Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830

Sergeant Khan, a police officer of Indian origin, had made a number of unsuccessful applications for promotion to the rank of Inspector. As a result he brought direct race discrimination proceedings against the Chief Constable of West Yorkshire Police.

Before his tribunal case was heard Sergeant Khan applied for an inspector's post in the Norfolk Police. They asked the Chief Constable for his opinion about Sergeant Khan's suitability. West Yorkshire replied that: 'Sergeant Khan has an outstanding industrial tribunal application against the Chief Constable for failing to support his application for promotion. In light of that, the Chief Constable is unable to comment any further for fear of prejudicing his own case before the tribunal.' A request for Sergeant Khan's most recent staff appraisals was also refused.

As a result, Sergeant Khan added a complaint of victimisation to his existing race discrimination complaint. The tribunal dismissed the complaint of discrimination in respect of the promotion but upheld the complaint that Sergeant Khan had been unlawfully victimised.

Essentially victimisation is where a person is treated less favourably by reason of having raised the issue of race discrimination - whether having brought discrimination proceedings, made an allegation of discrimination or performed any other so-called protected act. The full list of circumstances covered is set out in Section 2(1) Race Relations Act 1977.

Both the Employment Appeal Tribunal and the Court of Appeal dismissed the Chief Constable's appeal. The Court of Appeal held that the treatment afforded to the complainant should be compared with the treatment afforded to other employees who have not done the protected act. In this case, references were normally provided and if it had not been for the proceedings brought under the Act, a reference would have been provided to the applicant.

The Chief Constable successfully appealed to the House of Lords. The Lords identified two main issues:

  1. Who was the correct comparator in determining whether Sergeant Khan was treated less favourably? The wider (pro-employee) approach is simply to compare the employee who has made complaints to other employees who have not. The second and narrower approach, argued for by the Chief Constable, was that there needs to be other, more similar and closely comparable, factors also taken into account - for example if the circumstances involved a complaint to a tribunal under the RRA then a comparator may be someone who had made a complaint under some other legislation. The Lords came down in favour of the wider approach that is a comparison between someone who had made a complaint and someone who had not.
  2. Whether the reason for 'the less favourable treatment' (the refusal of the reference) was that Sergeant Khan had done a protected act by bringing proceedings under the RRA against the Chief Constable. The Court of Appeal had ruled that if a reference would have been given 'but for' the discrimination proceedings then it must follow that it was the fact of the proceedings that was the reason for the less favourable treatment.

They said that there was no need to look further once it was established that the Chief Constable would ordinarily provide a reference and that the one difference in this case was that sergeant Khan had commenced proceedings.

The Lords disagreed with the Court if Appeal and said that the 'but for' test imposed too low a threshold on the complainant. They ruled that Sergeant Khan had not been victimised because he had done a protected act. However all three Law Lords used different approaches to come to this conclusion.

Lord Nicholls says that the test is what was 'the reason' the alleged discriminator acted as he did. In this case the Chief Constable did not provide the reference because he was trying to protect his position in the discrimination proceedings rather than because Sergeant Khan had done a protected act.

Lord Hoffmann sees it as a question of causation: was the fact that he brought proceedings 'a reason' why he was treated less favourably. The correct test was whether the reference was refused because of the 'bringing' of the proceedings rather than the 'existence' of the proceedings. If the reference would still have been refused after the discrimination proceedings had been concluded, whatever the result, then it follows that the reason for the refusal while litigation was on-going was the existence of the proceedings and not the fact that Sergeant Khan had started the discrimination proceedings.

Lord Scott suggests that it is 'the real reason' that must be identified. In this case the real reason was because the Chief Constable did not want to compromise his position and not because Sergeant Khan had started the discrimination proceedings.

Whilst the House of Lords came to the same conclusion it is difficult to see a consistent test in their reasons for the decision. The 'but for' test has been the standard approach to direct discrimination cases since James v Eastleigh Borough Council [1990] IRLR 288 HL. Let's hope that the implications of Khan will not extend beyond the narrow facts of the particular case.