Khan v Royal Mail Group Ltd & Ors
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- LORD JUSTICE RIMER
- LORD JUSTICE CHRISTOPHER CLARKE
Areas of Law
- Employment Law
- Human Rights Law
- Civil Procedure
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
Mr. Khan, employed by Royal Mail, claimed racial and religious discrimination. Both the Employment Tribunal and the Employment Appeal Tribunal dismissed his complaints. The Court of Appeal, focusing on whether the burden of proof was correctly applied, found no error in the ET's approach and dismissed Mr. Khan's appeal.
Judgment
Lord Justice Lewison:
Introduction
Mr Khan was employed by Royal Mail. He is a Muslim of Pakistani origin. He made complaints about discrimination on the basis of race and religion by his managers. He also complained about victimisation. His complaints were dismissed by the Employment Tribunal and, on appeal, by the Employment Appeal Tribunal. He appeals with the permission of Rimer LJ. The sole permitted ground of appeal is whether the ET correctly applied the burden of proof.
Mr Khan was represented on this appeal by Mr Tom Brown, appearing pro bono . The respondents were represented by Ms Safia Tharoo. Both counsel made excellent and concise oral submissions, for which the court is extremely grateful.
For the reasons that follow I would dismiss the appeal.
The law on burden of proof
Section 54A (2) of the Race Relations Act 1976 provides:
“Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent—
(a) has committed such an act of discrimination or harassment against the complainant, …
the tribunal shall uphold the complaint unless the respondent proves that he did not commit … that act.”
Regulation 29 of the Employment Equality (Religion or Belief) Regulations 2003 contains similar provisions in relation to allegations of discrimination on the grounds of religion or belief. Section 136 of the Equality Act 2010 (which was not in force at the relevant time) also contains similar provisions.
The operation of these and other similar provisions in other areas of unlawful discrimination has been considered by this court in the two leading cases of Igen Ltd v Wong [2005] EWCA 142; [2005] ICR 931 and Madarassy v Nomura International plc [2007] EWCA Civ 33 ; [2007] ICR 867 . Igen Ltd v Wong makes it clear that the burden is on the complainant to prove, on the balance of probabilities, the primary facts on which he relies. At [29] the court went on to explain what it was that the complainant had to prove:
“The relevant act is, in a race discrimination case…, that (a) in circumstances relevant for the purposes of any provision of the RRA (for example in relation to employment in the circumstances specified in s. 4 of the RRA), (b) the alleged discriminator treats another person less favourably and (c) does so on racial grounds. All those facts are facts which the complainant, in our judgment, need