Judgments - Chief Constable of West Yorkshire Police v. Khan

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    80. In the Court of Appeal [2000] ICR 1169 Lord Woolf MR referred, at pp 1178-1179, to Bingham LJ's conclusion in Cornelius's case [1987] IRLR 141 that the complainant had failed to show that the college's treatment of her was because she had brought proceedings against the college under the 1975 Act, but did not go on to apply the same reasoning to the present case. In my respectful opinion this was an error. I would allow the appeal in the present case on the ground that Sergeant Khan has failed to show that the reason for the chief constable's refusal to comply with the Norfolk police force's request for a reference about him was that he had brought the race discrimination claim. The reason, on the evidence, was that the proceedings were pending. This conclusion, in my opinion, makes sense of the legislation and its purpose. It does not stand in the way of the success of a section 2(1) victimisation claim where, on the evidence, the conclusion is justified that the employer's reason for singling out the complainant for less favourable treatment is that the complainant has brought the proceedings. It does enable justice to be done to an employer who, as in the present case, would otherwise be placed by the pendency of the proceedings in an unacceptable Morton's fork, forced to choose between conduct which risked a section 2(1) complaint and conduct which risked an aggravated damages award if the race discrimination claim should succeed.

    81. Like my noble and learned friends whose opinions I have read and with which I agree, I would allow the appeal and set aside the award of damages to Sergeant Khan.


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Prepared 10 October 2001