Chief Constable of West Yorkshire Police v Khan (House of Lords)

In brief

The House of Lords unanimously held that a police force did not victimise Sergeant Khan by refusing him a reference while his race discrimination claim against it was pending; the claimant lost, and the award in his favour was set aside. Although the facts are sympathetic to the claimant, this is an authority favourable to employers. The employment tribunal, EAT and Court of Appeal had all found for Sgt Khan and awarded damages; the House reversed and set the award aside ([81], Lord Scott). Part-way through a race discrimination claim against his own force, Sgt Khan was refused a reference sought by another force 'for fear of prejudicing' the pending tribunal case. The claim was for victimisation under RRA 1976 s.2 and s.4(2)(c). The core holding is that 'by reason that' is not a causation test. Lord Nicholls [29]: 'the third ingredient ... does not raise a question of causation ... Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.' Lord Hoffmann [54]-[57]: the proceedings were 'in one sense' a cause, but that is not enough: 'this is not at all the same thing as saying that but for the protected act, he would not have been treated in the way he was.' Lord Scott [77]: 'the language used in section 2(1) is not the language of strict causation ... it is the real reason, the core reason, the causa causans ... that must be identified' (as against causa sine qua non). The test is the real, subjective reason why, conscious or unconscious, not 'but for'. On the facts, the refusal was attributable to the existence of the proceedings, not to Sgt Khan having brought them. An employer acting honestly and reasonably to protect a legitimate litigation interest does not thereby victimise ([31], [34]). Four of the five Law Lords gave independent reasoned speeches reaching the result by materially different routes, so the case does not have a single ratio. Decided 11 October 2001.

Key provisions

• [29] (Lord Nicholls) — 'Reason why', not causation : 'the third ingredient ... does not raise a question of causation ... Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.' — dual — Khan is authority for the opposite of 'the protected act must be a cause'. Use it to rebut any 'but for' framing of victimisation.
• [31], [34] (Lord Nicholls) — The honest-and-reasonable litigation-protection carve-out : An employer honestly and reasonably protecting its position in pending proceedings is not victimising; reacting to the existence of proceedings differs from reacting to the employee having brought them (via Cornelius) — respondent — Confine to conduct collateral to the proceedings. See Derbyshire [23] on overreach. This is Nicholls's own phrase, not a unified House test.
• [60] (Lord Hoffmann) — The counterfactual test : Would the employer have refused if the litigation had been concluded? Contains no 'honest/reasonable' language — framework — a distinct formulation. Derbyshire [23] treats it as the more workable, separately-citable test.
• [77] (Lord Scott) — causa causans, not causa sine qua non : 'the language used in section 2(1) is not the language of strict causation ... it is the real reason, the core reason, the causa causans' — framework — the sharpest statement of the reason-why/but-for distinction.
• [48]-[50] (Hoffmann), [70]-[74] (Scott) — The comparator analysis : A major structural chunk of Khan — framework — Now largely obsolete: EA 2010 s.27 removed the comparator requirement entirely.
• [81] (Lord Scott) — Disposal : 'I would allow the appeal and set aside the award of damages to Sergeant Khan.' — respondent — confirms the employer won.
• St Helens BC v Derbyshire [2007] UKHL 16 [23]-[25] (Lord Hope) — The essential caveat : "'Honest and reasonable' ... is not a test set out in the statute ... it should not be used as a substitute for the statutory test ... it may not fit every case." The CA majority below had 'read too much into' Khan and Cornelius by extending the latitude to conduct aimed directly at pressuring a claimant to abandon her claim, rather than conduct merely collateral to the litigation. Derbyshire [9] (Bingham) expressly endorses Khan [29]. Derbyshire [25] flags that Coote v Granada (ECJ C-185/97) was not cited in Khan and bears on the outer limit of employer latitude — dual — Cite alongside Khan whenever the honest/reasonable defence is raised.
• EA 2010 s.27(1) + Explanatory Notes §103 — Statutory succession : 'A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act'. No comparator language. EN §103: 'victimisation is technically no longer treated as a form of discrimination, so there is no longer a need to compare treatment ...' — framework — the comparator abolition is a bigger currency problem for Khan than the 'by reason that' → 'because' wording change.

When relevant

Victimisation claims under EA2010 s.27 where the respondent argues they acted for legitimate, neutral reasons. The 'honest and reasonable' response defence. Mixed motive cases. Cases involving references, litigation-related decisions, or acts taken by the respondent while proceedings are ongoing.