DISCRIMINATION

Discrimination complaint pending - employer refusing reference - not victimisationChief Constable of West Yorkshire Police v Khan: HL (Lord Nicholls of Birkenhead, Lord Mackay of Clashfern, Lord Hoffmann, Lord Hutton and Lord Scott of Foscote): 11 October 2001A police officer complained to an industrial tribunal of unlawful racial discrimination by the chief constable, his employer.

Before his complaint had been heard, he applied for a job with another police force.

The chief constable, having regard to the pending proceedings, declined to give him a reference, informing the other force of the proceedings.

The complainant thereupon additionally complained to the tribunal of victimisation contrary to section 2(1)(a) of the Race Relations Act 1976.

His racial discrimination complaint was dismissed, but his victimisation complaint was upheld.

The Employment Appeal Tribunal and the Court of Appeal [2000] ICR 1169 dismissed the chief constable's appeals.

He appealed.David Bean QC, David Jones and Joanna Moody (instructed by Sharpe Pritchard for the solicitor, West Yorkshire Police, Wakefield) for the chief constable.

John Hand QC and Melanie Tether (instructed by Russell Jones & Walker, Leeds) for the complainant.Held, allowing the appeal, that the comparison to be made under section 2(1) of the 1976 Act was between the treatment accorded to the complainant who had done the protected act and the treatment that had been or would have been accorded to other employees who had not; that no additional features needed to be factored into the comparison; that on that basis the complainant had been treated less favourably than his comparators; but that, under section 2(1)(a), the chief constable had refused the complainant a reference because of the existence of the racial discrimination proceedings and his need to preserve his position thereunder, not 'by reason that' the complainant had brought proceedings against him, and, accordingly, had not discriminated against the complainant by way of victimisation.

(WLR)