Nagarajan v London Regional Transport

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD BROWNE-WILKINSON,LORD NICHOLLS OF BIRKENHEAD,LORD STEYN,LORD HUTTON,LORD HOBHOUSE OF WOODBOROUGH
Judgment Date15 Jul 1999
Judgment citation (vLex)[1999] UKHL J0715-3

[1999] UKHL J0715-3

HOUSE OF LORDS

Lord Browne-Wilkinson

Lord Nicholls

Lord Steyn

Lord Hutton

Lord Hobhouse of Wood-borough

Swiggs

And Others

(Respondents)
and
Nagarajan (A.P.)
(Appellant)
LORD BROWNE-WILKINSON

My Lords,

1

I have the misfortune to differ from the rest of your Lordships as to the proper disposal of this appeal. As will appear, the point on which I differ from your Lordships is a narrow one and, in the ordinary case, I would not trouble your Lordships with a dissenting judgment. But your Lordships have also expressed views on section 1 of the Act which may be of wider importance and it is to those remarks which this short opinion is primarily directed.

2

The facts are fully set out by my noble and learned friend Lord Steyn whose account I gratefully adopt. Shortly stated, the appellant has over the years pursued claims in the Industrial Tribunal (now the Employment Tribunal) against London Regional Transport (L.R.T.) and London Underground. In the present case the post of Travel Information Assistant was advertised by L.R.T. The appellant applied and was interviewed. He was not appointed to the job. He alleges that he has been discriminated against by way of victimisation contrary to section 4(1)(a) and 2 of the Race Relations Act 1976. Section 4(1)(a) makes it "unlawful" for a person "to discriminate against another" in the arrangements he makes for the purpose of determining who should be offered employment. Section 2(1) provides as follows:

"2(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."

3

The Industrial Tribunal held in favour of the applicant that those who interviewed him were aware that he had previously brought Industrial Tribunal proceedings against L.R.T. under the Act and were "consciously or subconsciously" influenced by that fact. The question is whether it is enough for the claimant to show that the interviewers were "subconsciously" influenced (as the Industrial Tribunal and the majority of your Lordships consider) or whether (as the Employment Appeal Tribunal and Court of Appeal considered) it is necessary to show that the alleged discriminator was conscious of such influence if it is to constitute discrimination against victims within section 2.

4

The construction of section 2

5

Approaching the matter first without regard to authority, as a simple matter of construction I would have no doubt that under section 2 the relevant question is whether the reason why the discriminator treats the person victimised less favourably is that the latter has done one of those things specified in paragraphs (a)-(d) ("protected acts"). This is a wholly subjective question directed specifically to the mental state of the alleged discriminator: why did he treat the claimant less favourably? Looking at the language of section 2(1) the subject of the sentence is the alleged discriminator. It is he who must treat the person victimised less favourably. It is he who must treat the victim less favourably "by reason that" the victim has done protected acts. There is no authority on the construction of section 2(1) which leads to a contrary conclusion and I would therefore give the section its obvious meaning, viz., it must be shown that the conscious reason why the defendant has selectively imposed discriminatory adverse treatment on the applicant is that he wishes, knowingly, to punish the claimant as a victim. I do not understand how one can victimise someone "subconsciously".

6

However, Lord Lester of Herne Hill, for the appellant, submitted that section 2(1) must not be construed in isolation. In particular it must be construed so as to accord with section 1 of the Act. I agree. He then submitted that the decisions of your Lordships' House in Reg. v. Birmingham City Council, Ex parte Equal Opportunities Commission [1989] A.C. 1155 and James v. Eastleigh Borough Council [1990] 2 A.C. 751 decided that, in relation to section 1, the correct test was whether "but for" the race of the claimant he would have been treated less favourably. Similarly under section 1 of the Sex Discrimination Act 1975 the question is whether "but for" the gender of the claimant she would have been treated equally. He further submitted that under section 1 of both Acts it has been decided that the intention or motive of the defendant is irrelevant in deciding whether he treated the claimant less favourably on grounds of race or gender. He submitted that for the purposes of section 1(1)(a) of both Acts it has been decided that subconscious prejudices or motivations which cause the discriminator to do the discriminating act can be taken into account but are not determinative.

7

Section 1 of the Act of 1976

8

Under section 1(1)(a) the statutory question posed is "on what grounds" did the discriminator treat the claimant less favourably: was it race or was it some other innocent reason? See the analysis by Lord Lowry in his dissenting speech in the James case at p. 775 et seq. which so far as I am aware has never been effectively answered. The mere fact that the claimant has been treated unfairly and that he comes from an ethnic minority does not constitute racial discrimination: it has to be shown that it was the claimant's race which was the reason why the discriminator discriminated. The whole question lies within the mind of the alleged discriminator. Thus the question is essentially a subjective one: why did the alleged discriminator act as he did?

9

My Lords it is this very clarity of the statutory words which require the court to determine the reason why the alleged discriminator treated the claimant less favourably that makes it difficult to understand why in some of the authorities and in your Lordships' judgments the question is often posed, not subjectively, but objectively: "was a substantial cause of less favourable treatment the race or sex of the claimant or (for section 2 cases) the fact that he had done a protected act?" Thus in the James case at pp. 764D and 765D Lord Bridge of Harwich appears expressly to hold that the words in section 1(1)(a) "on the grounds of her sex/race" do not give rise to a subjective test. This led him at p. 765D to pose the question "would the plaintiff, a man of 61, have received the same treatment as his wife but for his sex?" To this he gave the answer yes: see p. 765G. The only other major speech in the James case is that of Lord Goff of Chieveley. He said this at p. 774B-D:

"However, in the majority of cases, I doubt if it is necessary to focus upon the intention or motive of the defendant in this way. This is because, as I see it, cases of direct discrimination under section 1(1)(a) can be considered by asking the simple question: would the complainant have received the same treatment from the defendant but for his or her sex? This simple test possesses the double virtue that, on the one hand, it embraces both the case where the treatment derives from the application of a gender-based criterion, and the case where it derives from the selection of the complainant because of his or her sex; and on the other hand it avoids, in most cases at least, complicated questions relating to concepts such as intention, motive, reason or purpose, and the danger of confusion arising from the misuse of those elusive terms." (Emphasis added)

10

It is clear that in this passage Lord Goff is to an extent adopting the "but for" test urged by Lord Lester both in the present case and in the James case. It is to be noted that Lord Goff picks his words carefully. He finds the "but for" test a useful practical approach to determining the discriminator's reason "in the majority of cases". Moreover, it is to be noted that his formulation is purely subjective: the question is whether the claimant would have received the same treatment "from the defendant". The "but for" test is not a rule of law but a rule of convenience depending on the circumstances of the case. I find it difficult in these circumstances to know exactly what was decided by the James case. Although it is binding on your Lordships I do not regard the question under section 1 as finally determined: it may require to be revisited in the future.

11

Motive, intention and reason

12

I accept that to treat both section 1(1)(a) and section 2(1) as requiring the court to determine the reason activating the defendant means that the court is led into the minefield of investigating an individual's mental processes. The ambiguities inherent in words such as intention, motive or reason are well known and normally the court will seek to avoid getting into these difficulties. My noble and learned friend Lord Steyn in his speech relies on the fact that in English law civil liability is not usually made dependent upon the motive with which an action is done. I do not enter into the question whether what is under discussion...

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