Chief Constable of West Yorkshire v Khan

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD NICHOLLS OF BIRKENHEAD,LORD MACKAY OF CLASHFERN,LORD HOFFMANN,LORD HUTTON,LORD SCOTT OF FOSCOTE
Judgment Date11 Oct 2001
Neutral Citation[2001] UKHL 48

[2001] UKHL 48

HOUSE OF LORDS

Lord Nicholls of Birkenhead

Lord Mackay of Clashfern

Lord Hoffmann

Lord Hutton

Lord Scott of Foscote

Chief Constable of West Yorkshire Police
(Appellant)
and
Khan
(Respondent)
LORD NICHOLLS OF BIRKENHEAD

My Lords,

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:

'Sergeant Khan has an outstanding idustrial 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.'

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 [2000] 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:

'Sergeant Khan recently applied for internal promotion to the rank of inspector. That application was not supported, and I enclose copies of his last two appraisals. By way of observations on, and recommendations for, Sergeant Khan's suitability for the post you have advertised, the chief constable reiterates what Chief Inspector Sidney said in an assessment for promotion form dated 5 June 1996, a copy of which is enclosed. As a result of that application not being supported Sergeant Khan has commenced proceedings against the chief constable of this force alleging he has been discriminated against on the grounds of his race.'

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...

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