Nagarajan v London Regional Transport (House of Lords)

In brief

The House of Lords held, by a 4:1 majority, that victimisation does not require conscious motivation: it is enough that the protected act was a significant cause of the less favourable treatment, consciously or not; Mr Nagarajan's appeal was allowed. The decision, of 15 July 1999, is reported on BAILII as Swiggs and Others v Nagarajan (Nagarajan is the appellant); Nagarajan v London Regional Transport is the report title. This is a victimisation case under RRA 1976 s.2, not a general race discrimination case. Mr Nagarajan, having previously brought race discrimination proceedings against LRT and a manager (Mr Swiggs), applied in 1993 for a Travel Information Assistant post, was interviewed and rejected. The Industrial Tribunal found the panel was consciously or subconsciously influenced by knowledge of his earlier complaints and upheld victimisation; the EAT and Court of Appeal reversed, holding that s.2(1)'s 'by reason that' requires conscious motivation (following the Court of Appeal dictum in Aziz v Trinity Street Taxis [1989] QB 463). The House of Lords (Lord Nicholls and Lord Steyn giving reasoned speeches, with which Lord Hutton and Lord Hobhouse agreed; Lord Browne-Wilkinson dissenting) held that conscious motivation is not required. It suffices that the protected act was the principal or a significant or important cause of the less favourable treatment, consciously or not. Lord Nicholls held that the key question under s.2(1) is the same as for direct discrimination: why did the complainant receive less favourable treatment? That calls for consideration of the alleged discriminator's mental processes, conscious or subconscious, while motive is irrelevant (R v Birmingham CC ex p EOC [1989] AC 1155; James v Eastleigh BC [1990] 2 AC 751). The Aziz 'conscious motive' dictum was disapproved. In a separate holding, it decided that interviewing and assessing candidates falls within the 'arrangements' in s.4(1)(a). The appeal was allowed, and the Tribunal's decision and £2,500 injury-to-feelings award were restored; by consent, the House dismissed his appeal against Mr Swiggs personally. Lord Browne-Wilkinson's dissent was on the central point: he warned that subconscious-influence liability introduces 'something akin to strict liability' and risks people being 'stamped as racially discriminatory or victimisers' for matters not present to their conscious minds. The proposition is therefore a majority holding, not a unanimous one.

Key provisions

• Lord Nicholls (the s.2(1) point) — Subconscious motivation suffices for victimisation : 'By reason that' does not require the discriminator to be consciously aware of the causal link; it is enough that the protected act was the principal or a significant cause. Verified passage: 'It does so, even if the discriminator did not consciously realise that, for example, he was prejudiced because the job applicant had previously brought claims against him under the Act.' — claimant — Majority only (4:1). Expect Lord Browne-Wilkinson's dissent run against it.
• Lord Nicholls (parity of construction) — s.1(1)(a) and s.2(1) construed in parity : 'On racial grounds' (s.1(1)(a)) and 'by reason that' (s.2(1)) treated as functionally the same 'reason why' question, per EOC and James v Eastleigh — framework — NB the s.1(1)(a) direct-discrimination discussion is analogical scaffolding imported to support the s.2(1) ratio; there was no live direct-discrimination claim on these facts.
• Lord Nicholls (disapproving Aziz v Trinity Street Taxis [1989] QB 463, Slade LJ at 485D) — The 'conscious motive' dictum is not the law : Slade LJ's requirement of 'a motive which is consciously connected with the race relations legislation' held 'not... a correct statement of the law' — framework — the answer to any respondent citing pre-Nagarajan CA/EAT authority requiring conscious motive.
• Lord Nicholls (the s.4(1) point) — Interviewing/assessment are 'arrangements' : Assessing and interviewing candidates falls within the statutory 'arrangements' in s.4(1)(a), reversing the CA — claimant — an independent, practically useful recruitment-stage holding, routinely overshadowed by the subconscious-motivation point.
• Lord Browne-Wilkinson, dissenting — Subconscious influence should not found victimisation : Warns the majority approach introduces 'something akin to strict liability' and risks people being 'stamped as racially discriminatory or victimisers' for matters 'not... present to their conscious minds' — respondent — the strongest available counter-narrative on this point; pre-empt it in claimant coaching per the anticipating-defences discipline.
• Lord Nicholls (citing Coote v Granada Hospitality [1998] IRLR 656 (ECJ)) — EU effectiveness rationale : A conscious-motivation threshold would render s.2(1) protection less effective, contrary to the EU effectiveness principle — claimant — historical EU scaffolding inside a still-binding domestic authority; post-Brexit it is not live EU law.
• Causation standard — 'Principal or at least an important/significant cause' : Not a mere any-influence or de minimis test — framework — the precise standard.

When relevant

In every direct discrimination analysis where the respondent denies conscious bias or intent. Subconscious stereotyping, assumption-based decisions, and implicit-association effects are all within scope. The 'because of' causation under EA2010 s.13 is not limited to conscious discrimination.