House of Lords
|Session 2001- 02
Publications on the Internet|
|Judgments - Chief Constable of West Yorkshire Police v. Khan
HOUSE OF LORDS
Lord Nicholls of Birkenhead Lord Mackay of Clashfern Lord Hoffmann Lord Hutton Lord Scott of Foscote
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
CHIEF CONSTABLE OF WEST YORKSHIRE POLICE
ON 11 OCTOBER 2001
 UKHL 48
LORD NICHOLLS OF BIRKENHEAD
1. Detective Sergeant Raham Noor Khan is a long-serving member of the West Yorkshire constabulary. He is of Indian origin. He has lived in England for over 30 years. He joined the force in 1975, and was promoted to the rank of sergeant in 1985. Sergeant Khan is a most capable and thorough police officer, but his supervising officers perceived a weakness. Over the years he made a number of unsuccessful applications for promotion to the rank of inspector. He was told by his supervising officers that his managerial style and team leadership skills were seen to be a problem.
2. On 31 May 1996 Sergeant Khan tried again. He made another application for promotion. The overall assessment of his work was 'very good'. But Chief Inspector Sidney did not support the application. In her promotion assessment dated 5 June 1996 she said that Sergeant Khan 'has an identified weakness in the area of communication/personnel style which adversely affects his team leadership skills'. This further application by Sergeant Khan was unsuccessful.
3. Sergeant Khan was not satisfied with this outcome. He was of the view that his failure to obtain promotion was not based on a fair assessment of his merits and abilities. The real reason was his racial origin. On 1 September 1996 he made an application to an industrial tribunal. He named the chief constable and four senior officers as respondents. He claimed that his failure to obtain promotion, and the failure by these officers to support his application, constituted racial discrimination. The officers had treated him less favourably than other applicants, and had done so on grounds of race. The application was resisted.
4. In the following month, October 1996, Sergeant Khan responded to an advertisement in the 'Police Review' magazine. He applied to the Norfolk police force for an appointment to the post of inspector. The Norfolk police force asked the West Yorkshire force for a reference. They asked that Sergeant Khan's chief officer should give his observations and recommendations on Sergeant Khan's suitability for the post. They also asked for copies of Sergeant Khan's last two staff appraisals.
5. In the ordinary course such a request would have caused no difficulty. But Sergeant Khan's claim in the industrial tribunal had not yet been heard. Because of the pending claim for racial discrimination the West Yorkshire police sought internal legal advice from the force's solicitor, Mr Ajaz Hussain. Acting on that advice, on 24 October 1996 the West Yorkshire personnel officer replied:
Thus, West Yorkshire made no observations or recommendations on Sergeant Khan's application, nor were copies of his staff appraisals sent to the Norfolk police. In short, Sergeant Khan was not given a reference.
6. On 9 January 1997 Sergeant Khan amended his pending claim in the industrial tribunal. He added a claim against the West Yorkshire chief constable for victimisation, because of the refusal by the West Yorkshire police to provide him with a reference. This claim gives rise to the issue now before the House.
7. The claims for direct discrimination and victimisation were heard at the Leeds industrial tribunal over six days, from February 1997 onwards. The tribunal announced its decision on 22 April 1997. The claim for direct discrimination failed. Sergeant Khan was not treated less favourably, and even if less favourable treatment had been found, it would not have been on the grounds of race. The claim for victimisation, based on the failure to provide a reference, succeeded.
8. Meanwhile, Sergeant Khan's promotion transfer application was considered by the Norfolk police. He underwent assessment, which he passed. But he was unsuccessful at interview on 10 March 1997.
9. On 30 July 1997, after a further hearing, the industrial tribunal announced its decision on the appropriate remedy for West Yorkshire's victimisation of Sergeant Khan. The tribunal found that even if Sergeant Khan had obtained a glowing reference as distinct from no reference, because of his performance at interview he would not have succeeded. So the tribunal made no award for financial loss, but they awarded Sergeant Khan £1,500 compensation for injury to feelings.
10. An appeal by the West Yorkshire police was dismissed by the Employment Appeal Tribunal on 28 July 1998. A further appeal to the Court of Appeal  ICR 1169 was dismissed by that court, comprising Lord Woolf MR, Hale LJ and Lord Mustill, on 24 February 2000:
11. Plainly, in October 1996 West Yorkshire police found themselves in a position of considerable difficulty. The subject matter of the request for a reference for Sergeant Khan was the very matter awaiting adjudication in the industrial tribunal. The Norfolk police force were seeking the views of the West Yorkshire force on Sergeant Khan's suitability for promotion to the rank of inspector. But the views of Sergeant Khan's supervising officers on this matter, expressed as recently as June 1996, were being challenged by Sergeant Khan as racially discriminatory. Those views, he said, constituted unlawful racial discrimination. That issue remained to be decided. That being so, the chief constable could hardly be expected to repeat those selfsame views to another potential employer while that serious challenge against the authors of those views remained outstanding. Repetition of those views at that time could justifiably have been castigated as irresponsible behaviour by the Chief Constable, as well as possibly leading to a further allegation of direct racial discrimination. Such conduct by the Chief Constable could prejudice his case before the industrial tribunal. It would also mean that if the discrimination claim were to succeed, the Chief Constable would be at risk of being censured for his aggravation of the wrong done to Sergeant Khan by members of the West Yorkshire police, and the amount of compensation increased accordingly.
12. But, according to Sergeant Khan, that is the course the Chief Constable should have followed. The Chief Constable, it was submitted, should have given Sergeant Khan a reference along the lines:
Thus, according to the submissions advanced on behalf of Sergeant Khan, the Chief Constable should have repeated to the Norfolk police the very views which were being challenged in pending judicial proceedings as evidence of unlawful racial discrimination. By failing to do so, the argument runs, the Chief Constable was himself guilty of discrimination by way of victimisation.
13. This is a surprising proposition. To my mind it has only to be spelled out for it to be apparent that this cannot be right.The statutory provisions
14. I turn to the statutory provisions. The Race Relations Act 1976 provides that discrimination in certain fields is unlawful. The fields include employment, education, planning, trade unions and trade associations. Part II of the Act concerns discrimination in the employment field. Section 4 renders it unlawful to discriminate against applicants for employment or employees in the ways, or circumstances, described in the section. In the case of employees, the circumstances listed in section 4(2) are (a) in the terms of employment the employer affords the employee, or (b) in the way he affords, or refuses to afford, him access to opportunities for promotion or other benefits, or '(c) by dismissing him, or subjecting him to any other detriment.' I accept Sergeant Khan's claim that the refusal to provide a reference for him constituted a detriment within the meaning of section 4(2)(c) even though, as matters turned out, this did not cause him any financial loss. Provision of a reference is a normal feature of employment.
15. Sections 1 and 2 explain what is meant by discrimination. Discrimination means either racial discrimination, as defined in section 1, or discrimination by way of victimisation, as defined in section 2. Section 1 defines the two familiar types of racial discrimination. Direct discrimination, in subsection (1)(a), occurs if on racial grounds one person treats another less favourably than he treats or would treat other persons in circumstances relevant for the purposes of the Act. Indirect discrimination is defined in section 1(1)(b).
16. The primary object of the victimisation provisions in section 2 is to ensure that persons are not penalised or prejudiced because they have taken steps to exercise their statutory rights or are intending to do so. The structure of section 2 is similar to the structure of section 1(1)(a), but with an important difference. Racial discrimination, in section 1(1)(a), is discrimination on the grounds of race. Discrimination by victimisation, in section 2, is discrimination on one of the grounds, colloquially known as the protected acts, described in section 2. Section 2(1) defines discrimination by way of victimisation as follows:
'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-
(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.'
17. Section 2(2) provides an exception. Section 2(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. In the present case the industrial tribunal rejected a contention that Sergeant Khan's allegations of racial discrimination were not made in good faith.
18. Difficulties have arisen in the application of this definition of victimisation and the like definition in section 4 of the Sex Discrimination Act 1975. The difficulties have been most apparent in cases where the employer's impugned conduct was his response to a protected act but he was not racially or gender motivated. I must first refer briefly to the principal authorities. They are illustrative of the problems.
19. In Kirby v Manpower Services Commission  1 WLR 725 an employee at a job centre was demoted because he had disclosed confidential information about possible contraventions of the race relations legislation. The Employment Appeal Tribunal held this was not victimisation within section 2. Slynn J, delivering the judgment of the tribunal, said that the relevant question was whether the employers had treated the complainant less favourably than they would have treated someone in their employment who gave away confidential information whatever its kind: see p 732G-H. So Mr Kirby's claim failed, because the Manpower Services Commission would have treated in the same way any employee who gave away confidential information whatever its nature.
20. Aziz v Trinity Street Taxis Ltd  QB 463 was a decision of the Court of Appeal, comprising Slade, Neill and Mann LJJ. Mr Aziz was a member of a taxi drivers' association. He collected evidence with a view to pursuing a racial discrimination claim against the association, by secretly recording conversations with other members. He was expelled for doing so, and he brought a victimisation claim. Slade LJ, delivering the judgment of the court, disapproved the test applied in Kirby v Manpower Services Commission  1 WLR 725. He held that by expelling Mr Aziz the association had treated him less favourably than other members. But, to constitute victimisation, the motive which caused the alleged discriminator to treat the complainant less favourably than others must be a motive consciously connected with the race relations legislation: see  QB 463, 485. Mr Aziz's claim therefore failed, because the fact that the recordings were made by reference to the Act had not influenced the association in expelling Mr Aziz. Any member who made undisclosed recordings of conversations relating to the activities of the association in a controversial context would have been treated in the same way.
21. Next, in order of time, is the decision of the Court of Appeal in the present case. Lord Woolf MR  ICR 1169, 1177 held that Sergeant Khan had been treated less favourably by being refused a reference. It was necessary to compare the way other employees in relation to whom a reference was requested would normally be treated with the way Sergeant Khan was treated. Further, Sergeant Khan was treated less favourably by reason of having done a protected act. If it had not been for the proceedings brought under the Act a reference would have been provided.
22. Finally, in Brown v TNT Express Worldwide (UK) Ltd  ICR 182 the employee requested an afternoon off work to consult his adviser about a racial discrimination claim he had brought against his employer. The claim was due for hearing in an employment tribunal the following week. The employer refused permission, although requests for time off for personal reasons were normally granted. Despite this, the employee left work to keep his appointment, whereupon he was dismissed. Mr Brown's victimisation claim succeeded. The Court of Appeal, comprising Peter Gibson and Mantell LJJ and Sumner J, rejected the employer's contention that the appropriate comparator was an employee who had brought proceedings against the employer but not under the 1976 Act.Victimisation: (1) the relevant circumstances
23. Victimisation occurs when, in any circumstances relevant for the purposes of any provision of the Act, a person is treated less favourably than others because he has done one of the protected acts. Thus, the definition of victimisation has, essentially, three ingredients. The first is 'in any circumstances relevant for the purposes of any provision of this Act'. This is a reference to circumstances in respect of which discrimination is unlawful under the Act. For instance, under section 4(2) it is unlawful for an employer to discriminate against an employee by dismissing him. If an employee brings a victimisation claim based on his dismissal, the relevant circumstances are his dismissal by his employer. In the present case Sergeant Khan is treated as employed by the chief officer of police of West Yorkshire: see section 16 of the Act. The relevant circumstances are that, while employed, Sergeant Khan requested a reference when seeking new employment and his request was refused.
(2) Less favourable treatment
24. The second ingredient in the statutory definition calls for a comparison between the treatment afforded to the complainant in the relevant respect with the treatment he affords, or would afford, to other persons 'in those circumstances'.
25. As appears from my summary of the authorities, different views have emerged on the correct way to identify the 'others', or the comparators or control group, as they are usually known. One approach is that, to continue with my example, if an employee is dismissed the control group comprises the other employees. The complainant was less favourably treated because he was dismissed and they were not. There may be good reasons for this difference in treatment but, on this approach, that is a matter to be taken into account at the third stage when considering why the employer afforded the employee less favourable treatment. This was the approach adopted in Aziz v Trinity Street Taxis Ltd  QB 463. It was the approach adopted at all levels in the present case. Sergeant Khan was treated less favourably than other employees, because references are normally provided on request and Sergeant Khan was refused a reference. It was also the approach adopted in Brown v TNT Express Worldwide (UK) Ltd  ICR 182.
26. The other approach is that when considering whether a complainant was treated less favourably there should be factored into the comparison features which make the situation of the complainant and the control group fairly comparable. The control group should be limited to employees who have not done the protected act but whose circumstances, in the material respects, are fairly comparable. This approach was adopted by the Employment Appeal Tribunal in Kirby v Manpower Services Commission  1 WLR 725 and by the Court of Appeal in Nagarajan v London Regional Transport  IRLR 73, 76, para 13 (this point was not the subject of the subsequent appeal to your Lordships' House  1 AC 501).
27. There are arguments in favour of both approaches. On the whole I see no sufficient reason for departing from the former approach, adopted by Slade LJ in the Aziz case:  QB 463, p 483. The statute is to be regarded as calling for a simple comparison between the treatment afforded to the complainant who has done a protected act and the treatment which was or would be afforded to other employees who have not done the protected act.
28. Applying this approach, Sergeant Khan was treated less favourably than other employees. Ordinarily West Yorkshire provides references for members of the force who are seeking new employment.
(3) 'by reason that'
29. Contrary to views sometimes stated, the third ingredient ('by reason that') does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the 'operative' cause, or the 'effective' cause. Sometimes it may apply a 'but for' approach. For the reasons I sought to explain in Nagarajan v London Regional Transport  1 AC 502, 510-512, a causation exercise of this type is not required either by section 1(1)(a) or section 2. The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.
30. A situation, closely comparable to that in the present case, arose in Cornelius v University College of Swansea  IRLR 141. This was a decision of the Court of Appeal, comprising Sir John Donaldson MR, and Fox and Bingham LJJ. Like the present case, Cornelius concerned steps taken by employers to preserve their position pending the outcome of proceedings. A college declined to act on an employee's transfer request or to operate their grievance procedure while proceedings under the Sex Discrimination Act 1975, brought by the employee against the college, were still awaiting determination. Giving the only reasoned judgment, Bingham LJ said, at pp 145-146, para 33:
Two strands are discernible in this passage. One strand is that the reason why the officers of the college did not act on the complainant's two requests was the existence of the pending proceedings, as distinct from the complainant's conduct in bringing the proceedings. They wished to defer action until the proceedings were over. The second strand is that the college decisions had nothing to do with the complainant's conduct in bringing proceedings against the college under the 1975 Act. The decisions would have been the same, whatever the nature of the proceedings, if the subject matter had been allied to the content of the employee's requests.
31. Mr Hand QC submitted that Cornelius v University College of Swansea  IRLR 141 was wrongly decided. I do not agree. 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. This accords with the spirit and purpose of the Act. Moreover, the statute accommodates this approach without any straining of language. An employer who conducts himself in this way is not doing so because of the fact that the complainant has brought discrimination proceedings. He is doing so because, currently and temporarily, he needs to take steps to preserve his position in the outstanding proceedings. Protected act (a) ('by reason that the person victimised has - (a) brought proceedings against the discriminator under this Act') cannot have been intended to prejudice an employer's proper conduct of his defence, so long as he acts honestly and reasonably. Acting within this limit, he cannot be regarded as discriminating by way of victimisation against the employee who brought the proceedings.
32. Mr Hussain's evidence was that giving a reference as asked might have compromised the chief constable's handling of the case brought against him. An adjudication by the industrial tribunal in favour of Sergeant Khan would mean that the chief constable had put forward a reference which proved to be inconsistent with the outcome of the proceedings. There was the unacceptable prospect that the chief constable would give a reference upon the opinion of his senior officers which was later rejected by a judicial body. The chief constable would not have been placed in this dilemma had the industrial tribunal hearing been concluded. Meanwhile the only course of action open to the chief constable was to bring the outstanding proceedings to the attention of the Norfolk force and leave it at that.
33. Mr Hussain's evidence was also that he did not believe his advice to the chief constable would have been any different whatever the nature of the pending proceedings. One of the examples he gave was of a civilian employee, dismissed as a consequence of dishonesty, seeking a reference before the determination of a pending unfair dismissal claim. Mr Hussain's evidence was not challenged before the tribunal.
34. The approach of the industrial tribunal was, in effect, that there was no need to look further once it was seen that the West Yorkshire force ordinarily provided a reference and copies of the previous appraisals and that the only difference in this case was Sergeant Khan's commencement of proceedings under the Act: 'it is clearly the respondents' case that that, and that alone, gave them good cause to react the way that they did . . .' With all respect to the tribunal, I think there was a need to look further, for the reasons I have given. In not doing so the tribunal fell into error. I would allow this appeal.
LORD MACKAY OF CLASHFERN
35. The facts giving rise to this appeal are fully set out in the speech of my noble and learned friend Lord Nicholls of Birkenhead and I need not repeat them.
36. I turn to the statutory provisions under which this appeal rises. The Race Relations Act 1976 provides that discrimination in certain fields is unlawful. The fields include employment, education, planning, trade unions and trade associations. Part II of the Act concerns discrimination in the employment field. As a preliminary, I refer to section 16 which provides that for the purposes of Part II of the Act, the holding of the office of constable shall be treated as employment by the chief officer of police as respects any act done by him in relation to a constable. In the circumstances of this case, therefore, Sergeant Khan is treated as employed by the chief officer of police of West Yorkshire in respect of that chief officer's actions in relation to Sergeant Khan. Section 4 of the Act deals with discrimination by employers. Section 4 Discrimination against applicants and employees:
(a) in the arrangements he makes for the purpose of determining who should be offered that employment; or
(b) in the terms on which he offers him that employment; or
(c) by refusing or deliberately omitting to offer him that employment.
(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 . . ."
It will be seen that the statute provides that discrimination is unlawful in a variety of circumstances set out in this section.