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Scott v Hillingdon London Borough Council IDS Brief 702 February 2002

This is an important case which rules that knowledge of the protected act on the part of the discriminator is a pre-condition in cases of discrimination by way of victimisation.

Mr Scott, who is of Afro-Caribbean origin, had brought race discrimination proceedings against his former employers Ealing Council. During this period he also applied to Hillingdon Council for a job, and was one of three applicants short-listed for the post and interviewed by three councillors. The job was offered to a white male candidate, who refused it. The job was readvertised, with a note that previous applicants need not reapply.

Mr Scott then brought proceedings against Hillingdon alleging race discrimination and victimisation on the part of the authority. His claim for victimisation alleged that he had done a protected act within the meaning of s 2(1)(a) of the Race Relations Act 1976 in that he had made a complaint of race discrimination against Ealing Council, and that the decision not to further consider him for the post after the chosen candidate had dropped out was less favourable treatment by reason of his having done that protected act. The three councillors who had interviewed Mr Scott gave evidence before the employment tribunal and denied any knowledge of the complainant's race discrimination claim against Ealing Council at the time of the interview, or indeed until very much later. The tribunal dismissed the complaint of race discrimination, but decided that the claim of victimisation had been made out because, having rejected the discrimination claim, the only possible reason for the treatment of Mr Scott was because he had done a protected act. Therefore in effect the Tribunal inferred that the reasons why Mr Scott had been prevented from reapplying for the post was that his previous claim against Ealing Council had marked him out as a potential troublemaker. This was so even though the Tribunal admitted that there was a lack of hard evidence to justify this inference.

Hillingdon appealed to the Employment Appeal Tribunal, which held that the tribunal had erred in that it had not been entitled to draw the inference of victimisation in the absence of any findings to justify it. Mr Scott appealed.

The Court of Appeal dismissed the appeal. It was clear that in a claim for victimisation, knowledge of the protected act on the part of the alleged discriminator was a precondition. The situation in victimisation cases was not identical to that which arose in direct discrimination cases. In direct discrimination cases, knowledge by the alleged discriminator of the race of the complainant would rarely be in issue. When establishing a person's knowledge of a protected act a different issue was involved, and it was wrong for the tribunal to adopt an approach intended for cases of discrimination when considering the issue of the councillor's knowledge. The reality was that there was no positive evidence of knowledge on the part of the three councillors. The Tribunal had merely speculated that the councillors knew of the protected act.

This is an important case is likely to be equally applicable to victimisation in disability discrimination and sex discrimination cases.