Chief Constable of West Yorkshire v Khan
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE HALE,LORD MUSTILL |
| Judgment Date | 24 February 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0224-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 February 2000 |
| Docket Number | Case No: EATRF 1999/0003/A1 |
[2000] EWCA Civ J0224-3
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
The Master Of The Rolls
Lady Justice Hale and
Lord Mustill
Case No: EATRF 1999/0003/A1
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)
LORD WOOLF MR :
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
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.
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."
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.
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.
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.
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
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."
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."
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."
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.
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."
This case involves discrimination by way of victimisation under s.4(2)(b) or (c).
The Interpretation of s.2
Although it is important to read the relevant provisions of the Act as a whole, what is in...
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