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Comparisons are not all odious
Chief Constable of West Yorkshire Police & ors v Khan 2000 IRLR 324
TNT Worldwide Express (UK) Ltd v Brown (Court of Appeal) 4.4.2000
Victimisation is the legal term for treating someone who has made a complaint of, or reference to discrimination, less favourably. It gives protection for people who, either for themselves or others, raise the issue of discrimination, which is referred to as a protected act. Initially confined to the sex and race discrimination legislation, it now appears as standard in most new rights under the Employment Relations Act 1999.
Until recently it was regarded as difficult to prove victimisation; difficult to show the victimisation was caused by the protected act. Nagarajan [1999] IRLR 572 changed that - you no longer have to show an intention or motive to victimise. There is a "but for" test, where, but for the complaint of discrimination, the victimisation would not have occurred.
So the Applicant establishes that he or she has done a protected act and as a result has been treated less favourably. But less favourably than whom? Who should the comparison be made with? The choice of comparison can be crucial to winning or losing a case.
Raham Khan, a police sergeant in the West Yorkshire force, took a complaint of race discrimination against his employer to the Employment Tribunal. A short time later he applied for a job with the Norfolk police who sought a reference from the West Yorkshire police. They said they could not comment because of the pending tribunal case.
Should you compare how an employer normally deals with a request for a reference, or make a comparison with someone who had also complained to a tribunal as Khan had, but of a different form of discrimination? Thankfully the Court took the sensible view that the proper control group is an ordinary reference request, enabling Khan to win the point.
The Court also said you did not have to prove racial motive for the victimisation only that it was "by reason of" the protected act. You do not impute into the comparison the employer's reason for the victimisation (or indeed the employee's racial or gender characteristics).
The Court of Appeal considered the same issues of comparison and motive in TNT Worldwide Express (UK) Ltd v Brown and reached the same conclusion. In that case the employee was found to have been victimised because he had sought and taken time off to see an advisor about his race discrimination claim. TNT said that he was treated in the same way as other employees who would have taken time off to see an adviser about a claim against them. The Court of Appeal said that Tribunals should ignore the reason for the refusal, the comparison is with all those who requested the absence, and not with those who did not get leave.
The law on victimisation has been strengthened by these two cases. Employers will find it harder to defend a claim if they do not treat complainants exactly the same as other employees.
Employees should now find it easier to prove victimisation if they can show less favourable treatment if they have performed a protected act.