February 23 2000
In order to protect those who bring complaints of sex, race or disability discrimination, the law prohibits victimization of individuals for having sought to exercise rights under this legislation. However, until now the scope of the victimization provisions has been limited. In particular, the courts took a view that it was necessary to establish that the alleged victimizer consciously victimized the individual because that individual exercised his or her statutory rights. However, a recent case has radically altered this view and is likely to prove extremely important for employers.
Mr Nagarajan, who was of Indian origin, had a long career with London Regional Transport (LRT) and London Underground Limited, the holding company of LRT. Over the course of his employment, Nagarajan brought a string of race discrimination and victimization cases against his previous employers and their employees. Some cases were settled and others were fought.
In December 1992, he applied for a travel information post at LRT. He was interviewed but was not offered the job. He then brought proceedings against the personnel manager, Mr Swiggs, and LRT for discrimination by way of victimization.
The tribunal dismissed the claim against Swiggs, but held that LRT had victimized Nagarajan. The tribunal found that one of the interviewers had given him an unrealistically low score for articulacy and had also formed the view that Nagarajan was "very anti-management". This, the tribunal held, suggested that the interviewers were subconsciously influenced by the fact that the applicant had previously brought tribunal proceedings against LRT. LRT appealed.
The main question on appeal was whether conscious motivation was required to establish an act of victimization under the Race Relations Act. Both the Employment Arbitration Tribunal and the Court of Appeal were of the opinion that it was necessary.
However, a majority in the House of Lords held that subconscious motivation was sufficient. If an interviewer treats a candidate less favourably than others on the ground that the candidate has in the past brought tribunal proceedings against his employer, this will amount to unlawful victimization. No discriminatory motive is required. It would be sufficient to show that knowledge that an individual has brought proceedings against an employer was an important or significant cause of the less-favourable treatment.
The House of Lords therefore reinstated the tribunal's original finding that Nagarajan had been victimized. The tribunal had been entitled to find that the interviewers were at least subconsciously influenced by the fact that he had previously brought proceedings against LRT.
This case outlines the potential dangers in discrimination cases. The main implication is that it will now be significantly easier for employees to establish victimization. Instead of having to show that the employer deliberately discriminated against an individual, the employee will only have to show that the adverse treatment he or she received is more likely than not to have been caused by the previous complaint. Tribunals are entitled to draw inferences from the evidence put forward, and therefore there will be a heavy burden on an employer to show that there has been no less favourable treatment of an applicant or indeed someone who has threatened a claim.
The practical effect will increase the pressure on an employer in any subsequent dealings with that individual. If the claimant is an existing employee, it may become very difficult to manage the employee properly if any attempt to control or instruct is capable of being challenged as victimization. A tribunal can determine that, regardless of the conscious motivation, there was a subconscious motive, by definition, unknown to the employer.
In light of this decision, employers should ensure that staff involved in any part of the recruitment process are instructed that no consideration must be given to the fact an individual has brought discrimination proceedings against the employer. This will apply not only to race, but also sex and disability discrimination proceedings. The interview and selection process must be conducted fairly (and be seen to be conducted fairly), in accordance with good practice and any equal opportunities policy.
If the issue of previous proceedings is raised by a candidate during the recruitment process, the employer or interviewer should note the comment, but at the same time make it clear that this will not affect their decision. The more evidence the employer can produce that it has not been influenced by previous complaints, the better.
For further information on this topic please contact Nicholas Robertson at Rowe & Maw by telephone (+44 20 7248 4282) or by fax (+44 20 7248 2009) or by e-mail (firstname.lastname@example.org).
The materials contained on this web site are for general information purposes only and are subject to the disclaimer.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
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