Nagarajan v London Regional Transport [1999] IRLR 572 House of Lords
Victimisation under the Race Relations Act 1976 can involve both conscious or subconscious prejudice, according to the House of Lords in the case Nagarajan v London Regional Transport and Others overturning previous case law dating back to 1989 (Aziz v Trinity Street Taxis Ltd).
Victimisation occurs where an applicant is treated less favourably for having raised the issue of race or sex discrimination - whether in formal tribunal proceedings or internally - and includes witnesses and representatives in a discrimination claim.
Mr Nagarajan had brought a number of race cases against his employer London Regional Transport over the years, largely unsuccessfully. He applied for a vacant post within LRT, and failed at interview. He had performed the duties of the job for several months previously without any complaints. One of the interview panel scored him one out of ten for articulacy and noted that he was "very anti-management", even though the sole source of such a conclusion must have been the panel member's previous knowledge of his discrimination complaints. The Tribunal found that Mr Nagarajan had been victimised "consciously or subconsciously" and awarded compensation of £2,500.
The employers were successful at the Employment Appeal Tribunal and the Court of Appeal, on the basis that victimisation could only ever be conscious. Victimisation, by definition, involves a subjective analysis of the mind of the person in question. "I do not understand how one can victimise someone "subconsciously", the Court had said.
With these two decisions of the Employment Appeal Tribunal and the Court of Appeal it was much harder for victimisation cases to succeed. However, that worrying state of affairs has now been conclusively overturned by the House of Lords. In a majority decision, the possibility of subconscious influence amounting to victimisation is confirmed. Arguing that the victimisation provisions of the Race Relations Act should be interpreted consistently with the section 1 direct discrimination provisions, Lord Nicholls points to the fact that what matters in discrimination cases is not the reason for the decision made. Motive has long been recognised as irrelevant, and therefore whether the decision was conscious or subconscious is not the point. "Members of racial groups need protection from conduct driven by unrecognised prejudice as much as from conscious and deliberate discrimination". Therefore whether the panel member who scored Mr Nagarajan for articulacy was influenced consciously or not mattered little: the fact is that they were significantly influenced and the score was "ridiculous".
Accordingly, the Tribunal were entitled to draw the inference that she had been significantly influenced by his previous race claims.
The Lords also deal robustly with another point that had influenced the Court of Appeal.
The Race Relations Act requires that the discrimination take place in the context of a number of specified situations, including, for example, the "arrangements" made in determining who should be offered a job. What if the person who makes the actual arrangements for offering the job, is not the same person as the one who victimises?
This makes no difference, concludes the Lords. It is the employer who has overall responsibility in this context, and both the person who makes the arrangements, and the person who victimises, are part of the employer's organisation. The rare exceptions when employers are not vicariously liable for the actions of their employees did not apply so, LRT was liable.
This House of Lords judgment marks a welcome conclusion to the debate as to what constitutes victimisation. The previous cases had erected an extra barrier for applicants which was not supported by the wording of the Act. This case represents a turning point and will give greater protection for those who are victimised. But it also adds strength to the primary forms of discrimination as a deterrent effect to employers and by giving greater confidence to those seeking to raise the issue of discrimination in the workplace.
Another side effect of the Nagarajan case will be to strengthen the anti-victimisation provisions in other areas of employment law. The case will extend to the meaning of victimisation in the Sex Discrimination Act and almost certainly to all other forms of victimisation such as those introduced by the Employment Relations Act protecting campaigners for trade union recognition.