Nagarajan v London Regional Transport (House of Lords)

In brief

The House of Lords held that conscious motivation is not required for race discrimination (or discrimination on any protected characteristic): subconscious prejudice is sufficient. The phrase 'by reason of' the protected characteristic (now 'because of' under EA 2010 s.13) includes cases where the discriminator is influenced by a protected characteristic without being aware of it. Lord Nicholls: 'Discrimination can be on grounds of race even if the employer is unaware of his own motivation.' Overruled the Court of Appeal's requirement that the discriminator must have been consciously motivated by the protected characteristic.

Key provisions

• subconscious-causation — Subconscious motivation sufficient for EA 2010 s.13 'because of' causation: Lord Nicholls: 'Discrimination can be on grounds of race even if the employer is unaware of his own motivation.' Conscious motivation is not required; subconscious prejudice influencing decisions is sufficient. The 'by reason of' (now 'because of') causation test in EA 2010 s.13 includes unconscious influence.

When relevant

Cite when: (a) respondent argues 'no conscious discriminatory intent' as a defence; (b) causation under EA 2010 s.13 is in issue and only circumstantial/inferential evidence available; (c) burden-of-proof shifting under s.136 EA 2010 is being argued; (d) the discriminator's mental state is contested — NAGARAJAN closes off the 'I didn't realise' defence.