|Judgments - Chief Constable of West Yorkshire Police v. Khan
37. It was said that the type of discrimination involved in the present appeal was under section 4(2)(c) subjecting Sergeant Khan to any other detriment. Detriment has been widely defined: see De Souza v Automobile Association  ICR 514. I think it would also be possible to place this case under section 4(2)(b) in relation to access to other benefits, the benefit in the present instance being that of a reference when an employee applies to another prospective employer. We were informed that there was no specific mention of references in the relevant statutes including the employment statutes but I think the word "benefits" would be wide enough to include them.
38. So far then Sergeant Khan's case rests on the assertion that the Chief Constable of the West Yorkshire Police has dealt with him unlawfully in respect that being a person employed by him at an establishment in Great Britain, the chief officer discriminated against him in the way he refused to afford him access to the benefit of references or by subjecting him to any other detriment. We now have to ascertain what is meant by discrimination in the context of section 4(2) and for that the relevant provision is section 2 which provides:
"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-
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. The industrial tribunal in the present case held that subsection (2) did not apply to the proceedings raised by Sergeant Khan and accordingly subsection (1) does apply to him. I refer, as my noble and learned friend has done, to the matters referred to in paragraphs (a), (b) and (d) as the protected acts.
39. In order that discrimination by way of victimisation under section 2 should occur it is necessary that there should be "circumstances relevant for purposes of any provision of this Act". Secondly, it is necessary that the discriminator treats the person victimised less favourably than in those circumstances he treats or would treat other persons; and, thirdly, it is necessary that he does so by reason that the person victimised has done one of the protected acts. In my view, in order to ascertain who are the "other persons" with whom comparison should be made in any particular case one must identify the circumstances relevant for the purposes of any provision of the Act in which the discrimination is said to have occurred and then to consider how other persons in those circumstances have been treated.
40. Obviously in the present case the circumstances include the fact that Sergeant Khan is to be treated as employed by the chief officer of the West Yorkshire police at an establishment in Great Britain. Assuming, as I have done, that the request for a reference is an access to a benefit I think it can be said that the circumstances relevant for the purposes of this act include also in this case the circumstance of Sergeant Khan's application for a reference. If the case is treated as a subjection of Sergeant Khan to any other detriment I do not see reference to any other circumstance than that he is employed at an establishment in Great Britain. If one now goes back to section 2, in my view the circumstances relevant for the purposes of any provision of this Act which are at issue in this case is the simple fact that Sergeant Khan is treated for the purposes of this Act as employed by the chief officer of the West Yorkshire police at an establishment in Great Britain and that he is so employed and has made an application for the benefit of a reference.
41. On this basis the other persons with whose treatment the treatment of Sergeant Khan must be compared are persons employed at the same establishment in Great Britain as Sergeant Khan, namely, in the West Yorkshire police, and who have applied for a reference when seeking employment with another employer.
42. The refusal of a reference to Sergeant Khan when it is common ground that generally a reference would be given is in my view sufficient to demonstrate that in the circumstances relevant for the purposes of section 4 of the Act, Sergeant Khan has been treated less favourably than other persons.
43. The third requirement for discrimination under section 2 is that it has occurred by reason that the person victimised has done one of the protected acts. In this case, therefore, the question is was Sergeant Khan refused a reference by reason that he had brought proceedings against the chief officer of police under this Act? It is clear that Sergeant Khan had brought proceedings against the chief officer of police under this Act but the requirement is that the less favourable treatment must be accorded by reason that he has done so.
44. The advice of the solicitor advising the chief officer was laid fully before the industrial tribunal and no challenge was made of it. It was to the effect that because there was pending litigation raising issues which were relevant to the reference it would be inappropriate for the chief officer to give a reference. In my opinion in these circumstances the chief officer having acted in accordance with that perfectly understandable advice did not treat Sergeant Khan less favourably than he would have done others applying for a reference by reason that Sergeant Khan had brought proceedings under the Act.
45. It is clear that if the proceedings had been terminated when the request for a reference was made the obstacle to giving it would have been removed and I have no doubt that the chief officer has clearly established that in the present case he did not refuse a reference by reason that Sergeant Khan had raised proceedings against him under the Act.
46. In my opinion this analysis leads to a workable approach to the statutory provisions and is in accordance with the purpose of the statute as described by Bingham LJ in Cornelius v University College of Swansea  IRLR 141, 145, para 31. For these reasons I agree that the appeal should be allowed.
47. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Nicholls of Birkenhead with which I agree.
48. The appeal raised three points. First, when section 2(1) of the 1976 Act speaks of the person victimised being treated "less favourably than in those circumstances he treats or would treat other persons", who are these hypothetical other people and what are the hypothetical circumstances? Mr Khan says that one should suppose a police officer like himself who had asked for a reference and appraisals but had not done "the protected act", i.e. brought proceedings under the Act. Such a person would have not have been denied a reference. The West Yorkshire police say that in addition to supposing that he had not brought proceedings under the Act, one should also suppose that he had brought proceedings on some other ground, e.g. for libel or constructive dismissal. Such a person would also not have been given a reference. I agree with my noble and learned friend Lord Nicholls of Birkenhead, the Employment Appeal Tribunal and the Court of Appeal that the first view is correct.
49. The purpose of the statute is that a person should not be victimised because he has done the protected act. It seems to me no answer to say that he would equally have been victimised if he had done some other act and that doing such an act should therefore be attributed to the hypothetical "other persons" with whom the person victimised is being compared. Otherwise the employer could escape liability by showing that his regular practice was to victimise anyone who did a class of acts which included but was not confined to the protected act.
50. The requirement that doing the protected act must have been the reason for the less favourable treatment is adequate to safeguard an employer who acted for a different and legitimate reason. On the other hand, it will rightly provide no defence for an employer who can only say that although his reason was indeed the doing of the protected act, it formed part of a larger class of acts to which he would have responded in the same way.
51. The second question is whether Mr Khan was actually treated less favourably than someone who had not brought proceedings would have been. The chief constable says that it is not enough that he was treated differently. His treatment must be worse. This is an objective question and if one looks at the matter objectively, he was better off without a reference. If he had been given one, it would have contained an express statement that his application for promotion was not supported. In that case, the Norfolk constabulary would not even have asked him to an assessment. As it was, he at least got through to interview.
52. This was not a point taken in the industrial tribunal, the Employment Appeal Tribunal or the Court of Appeal. It seems to have surfaced as a result of remarks made at the hearing of the application for leave to appeal before the Appeal Committee. It is attractive but I think that upon analysis it is wrong. There is a distinction between the question of whether treatment is less favourable and the question of whether it has damaging consequences. Mr Khan, with full knowledge of what Chief Inspector Sidney's assessment contained, wanted it to be sent to Norfolk. His request was refused when a similar request by someone else would have been granted. That seems to me to be less favourable treatment which the tribunal found caused injury to Mr Khan's feelings. The fact that he was actually invited to an assessment showed that the less favourable treatment caused him no economic loss but does not prevent it from having been less favourable.
53. The point is allied to the question of whether, assuming that there was discrimination under section 2(1), Mr Khan was subjected to "detriment" within the meaning of section 4(2)(c). Being subjected to detriment (or being treated in one of the other ways mentioned in section 4(2)) is an element in the statutory cause of action additional to being treated "less favourably" which forms part of the definition of discrimination. A person may be treated less favourably and yet suffer no detriment. But, bearing in mind that the employment tribunal has jurisdiction to award compensation to injury to feelings, the courts have given the term "detriment" a wide meaning. In Ministry of Defence v Jeremiah  QB 87, 104 Brightman LJ said that "a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment." Mr Khan plainly did take the view, at any rate in October 1996, that not having his assessment forwarded was to his detriment and I do not think that, in his state of knowledge at the time, he can be said to have been unreasonable.
54. That brings me to the third and most difficult question, which is whether Mr Khan was treated less favourably "by reason that" he had "brought proceedings...under this Act" (section 2(1)(a)). This raises a question of causation: was the fact that he brought proceedings a reason why the West Yorkshire police treated him less favourably.
55. Of course in one sense the fact that he had brought proceedings was a cause of his being treated less favourably. If he had not brought proceedings, he would have been given a reference. In some contexts, a causal link of this kind will be enough. For example, in R v Birmingham City Council, Ex p Equal Opportunities Commission  AC 1115 the question was whether the council had treated a girl less favourably "on the ground of her sex", contrary to section 1 of the Sex Discrimination Act 1975. The House of Lords decided that her sex did not have to be the reason why the Council had decided to treat her in that way. It was sufficient that she would have been treated differently if she had been a boy: see also James v Eastleigh Borough Council  2 AC 751.
56. There are parallels between the purposes of sections 1 and 2 of the Race Relations Act 1976 (and between the corresponding sections 1 and 4 of the Sex Discrimination Act 1975): see Nagarajan v London Regional Transport  1 AC 501. But the causal questions which they raise are not identical. As Mr Hand QC, who appeared for Mr Khan, readily accepted, one cannot simply say that Mr Khan would not have been treated less favourably if he had not brought proceedings. It does not follow that his bringing proceedings was a reason (conscious or subconscious) why he was treated less favourably. In Nagarajan's case Lord Steyn said, at pp 519-520, that section 2:
57. This is not at all the same thing as saying that but for the protected act, he would not have been treated in the way he was. The difference emerges very clearly from the judgment of Bingham LJ in Cornelius v University College of Swansea  IRLR 141. Mrs Cornelius was an employee of the university who made a complaint of sex discrimination to an industrial tribunal. While the proceedings were pending she applied for a transfer to another post and to be heard under the university's grievance procedure. A senior assistant registrar replied that no action could be taken on the transfer until the outcome of the proceedings was known. The registrar himself wrote to say that a grievance hearing was inappropriate while the industrial tribunal proceedings were pending. Mrs Cornelius claimed that this was victimisation. She said that the registrar's letter indicated that but for her commencement of proceedings, her application for a transfer and a grievance hearing would have been considered in the normal way.
58. Bingham LJ rejected the complaint for the following reasons, at p 145, para 33:
59. This decision, with which I respectfully agree, shows 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. But the treatment need not be, consciously or unconsciously, a response to the commencement of proceedings. It may simply be a reasonable response to the need to protect the employer's interests as a party to the litigation. It is true that an employee who had not commenced proceedings would not have been treated in the same way. Under section 1, one would have needed to go no further. Under section 2, however, the commencement of proceedings must be a reason for the treatment and in Cornelius's case it was not.
60. 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. If the answer is no, it will usually follow that the reason for refusal was the existence of the proceedings and not the fact that the employee had commenced them. On the other hand, if the fact that the employee had commenced proceedings under the Act was a real reason why he received less favourable treatment, it is no answer that the employer would have behaved in the same way to an employee who had done some non-protected act, such as commencing proceedings otherwise than under the Act.
61. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Nicholls of Birkenhead and Lord Hoffman. I agree with them and for the reasons which they give I, too, would allow this appeal.
LORD SCOTT OF FOSCOTE
62. The relevant facts and the history of the proceedings in this case have been set out in the opinions of my noble and learned friends, Lord Nicholls of Birkenhead and Lord Hoffmann. I need not repeat them save to the extent necessary to explain the conclusions I have reached.
63. The problem is as to the proper application to the facts of the case of section 2(1) of the Race Relations Act 1976. Section 2(1) provides, so far as is relevant to this case:
64. Sergeant Khan, an officer in the West Yorkshire police, had applied for promotion to the rank of inspector. But a staff appraisal made by a senior officer, while in some respects complimentary, had referred to perceived weaknesses in his team leadership skills and he was informed that his application for promotion would not be supported by his supervising officers. Sergeant Khan then made an application under the 1976 Act alleging that his chief constable had discriminated against him on the grounds of his race in failing to support him for promotion.
65. While Sergeant Khan's discrimination claim was still pending, he made an application to the Norfolk police force for appointment as an inspector in that force. The Norfolk police force requested a reference from the West Yorkshire police force. Sergeant Khan's personnel officer replied to the request in these terms:
66. Sergeant Khan then added a section 2(1) victimisation claim to his race discrimination claim.
67. The two claims were heard together. The race discrimination claim failed; the victimisation claim succeeded.
68. Sergeant Khan's application to the Norfolk police was not, in the event, adversely affected by the West Yorkshire police force's refusal to give him a reference. Indeed, the reverse was the case. Although his application was not in the end successful, it progressed further than it would have done had he received a reference on the same lines as the appraisals which had led to the failure of his application for promotion to inspector in his own police force.
69. In these circumstances Sergeant Khan's section 2(1) victimisation claim raises the following issues:
(1) In considering whether Sergeant Khan was treated by
West Yorkshire police force less favourably than other persons, with whom is Sergeant Khan to be compared?
(2) What is the test of whether the treatment complained of was less favourable than the treatment that would have been accorded to the comparators?
(3) What is the test to determine whether the complainant has been treated in the manner complained of "by reason that" he has done the protected act?
(1) The comparators
70. In the submissions to your Lordships various comparators were suggested.
71. One suggestion was that the treatment accorded to Sergeant Khan should be compared to the treatment that would have been accorded to other officers of the West Yorkshire police who had brought discrimination proceedings against their employers. This cannot be right. It would enable an employer to justify victimising an employee who had brought proceedings under the Act by asserting that he would similarly victimise every employee who brought proceedings under the Act.
72. Another suggestion was that the treatment accorded to Sergeant Khan should be compared to the treatment that would have been accorded to other officers who had brought employment-related proceedings, but not race discrimination proceedings, against their employer. This cannot be right either. It would enable employers to victimise employees who brought race discrimination proceedings against them provided they, the employers, were prepared similarly to victimise any employee who had the temerity to sue them for anything.
73. A third suggestion was that the treatment accorded to 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. This, in my opinion, is the correct comparator. 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.
74. In Aziz v Trinity Street Taxis Ltd  QB 463 Slade LJ said, at p 483:
I agree. I would add that, save for the fact that the complainant has done a protected act, the relevant circumstances include all the circumstances in which the alleged discriminator treated the complainant in the manner complained of. The Court of Appeal in the present case came, I think, to much the same conclusion: see  ICR 1169, 1180, per Lord Woolf MR.
(2) Was Sergeant Khan treated "less favourably"?
75. He was certainly treated differently. If it had not been for the pending race discrimination proceedings the request by the Norfolk Police Force for a reference would have been complied with. But did the chief constable's refusal to provide the reference constitute treatment that was less favourable to Sergeant Khan than if the reference had been provided? The reference would, after all, have been seriously damaging to Sergeant Khan's prospects of obtaining the appointment that he had applied for.
76. It cannot, in my opinion, be enough for section 2(1) purposes simply to show that the complainant has been treated differently. There must also be a quality in the treatment that enables the complainant reasonably to complain about it. I do not think, however, that it is appropriate to pursue the treatment and its consequences down to an end result in order to try and demonstrate that the complainant is, in the end, better off, or at least no worse off, than he would have been if he had not been treated differently. I think it suffices if the complainant can reasonably say that he would have preferred not to have been treated differently. In the present case Sergeant Khan wanted the reference to be given. He knew it would be likely to contain adverse remarks that would be damaging to the prospects of his application. But he wanted a reference to be given. And in normal circumstances, it would have been given. In these circumstances he was, in my opinion, entitled to regard himself as having been treated "less favourably" in that the reference was withheld.
(3) The causation point
77. Was the reference withheld "by reason that" Sergeant Khan had brought the race discrimination proceedings? In a strict causative sense it was. If the proceedings had not been brought the reference would have been given. The proceedings were a causa sine qua non. But the language used in section 2(1) is not the language of strict causation. The words "by reason that" suggest, to my mind, that it is the real reason, the core reason, the causa causans, the motive, for the treatment complained of that must be identified.
78. In Cornelius v University College of Swansea  IRLR 141 Bingham LJ put his judicial finger on the critical distinction for section 2(1) purposes between the bringing of discrimination proceedings and the existence of the proceedings. He said, at p 145, para 33:
79. In the present case, it is clear that the refusal to provide the reference was attributable to the existence of the race discrimination proceedings that Sergeant Khan had brought. But was the reason for the refusal that Sergeant Khan had brought the proceedings? The answer to this question is, in my opinion, apparent from the evidence given by Mr Hussain, force solicitor for West Yorkshire police, in his written statement. He explained that he had advised that "the provision of a reference might compromise the chief constable and other respondents' handling of the case against them as brought by the applicant" and said:
He said also:
Mr Hussain was not cross-examined on this evidence which makes clear that a request for a reference for Sergeant Khan would have been complied with once the litigation had concluded. The evidence establishes that the reason for the refusal of the reference was not that Sergeant Khan had brought the proceedings but that the proceedings were still on foot and might be prejudiced by the content of the reference if it were given.