected to penalties (or less favourable treatment) by persons who could say with some plausibility that they were not discriminating on grounds of sex by simply penalising troublemakers. If, therefore, the objects of the Act were to be achieved, there had to be protection for those who sought to rely on it or to promote its operation. That is the purpose of s.4, which has an obvious although partial analogy to the law of contempt. Two conclusions follow. The first is that in all the relevant substantive sections in Parts II and III of the Act `discriminate' is to be understood as bearing both its s.1 meaning and its s.4 meaning. The second is that discrimination under s.4 is not discrimination on the ground of sex but discrimination on the ground of conduct of the type there described. I think the language of s.4 makes that clear, but if there were doubt, s.5(1) would resolve it.
In this appeal the crucial provision is s.4(1)(a). For the appellant's complaint to succeed here it would have to appear,
(i) that in refusing or omitting to afford the appellant access for opportunities for transfer or by subjecting her to the detriment of denying her access to the grievance procedure the College treated the applicant less favourably than it would in the same circumstances have treated other persons; and
(ii) that it did so because the appellant had brought proceedings against the College under the Act. That is the effect, on the facts here, of reading s.4(1)(a) into s.6(2)(a) and (b).
There is no finding here that (i) is made out, and it would certainly not be safe to infer that conclusion from the findings which have been made. The same is, in my judgment, true of (ii). There is no reason whatever to suppose that the decisions of the Registrar and his senior assistant on the applicant's requests for a transfer and a hearing under the grievance procedure were influenced in any way by the facts that the appellant had brought proceedings or that those proceedings were under the Act. The existence of proceedings plainly did influence their decisions. No doubt, like most experienced administrators, they recognised the risk of acting in a way which might embarrass the handling or be inconsistent with the outcome of current proceedings. They accordingly wished to defer action until the proceedings were over. But that had, so far as the evidence shows, nothing whatever to do with the appellant's conduct in bringing proceedings under the Act. There is no reason to think that their decision would have been different whoever had brought the proceedings or whatever their nature, if the subject matter was allied. If the appellant was victimised, it is not shown to have been because of her reliance on the Act. I differ from the EAT's view that a breach of s.4 was established."
27. Mr Bean relies on the final paragraph as indicating that it did not matter who brought the proceedings.
28. I do not regard this as being the correct way in which to understand what Bingham LJ was saying. The position is complicated by the fact that Bingham LJ was dealing in the paragraph with both the requirement for less favourable treatment and the requirement that the less favourable treatment had to be by reason of the prohibited act. What I understand Bingham LJ to have been saying was that it had been found that the fact that Mrs Cornelius had brought proceedings under the Act had nothing to do with her being deprived of the opportunity for a transfer or denied access to the grievance procedure. This was therefore a situation where she fell down on what Bingham LJ identified as feature (ii). This is a different question from that raised by the requirement of less favourable treatment, namely feature (i), and it would be a mistake to regard Bingham LJ in the second half of the paragraph as indicating who is a comparator. I do not therefore regard the Cornelius case as requiring this court to adopt a construction of s. 2 which is contrary to my opinion. Before leaving Cornelius it is right to draw attention to the fact that two paragraphs earlier Bingham LJ adopts an approach to the Act which is very much in accord with the general approach to the Act's construction which I believe is required.
29. Turning therefore to the case of Aziz. This case also involved the RRA 1976. Mr Aziz had brought a complaint of discrimination against the Association of Taxi Cabs because he thought he had been treated unfairly. His complaint was for discrimination. To support his case he made secret recordings. He was expelled from the Association on the grounds that his doing so was a serious breach of the trust which had to exist between members of the Association. He then complained that his expulsion was victimisation for the purposes of s.2(1)(c) of the RRA 1976. In the case of Mr Aziz, the Association would probably have treated anyone who made the recordings in the same way. It was argued therefore that their conduct was not less favourable treatment. However, this approach was rejected by this court. Slade LJ on this point stated (at p.545H-546B) :
"A complaint made in reliance on section 2 necessarily presupposes that the complainant has done a protected act. If the doing of such an act itself constituted part of the relevant circumstances, a complainant would necessarily fail to establish discrimination if the alleged discriminator could show that he treated or would treat all other persons who did the like protected act with equal intolerance. This would be an absurd result and in view of the separate, second limb of section 2(1), directed to the questions of causation to which we are about to come, such a construction is not, in our judgment, required for the protection of persons who might otherwise be found to have discriminated unlawfully by virtue of the sub-section. In our judgment, for the purpose of the comparison which section 2(1) makes requisite, the relevant circumstances do not include the fact that the complainant has done a protected act."
30. This part of the judgment of Slade LJ was not criticised by Lord Nicholls, although it is not informed by the three subsequent decisions of the House of Lords to which I have already referred. Slade LJ adopts an approach to s.2 which is consistent with the approach which I regard as being correct. It is therefore in favour of Mr Hand's approach.
Conclusions
31. If the statutory provisions are construed in this way, then it means that the decision of both tribunals were correct. The respondent was treated less favourably and the reason was that he had done a protected act.
32. As to the award of damages, it must be remembered the appeal to this court (and to the EAT) was confined to a point of law. The ET was entitled to take into account the evidence which it received at the earlier hearing as to the effect on the respondent of his being denied a reference. Although, as Mr Bean argued, in the event the respondent may not have been prejudiced by the failure to provide a reference, at the time the respondent would not be aware of this. He could naturally be distressed to think that he might not obtain a job which he wanted because of the refusal of his employer to provide a reference. In these circumstances an award was appropriate. The amount of the award is surprising. In comparison to what is awarded for non-pecuniary loss in relation to personal injury, the award seems high. However, Mr Bean recognises that unless he can show that there should have been no award, this court would not interfere with the decision of the ET. I do not consider Mr Bean has succeeded in establishing that there should be no award.
33. Accordingly I would dismiss this appeal.
LADY JUSTICE HALE :
I agree.
LORD MUSTILL :
I also agree.
(Order does not form part of the approved judgment).