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

In brief

The House of Lords considered victimisation under the Race Relations Act 1976 (now EA 2010 s.27). Held that for victimisation to be established, the protected act must have been 'a cause' (not necessarily the only cause) of the less favourable treatment. However, where an employer acts honestly and reasonably in its own interests (here: refusing to give a reference while the claimant's discrimination claim against it was pending, to avoid prejudicing the ongoing litigation), the causal link may be broken. Lord Nicholls emphasised that the concept of victimisation should not 'cut across the ordinary conduct of litigation in a wholly unacceptable way'.

Key provisions

• honest-response-defence — 'Honest and reasonable response' defence in victimisation: Where an employer acts honestly and reasonably in its own legitimate interests (e.g. defending pending litigation), the causal link between protected act and adverse treatment may be broken. The 'protected act → adverse treatment' inference is rebuttable by an honest, reasonable, neutral business reason. Lord Nicholls: victimisation doctrine should not cut across the ordinary conduct of litigation.

When relevant

Cite when: (a) victimisation under EA 2010 s.27 is in issue and the respondent advances a legitimate-interests defence; (b) the protected act was a cause but not the sole cause of adverse treatment; (c) employer is asserting an 'honest response to pending litigation' defence; (d) need to balance victimisation protection against the ordinary conduct of litigation; (e) post-employment victimisation context — cite alongside JESSEMEY-CA-2014 and WARBURTON-2022.