Swiggs and others v Nagarajan: HL 15 Jul 1999

Bias may not be intentional

The applicant claimed that he had been denied appointment to a job with London Regional Transport because he had brought a number of previous race discrimination claims against it or associated companies. An industrial tribunal had upheld his claim of victimisation contrary to section 2(1) of the 1976 Act, finding that the decision-makers had been ‘consciously or subconsciously’ influenced by knowledge of his previous complaints.
Held: Where an applicant for a job had previously been awarded damages for racial discrimination against the employers, the employers being aware of that judgment could make themselves liable again by failing to select him in the absence of conscious discrimination, but where they had been unconsciously affected by that decision to an extent which had a substantial effect on the decision. In section 1(1)(a) cases the tribunal simply has to pose the question: Why did the defendant treat the employee less favourably? It does not have to consider whether a defendant was consciously motivated in his unequal treatment of an employee. That is a straightforward way of carrying out its task in a section 1(1)(a) case.
Lord Nicholls said: ‘Treatment, favourable or unfavourable, is a consequence which flows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.’
‘All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be [racially] motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant’s [race]. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, [race] was the reason why he acted as he did.’ As evidence, motive is always relevant’.

Lord Steyn, Lord Nicholls
Times 19-Jul-1999, Gazette 11-Aug-1999, [1999] UKHL 36, [2000] 1 AC 501, [1999] 3 WLR 425, [1999] 4 All ER 65, [1999] IRLR 572, [1999] ICR 877
House of Lords, Bailii
Race Relations Act 1976 1(1)(a) 2 (1)
England and Wales
ReversedNagarajan v London Regional Transport; Swiggs and London Regional Transport v Nagarajan CA 7-Nov-1997
On a true construction of section 2(1), a person alleged to have been victimised had to establish that the alleged discriminator, in treating him less favourably than another, had a motive which was consciously connected with the race relations . .

Cited by:
CitedEuropean Roma Rights Centre and others v Immigration Officer at Prague Airport and Another CA 20-May-2003
A scheme had been introduced to arrange pre-entry clearance for visitors to the United Kingdom by posting of immigration officers in the Czech Republic. The claimants argued that the system was discriminatory, because Roma visitors were now . .
Reversed on sNagarajan v London Regional Transport; Swiggs and London Regional Transport v Nagarajan CA 7-Nov-1997
On a true construction of section 2(1), a person alleged to have been victimised had to establish that the alleged discriminator, in treating him less favourably than another, had a motive which was consciously connected with the race relations . .
CitedDr Anya v University of Oxford and Another CA 22-Mar-2001
Discrimination – History of interactions relevant
When a tribunal considered whether the motive for an act was discriminatory, it should look not just at the act, but should make allowance for earlier acts which might throw more light on the act in question. The Tribunal should assess the totality . .
CitedThe Law Society v Kamlesh Bahl EAT 7-Jul-2003
EAT Sex Discrimination – Direct
The complainant had been suspended from her position as Vice President of the Law Society. The Society and its officers appealed findings of sex and race discrimination . .
CitedMurphy v Sheffield Hallam University EAT 11-Jan-2000
The claimant challenged refusal of his claim of discrimination. He was profoundly deaf. He applied for work, and indicated his disability, but no provision was made for a signer to appear at the interview. The interview was re-arranged, but he . .
CitedMadden v Preferred Technical Group CHA Limited, Guest CA 27-Aug-2004
The claimant had made a complaint of race discrimination. The complaint was dismissed. Some time later the company dismissed him, and he again lodged a complaint. The tribunal found him unfairly dismissed, but again not discriminated against.
CitedRegina v Immigration Officer at Prague Airport and another, ex parte European Roma Rights Centre and others HL 9-Dec-2004
Extension oh Human Rights Beyond Borders
The appellants complained that the system set up by the respondent where Home Office officers were placed in Prague airport to pre-vet applicants for asylum from Romania were dsicriminatory in that substantially more gypsies were refused entry than . .
CitedA C Redfearn v Serco Ltd T/A West Yorkshire Transport Service EAT 27-Jul-2005
The claimant said that he had been indirectly discriminated against on racial grounds. He was dismissed after being elected as a local councillor for the BNP. The employer considered that for Health and Safety reasons, his dismissal was necessary . .
CitedMohammed, Regina (on the Application of) v Secretary of State for Defence CA 1-May-2007
In 2000, the defendant introduced a policy to make compensation payments for those British services personnel who had been imprisoned by the Japanese in the second world war. The appellant, a citizen of Pakistan had served in the Indian Army, was . .
CitedBalamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting CA 6-Dec-2001
The claimant had been struck from the register of nurses after convictions arising from failures of his staff at his nursing home with regard to drug management. He had then brought claims of unlawful race discrimination against the health authority . .
CitedEnglish v Thomas Sanderson Ltd CA 19-Dec-2008
The claimant appealed dismissal of his claim for harrassment and sex discrimination. Though heterosexual, he had been subject to persistent jokes that he was homosexual. The court first asked whether the alleged conduct was ‘on the grounds of sexual . .
CitedAmnesty International v Ahmed EAT 13-Aug-2009
EAT RACE DISCRIMINATION – Direct discrimination
RACE DISCRIMINATION – Indirect discrimination
RACE DISCRIMINATION – Protected by s. 41
UNFAIR DISMISSAL – Constructive dismissal
Claimant, of . .
CitedE, Regina (On the Application of) v The Governing Body of JFS and Another CA 25-Jun-2009
E challenged the admissions policy of a school which admitted by preference children acknowledged to be Jewish by the Office of their Rabbi. His mother being Jewish by conversion in a progressive synagogue, E was excluded. The claimant suggested . .
CitedE, Regina (on The Application of) v Governing Body of JFS and Another SC 16-Dec-2009
E complained that his exclusion from admission to the school had been racially discriminatory. The school applied an Orthodox Jewish religious test which did not count him as Jewish because of his family history.
Held: The school’s appeal . .
CitedPothecary Witham Weld (A Firm) and Another v Bullimore and Another EAT 29-Mar-2010
Ex-employee given unfavourable reference – Claim that terms of reference were partly on account of her having previously brought . .
CitedFecitt and Others v NHS Manchester EAT 23-Nov-2010
S.47B of the Employment Rights Act 1996 provides that ‘A worker has the right not to be subjected to any detriment by any act, or any deliberate . .
CitedNHS Manchester v Fecitt and Others CA 25-Oct-2011
The appellant challenged reversal by the EAT of a finding that it had not unlawfully victimised the respondents for the making of a protected disclosure. The claimant had reported a co-worker exaggerating his qualifications. After repeated . .
CitedCass v Amt-Sybex (Northern Ireland) Ltd NIIT 26-Jan-2011
The decision of the tribunal is that the respondents’ application for costs is refused. . .
CitedBeghal v Director of Public Prosecutions SC 22-Jul-2015
Questions on Entry must be answered
B was questioned at an airport under Schedule 7 to the 2000 Act, and required to answer questions asked by appropriate officers for the purpose set out. She refused to answer and was convicted of that refusal , contrary to paragraph 18 of that . .
CitedEssop and Others v Home Office (UK Border Agency) SC 5-Apr-2017
The appellants alleged indirect race and belief discrimination in the conditions of their employment by the respondent. Essop came as lead claimant challenging the tests used for promotion. Statistics showed lower pass rates for BME candidates, but . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Leading Case

Updated: 01 November 2021; Ref: scu.159019