Factual and Procedural Background
The Appellant, who is of Indian origin, previously held various posts with Company A and Company B. After applying for the position of Travel Information Assistant at Company A, the Appellant was interviewed by Employee 1 and Employee 2 in the presence of Employee 3. All three were aware that the Appellant had earlier brought Employment Tribunal proceedings alleging racial discrimination.
The Appellant was not selected; four other candidates, including one identified in the opinion as Ms. Drage, were appointed. The Appellant claimed that this refusal amounted to unlawful victimisation contrary to sections 2(1) and 4(1)(a) of the Race Relations Act 1976.
An Employment Tribunal upheld the claim and awarded £2,500 for injury to feelings. The Respondent successfully appealed to the Employment Appeal Tribunal (EAT), which reversed the decision. The Court of Appeal dismissed the Appellant’s further appeal. The House of Lords (by majority) has now allowed the appeal, reinstating the Tribunal’s decision. Judge Browne-Wilkinson dissented on the principal issue.
Legal Issues Presented
- Whether section 2(1) of the Race Relations Act 1976 requires proof that the discriminator was consciously motivated to victimise, or whether it is sufficient that a protected act was a significant cause of the less-favourable treatment even if the influence was subconscious.
- Whether interviewing and assessing candidates constitute “arrangements … for the purpose of determining who should be offered employment” within section 4(1)(a).
- Whether the Employment Tribunal’s finding of victimisation was perverse or irrational on the evidence.
Arguments of the Parties
Appellant's Arguments
- Section 2 should be interpreted consistently with section 1(1)(a); conscious motivation is not required—what matters is whether the protected act was a significant cause of the treatment.
- Precedents such as Judge Goff’s test in R v Birmingham City Council, Ex p Equal Opportunities Commission establish that motive is irrelevant; the same approach should govern victimisation.
- Interviewing is part of the “arrangements” contemplated by section 4(1)(a); therefore the Respondent is liable for the discriminatory way in which those arrangements were operated.
- The Tribunal’s inference of subconscious influence was legitimate and supported by primary facts (e.g., an implausibly low “articulacy” score).
Respondent's Arguments
- Section 2(1) requires proof of a motive “consciously connected with the race relations legislation”; mere subconscious influence is insufficient.
- Only the person who makes the arrangements can bring the case within section 4(1)(a); the interviewers merely operated them.
- The Tribunal’s conclusions were perverse; assessment scores reflected genuine performance differences, not victimisation.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|
| R v Birmingham City Council, Ex p Equal Opportunities Commission [1989] AC 1155 |
Direct discrimination does not require proof of motive; focus is on whether treatment would have differed “but for” the protected characteristic. |
Used to support the view that section 2(1) likewise does not require conscious motivation. |
| James v Eastleigh Borough Council [1990] 2 AC 751 |
“But-for” causal test and irrelevance of subjective intention in discrimination cases. |
Analogised to show that subconscious or unintended factors can establish liability. |
| Aziz v Trinity Street Taxis Ltd [1989] QB 463 |
Earlier dictum suggesting conscious motive is needed for victimisation. |
Explained and disapproved as inconsistent with later House of Lords authority. |
| West Midlands Passenger Transport Executive v Singh [1988] IRLR 186 |
Statistical or pattern evidence may reveal subconscious stereotyping. |
Cited to illustrate how unrecognised prejudice can influence employment decisions. |
| Brennan v J H Dewhurst Ltd [1984] ICR 52 |
“Arrangements” under section 4(1)(a) include the way interviews are conducted, not merely how they are set up. |
Relied on to hold that the Respondent’s interviewing process fell within section 4(1)(a). |
| Owen Briggs v James [1982] IRLR 502 |
Protected factor need only be a substantial or effective cause, not the sole cause. |
Adopted in describing the requisite causal connection under section 2(1). |
| Coote v Granada Hospitality Ltd [1998] IRLR 656 (ECJ) |
Domestic rules governing victimisation must provide effective protection. |
Used to buttress a purposive reading favouring the Appellant. |
Court's Reasoning and Analysis
Section 2(1) — Conscious vs. Subconscious Motivation. Judges Steyn, Nicholls, Hutton and Hobhouse held that the statutory phrase “by reason that” mirrors “on racial grounds” in section 1(1)(a). In both contexts the decisive inquiry is why the claimant was treated less favourably, not whether the discriminator was consciously motivated. Human decision-making often involves unrecognised prejudices; excluding such cases would undermine the Act’s protective purpose. The majority therefore rejected the Court of Appeal’s rule that conscious motive is required. Judge Browne-Wilkinson dissented, contending that “victimisation” implies an element of conscious punishment and warning that liability without conscious awareness risks public acceptance of the legislation.
Section 4(1)(a) — Scope of “Arrangements.” Adopting the approach in Brennan, the House held that the term covers both establishing and operating selection procedures. Through section 32(1) the discriminatory acts of Employee 1 and Employee 2 were deemed those of the Respondent employer, even though a different manager designed the system. Accordingly, the Respondent unlawfully discriminated in the “arrangements” for determining who should be offered employment.
Perversity Challenge. The Court of Appeal had concluded that the Tribunal’s inference of victimisation was irrational. The House disagreed: the implausibly low “articulacy” score and the interviewers’ characterisation of the Appellant as “anti-management,” derived solely from his prior claims, provided a rational evidential basis. Assessing credibility and drawing inferences from primary facts fall squarely within the Tribunal’s remit.
Holding and Implications
HELD: The appeal is allowed; the Employment Tribunal’s judgment in favour of the Appellant is restored.
Implications: The decision clarifies that, under the Race Relations Act 1976, both direct discrimination (section 1(1)(a)) and victimisation (section 2(1)) can be established where a protected factor or act is a significant cause of the adverse treatment, whether the influence is conscious or subconscious. It also affirms that section 4(1)(a) encompasses not only the design but the operation of recruitment procedures, with employers vicariously liable for discriminatory conduct of their staff. While the ruling does not create a new statutory test, it strengthens protection against subtle or unrecognised forms of retaliation in employment.