Nagarajan v London Regional Transport (House of Lords)

In brief

House of Lords, 15 July 1999. NOTE THE CAUSE TITLE: BAILII carries this as 'Swiggs and Others v Nagarajan' (Nagarajan is the appellant); 'Nagarajan v London Regional Transport' is the report/secondary title. A search for the BAILII transcript under the common name alone will fail. THIS IS A VICTIMISATION CASE (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 s.2(1)'s 'by reason that' requires CONSCIOUS motivation (following the CA dictum in Aziz v Trinity Street Taxis [1989] QB 463). HELD, BY A 4:1 MAJORITY (Lord Nicholls leading; Lord Steyn, Lord Hutton, Lord Hobhouse concurring; *** LORD BROWNE-WILKINSON DISSENTING ***): conscious motivation is NOT required. It suffices that the protected act was the principal or a significant/important cause of the less favourable treatment, consciously or not. The House extended to s.2(1) the objective-causation approach established for direct discrimination in R v Birmingham CC ex p EOC [1989] AC 1155 and James v Eastleigh BC [1990] 2 AC 751, and expressly disapproved the Aziz 'conscious motive' dictum. SEPARATE HOLDING: interviewing and assessing candidates falls within the 'arrangements' in s.4(1)(a). Appeal allowed; Tribunal's decision and £2,500 injury-to-feelings award restored. The claim against Mr Swiggs personally was dismissed by consent before the House. THE DISSENT IS NOT A TECHNICALITY. Lord Browne-Wilkinson dissented on the CENTRAL point, warning 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. Any record presenting this as a settled unanimous proposition is incomplete.

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; flag as such post-Brexit, do not present as 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; our previous record omitted it.

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.