Judgment -House of Lords - Swiggs and Others v. Nagarajan (A.P.)  continued

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    On 6 December 1992 the appellant applied to L.R.T. for the post of Travel Information Assistant. It involved answering customers' travel enquiries over the telephone. At first L.R.T. rejected the appellant's application on the ground that they were only considering applications by current L.R.T. employees. On 1 February 1993 L.R.T. informed the appellant that external applications for the post would be considered. L.R.T. short-listed the appellant for interview. On 30 March and 1 April 1993 Ms. Newland (a senior employee in the Personnel Department) and Ms. Scruton (a Departmental Manager) interviewed the short-listed candidates. They interviewed the appellant on the second day. On that day Miss Coggins (an Equal Opportunities Adviser) was also present. The two interviewers and the Equal Opportunities Adviser were aware at the time of the interview with the appellant that he had previously brought proceedings against L.R.T. and Mr. Swiggs, in which he had alleged that L.R.T. and Mr Swiggs had unlawfully discriminated against him contrary to the provisions of the Act. On 5 April 1993 L.R.T. informed the appellant that his application had been unsuccessful. In the event four of the short-listed candidates including a Ms. Drage obtained posts as Travel Information Assistants.

The Proceedings in the Tribunal

    On 7 March 1994 the appellant obtained an amendment of an originating application dated 15 January 1993 to the Tribunal. In the application as amended the appellant alleged that in April 1994 L.R.T. had refused to appoint him to the post of Travel Information Assistant because he had previously brought proceedings against L.R.T. under the Act. L.R.T.'s response was that they had rejected the appellant's application on the basis of their assessment of the appellant as a candidate, notably in the light of his performance at a scored interview. This is the dispute which, together with two other cases brought by the appellant against L.R.T., came before the Tribunal for hearing in March 1994. The tribunal heard oral evidence from the appellant, Ms. Newland, Ms. Scruton, Ms. Coggins and two other L.R.T. employees. In coming to its conclusion the Tribunal relied strongly on two factors. First, in the light of the appellant's oral evidence and bearing in mind that the appellant had previously carried out the duties of a Transport Information Assistant without complaint for four months, the Tribunal found that a score of one out of ten under the heading of articulacy given by Ms. Scruton to the appellant was "plainly ridiculous and unrealistically low." Secondly, the Tribunal pointed out that Ms. Scruton had formed the view that the appellant was "very anti-management." The Tribunal found that this was an assessment derived solely from Ms. Scruton's knowledge of the appellant's previous complaints. The tribunal drew the inference that:-

     ". . . the interviewers, particularly Ms Scruton, were consciously or sub- consciously influenced by the fact that the Applicant had previously brought Industrial Tribunal proceedings against the Respondents. It is therefore our unanimous decision that L.R.T. victimised the Applicant, contrary to sections 2 and 4(1)(a) of the 1976 Act, in that they treated the Applicant less favourably than other candidates, e.g. Mrs. Drage, who had not presented any race discrimination/ victimisation complaint against the [Respondents] whereas the Applicant had done so."

The Proceedings in the Employment Appeal Tribunal

    On appeal the E.A.T. set aside the decision of the Tribunal on two grounds. First, following a dictum in Aziz v. Trinity Street Taxis [1989] Q.B. 463, at 485D, the E.A.T. held that section 2(1) "contemplates a motive which is consciously connected with the race relations legislation." Accordingly, the E.A.T. held, that the Tribunal erred in basing their decision on a finding that the interviewers were "consciously or subconsciously influenced" by the appellant's previous complaints. Secondly, the E.A.T. ruled that the assessments made by the interviewers did not fall within section 4(1)(a) so as to be capable in principle of making L.R.T. liable for victimisation. The E.A.T. dismissed the appellant's claim. The E.A.T. did not express any view on the submissions of L.R.T. that the decision of the Tribunal was perverse.

The judgment of the Court of Appeal

    The leading judgment in the Court of Appeal was delivered by Peter Gibson L.J. with the agreement of Ward L.J. and Sir John Vinelott. First, like the E.A.T., Peter Gibson L.J. followed and applied the dictum in Aziz. He ruled that section 2(1) requires a motive which is consciously connected with the race relations legislation. On this interpretation it followed that the Tribunal erred in their application of section 2(1). Secondly, Gibson L.J. held that in view of his conclusion that section 2(1) requires conscious motivation on the part of an identifiable individual or individuals, the requirements of section 4(1)(a) could not be satisfied. Peter Gibson L.J. said: at 77; para. 22.)

     ". . . I am uncomfortably aware that such a construction narrows the scope of s. 4(1)(a). An employer who takes care that the person who might be liable to a victimisation complaint is not the person who makes the arrangements may never become liable under s. 4(1)(a)."

Gibson L.J. was persuaded that the consequences of this construction may in practice not be so serious. The rulings of the Court of Appeal were dispositive of the appeal. It was unnecessary to remit the matter to the Tribunal on the question whether L.R.T. was consciously or unconsciously influenced by the previous complaints. But Gibson L.J. observed that as the decision of the Tribunal "casts a serious imputation against the competence, if not the integrity, of the interviewers who assessed Mr. Nagarajan to be not suitable for the post," and as there had been full argument on the question whether the facts found justified the conclusion drawn by the Tribunal, he would consider what has been called the perversity issue. His conclusion was as follows (at p. 80; para. 55):

     ". . . the primary facts are simply not capable of being probative of that serious allegation. It is clear that the industrial tribunal fell into the error of substituting its own assessment, based on its own observations at the tribunal hearing, for that of the interviewers, and even of taking into account its own view of what should have been the criteria for selection. No doubt Mr Nagarajan made a good impression on the industrial tribunal, and having heard and seen him in this court I can well understand why. But that was and is irrelevant. In my judgment the facts fall far short of permitting a legitimate inference of victimisation."

It will be necessary to examine the conclusions of the Court of Appeal under all three headings.

The provisions of the Act

    For ease of reference I will set out the relevant provisions of the Act. Section 1 provides:

     "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 type of discrimination identified in Section 1(1)(a) is direct discrimination. The form of discrimination under Section 1(1)(b) focuses on the disparate impact of an ostensibly neutral requirement or condition. It is indirect discrimination. In cases falling within Section 1(1)(b) damages may not be awarded if the respondent proves that the requirement or condition was not applied with the intention of treating the claimant unfavourably on racial grounds: see section 57(2). Section 2 provides as follows:

     "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."

In customary phraseology I will refer to acts within the scope of the lettered paragraphs of section 2(1) as protected acts. Section 4(1) reads as follows:

     "(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another-   (a) in the arrangements he makes for the purpose of determining who should be offered that employment; or   (b) in the terms on which he offers him that employment; or   (c) by refusing or deliberately omitting to offer him that employment."

Section 32(1) provides for vicarious liability. It is to the following effect:

     "(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Act (except as regards offences thereunder) as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval."

The Issues

    The issues arising for determination by the House are as follows:   (1) whether on a true construction of section 2(1) of the Act a person alleged to have been victimised must establish that in treating him less favourably than he treats or would treat another, the alleged discriminator was consciously motivated or whether it is sufficient to establish that the principal or an important cause of the less favourable treatment was the fact that the victimised person had done a protected act;   (2) whether interviewing and assessing candidates for a post can amount to making arrangements for the purpose of determining who should be offered that employment within the meaning of section 4(1)(a) of the Act;   (3) whether the Court of Appeal was correct in concluding that the Tribunal's finding of victimisation was on the evidence not open to it.

The section 2(1) point

    Section 2(1) in effect provides that in order for there to be unlawful victimisation, the protected act must constitute the "reason" for the less favourable treatment. The contextual meaning of the words "by reason that" is at stake. The interpretation upheld by the Court of Appeal requires that under section 2(1) a claimant must prove that the alleged discriminator had a motive which is consciously connected with the race relations legislation. On the other hand, the interpretation put forward by the appellant merely requires that a claimant must prove that the principal or at least an important or significant cause of the less favourable treatment is the fact that the alleged discriminator has done a protected act as to causation see Owen Briggs v. James [1982] I.R.L.R. 502 (C.A.) Counsel were in agreement, and I would accept, that there is realistically no scope for any other interpretation. Certainly, it would be impossible in the context of civil liability under section 2(1), read with section 4(1), to imply a requirement of mens rea as is spelt out elsewhere in the Act in respect of criminal liability: see section 29(5).

    If the Court of Appeal's interpretation is accepted, it would follow that motive becomes an ingredient of civil liability under section 2(1). As evidence motive is always relevant. But to make it the touchstone of civil liability would be unusual. Even in criminal law motive is only an ingredient of the offence in exceptional cases: see Smith and Hogan, Criminal Law, 5th ed., p. 82. In cases of civil liability created by statute it must be comparatively rare for liability to be expressly made dependent on a finding of motive and even rarer to imply such a criterion of liability from general wording. Nonetheless the competing arguments on this important issue must be carefully examined.

    As the analysis of the effect of the two contrasting interpretations was explored in oral argument it became clear that the House was not confronted with a simple choice between a subjective and an objective interpretation. It is true that the interpretation upheld by the Court of Appeal requires proof of a subjective state of mind, viz conscious motivation. On the other hand, it would be misleading to describe the appellant's interpretation as objective. This interpretation contemplates that the discriminator had knowledge of the protected act and that such knowledge caused or influenced the discriminator to treat the victimised person less favourably than he would treat other persons. In other words, it postulates that the discriminator's knowledge of the protected act had a subjective impact on his mind. But, unlike the first interpretation, it is a broader construction inasmuch as it does not require the Tribunal to distinguish between conscious and sub-conscious motivation.

    Counsel for the appellant invited your Lordships to consider the question before the House in the light of the proper construction of section 1 (1)(a) of the Act of 1976, which deals with direct discrimination. He submitted that this provision ought to be interpreted in the same way as the similarly worded provision in section 1(1)(a) of the Sex Discrimination Act 1975 which is in material respects in identical terms. In Reg. v. Birmingham City Council, Ex parte Equal Opportunities Commission [1989] A.C. 1155 the House rejected in the context of section 1(1)(a) of the Sex Discrimination Act 1975 a test importing a requirement of intention or motive. Speaking for a unanimous House Lord Goff of Chieveley observed (at 1194) A-D)

     "There is discrimination under the statute if there is less favourable treatment on the ground of sex, in other words if the relevant girl or girls would have received the same treatment as the boys but for their sex. The intention or motive of the defendant to discriminate, though it may be relevant so far as remedies are concerned (see section 66(3) of the Act of 1975), is not a necessary condition of liability: it is perfectly possible to envisage cases where the defendant had no such motive, and yet did in fact discriminate on the ground of sex. Indeed, as Mr. Lester pointed out in the course of his argument, if the council's submission were correct it would be a good defence for an employer to show that he discriminated against women not because he intended to do so but (for example) because of customer preference, or to save money, or even to avoid controversy. In the present case, whatever may have been the intention or motive of the council, nevertheless it is because of their sex that the girls in question receive less favourable treatment than the boys, and so are the subject of discrimination under the Act of 1975."

In James v. Eastleigh Borough Council [1990] 2 A.C. 751 Lord Bridge of Harwich with whom Lord Goff of Chieveley and Lord Ackner agreed) adopted and applied the cited dictum in the Equal Opportunities Commission case. Lord Bridge of Harwich observed that "the subjective reason for the differential treatment is quite irrelevant": at p. 765. In context Lord Bridge plainly meant that the subjective reason why the council discriminated directly between men and women was immaterial as a criterion of liability. He was not saying that evidence of the alleged discriminator's state of mind is irrelevant to the critical question of causation, viz why did the complainant receive less favourable treatment? Lord Ackner stated crisply that "the council's motive for this discrimination is nothing to the point": 770A. Lord Griffiths, who dissented in the result, observed (at p. 768C):

     "I agree that the motive behind the action is not determinative although it may cast light on the question."

The circumstances of these two House of Lords' decisions were, of course, very different from the case presently before the House. But these decisions established the principle that conscious motivation is not required for direct discrimination under section 1(1)(a) of the Sex Discrimination Act 1975. By analogy this suggests strongly that it is also not required for direct discrimination under section 1(1)(a) of the Race Relations Act 1976. I would so hold. If this reasoning is correct the further question arises whether there is a good reason for adopting a different approach in cases falling within section 2(1) of the Act of 1976.

    The focus of section 1(1)(a) of the Act of 1976 is broad: it deals with the entire spectrum of direct discrimination. Section 2(1) is narrower in scope and targets cases where a specific protected act is the reason for the less favourable treatment. Nevertheless, there is no obvious explanation for not requiring proof of motive in section 1(1)(a) but requiring a conscious motivation by the discriminator to treat the employee less favourably in section 2(1). Counsel for L.R.T. sought with the aid the Oxford English Dictionary to argue that the difference in wording between "on the ground of" ("on racial grounds") in section 1(1)(a) and "by reason that" in section 2(1) indicate a legislative intention to make clear that in the latter provision a conscious motivation is required. It can readily be accepted that depending on the context the two expressions are capable of yielding different shades of meaning. But counsel put a weight on the difference of wording which it will not bear in the setting of the Act. The expressions appear in parallel provisions and are readily capable of parallel meanings. Counsel for L.R.T. also relied on the marginal note to section 2(1), viz "Discrimination by way of victimisation." At best this is a makeweight argument. In any event, section 2(1) does not as counsel suggested define "victimisation". It uses the phraseology of "the person victimised," which carries no overtones of conscious motivation, as a useful shorthand expression in a provision containing language reminiscent of section 1(1)(a). That is the origin of the marginal note. The fact that the words, "Discrimination by way of victimisation," divorced from the present context, would in ordinary speech usually import a conscious motive is of little weight. After all, it could be said that the marginal note to section 1 ("Racial discrimination") conveys the idea of conscious discrimination. Yet it is settled that section 1(1)(a) does not require proof of conscious motivation. The linguistic arguments put forward by L.R.T. are transparently weak.

    The question is whether there is any policy justification for the interpretation upheld by the Court of Appeal. The purpose of section 2(1) is clear. Its primary purpose is to give to persons victimised on account of their reliance on rights under the Act effective civil remedies, thereby also creating a culture which may deter individuals from penalising those who seek to enforce their rights under the Act. Despite valiant efforts counsel for L.R.T. was unable to point to any plausible policy reason for requiring conscious motivation under section 2(1) but not under section 1(1)(a). On the contrary, counsel for L.R.T. accepted that victimisation is as serious a mischief as direct discrimination. In these circumstances policy considerations point towards similar interpretations.

    For my part it is not the logic of symmetry that requires the two provisions to be given parallel interpretations. It is rather a pragmatic consideration. Quite sensibly in section 1(1)(a) cases the Tribunal simply has to pose the question: Why did the defendant treat the employee less favourably? They do not have to consider whether a defendant was consciously motivated in his unequal treatment of an employee. That is a straightforward way of carrying out its task in a section 1(1)(a) case. Common sense suggests that the Tribunal should also perform its functions in a section 2(1) case by asking the equally straightforward question: Did the defendant treat the employee less favourably because of his knowledge of a protected act? Given that it is unnecessary in section 1(1)(a) cases to distinguish between conscious and sub-conscious motivation, there is no sensible reason for requiring it in section 2(1) cases. Moreover, the threshold requirement laid down by the Court of Appeal in respect of section 2 (1) cases would tend to complicate the task of the Tribunal. It would render the protection of the rights guaranteed by section 2 (1) less effective: see Coote v. Granada Hospitality Limited [1998] I.R.L.R. 656, E.C.J. at p. 666; paras. 22-24.

    The Court of Appeal relied strongly on an observation by Slade L.J. in Aziz (at 485D). The passage in Aziz is in conclusionary form: it is to the effect that section 2(1) contemplates "a motive which is consciously connected with the race relations legislation." But as the headnote of Aziz makes clear the case was decided on a causative approach. In any event, the case pre-dates the decisions of the House of Lords in the Equal Opportunities Commission and Jones cases. A contemporary reviewer of Aziz argued convincingly that in the light of the decision in the House of Lords in the Equal Opportunities Commission case the observation of Slade L.J. cannot stand: Jennifer Ross, Reason, Ground, Intention, Motive and Purpose (1990) 53 M.L.R. 391. She said that the obiter dictum of Slade L.J. "wrongly emphasises the underlying motivation of the alleged discriminator rather than the immediate cause of the unfavourable treatment." I agree.

    For these reasons I would reject the submissions of L.R.T. on the section 2(1) point.

The section 4(1) point

    Relying on its interpretation of section 2(1) as requiring conscious motivation as an essential ingredient, the Court of Appeal held that on the facts of the present case section 4(1)(a) cannot be satisfied. Counsel for L.R.T. conceded that if the Court of Appeal's interpretation of section 2(1) is shown to be wrong, the Court's reasoning in respect of section 4(1) cannot stand. That must be right. But it would be unsatisfactory to dispose of the point in this way. There is a substantive issue of interpretation regarding the correct scope of section 4(1)(a). It was examined in Brennan v. J. H. Dewhurst Ltd. [1984] I.C.R. 52. The E.A.T. had to consider the meaning of section 6(1)(a) of the Sex Discrimination Act 1975, which is in the same terms as section 4(1)(a). It provides that it is unlawful for a person to discriminate against an employee "(a) in the arrangements he makes for the purpose of determining who should be offered that employment." In giving the judgment of the E.A.T. in Brennan Browne-Wilkinson J. (now Lord Browne-Wilkinson) observed that there are broadly two ways in which the words could be construed, namely (at 55G):

     ". . . The first . . . is that the discrimination has to be found in the making of the arrangements by the employer: the second is that it is enough that the effect of the arrangements made is discriminatory, whether or not the employer was guilty of any discriminatory conduct in the actual making of the arrangements."

Browne-Wilkinson J. observed that if the first and narrower interpretation is adopted "there would be a gap in the Act" and that "the plain policy of the Act would not be carried out." He concluded (at 57D):

     ". . . that the provisions of section 6(1)(a) are satisfied if the arrangements made for the purpose of determining who should be offered that employment operate so as to discriminate against a woman, even though they were not made with the purpose of so discriminating."

I am in respectful agreement with this interpretation, which is also applicable to section 4(1)(a) of the Act of 1976.

    For these reasons I would hold that the judgment of the Court of Appeal on the section 4(1) point does not accord with the correct interpretation of that provision.

The perversity point

    It remains to be considered whether the Court of Appeal correctly held that on the facts the Tribunal's decision was perverse or irrational. Given that the carefully reasoned judgment of Peter Gibson L.J. on this point is reported I need not summarise it: [1998] I.R.L.R. 73, at 79-80; paragraphs 38-56. In my view the Court of Appeal was wrong on this point. Contrary to the view of the Court of Appeal I would hold that the Tribunal was entitled to conclude on the basis of their assessment of the appellant's articulacy that Ms. Scruton came to a wholly unrealistic conclusion. Such an assessment cannot be beyond the powers of the Tribunal. No doubt it will be a matter of degree whether the Tribunal can give effect to its own view of the aptitude and skills of a particular individual. But in the present case the Tribunal considered that Ms. Scruton's assessment was "plainly ridiculous." Secondly, I would hold that on the detailed oral evidence before it the Tribunal was entitled to infer that Ms. Scruton formed the view that the appellant was anti-management solely on the basis of her prior knowledge of his complaints against L.R.T. The drawing of such inferences is a paradigm of the fact-finding functions of the Tribunal. In these circumstances it is impossible to say that the decision of the Tribunal was perverse or irrational.

Conclusion

    In the result I would hold that the Court of Appeal erred on all three points. I would allow the appeal and restore the decision of the Tribunal.

LORD HUTTON

My Lords,

    I have had the advantage of reading in draft the speeches prepared by my noble and learned friends Lord Nicholls of Birkenhead and Lord Steyn and for the reasons which they have given I too would allow this appeal.

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

    For the reasons already given by my noble and learned friends Lord Nicholls of Birkenhead and Lord Steyn I too agree that this appeal should be allowed.

 
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