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 UKHL 48, 1 WLR 1947, 4 All ER 834, ICR 1065., House of Lords - Melanie Tether
Employers could protect themselves in pending racial discrimination proceedings by preserving their position when asked for references for employees without laying themselves open to a charge of victimisation.
Appeal by the Chief Constable of West Yorkshire Police ('C') from the decision of the Court of Appeal dismissing his appeal from an employment tribunal's decision that he had unlawfully victimised the respondent police sergeant ('K') contrary to s.2(1)(a) Race Relations Act 1976. The employment tribunal had found K's complaint of victimisation proved after hearing that C had refused K a reference for another post in the police because he had outstanding discrimination proceedings against C. K submitted in his appeal that Cornelius v University College of Swansea (1987) IRLR 141 was wrongly decided.
HELD: (1) The decision in Cornelius showed that once proceedings had been commenced a new relationship was created between employer and employee: that of adversaries in litigation. (2) Employers ought to be able to protect themselves in pending proceedings, by preserving their position, without laying themselves open to a charge of victimisation. That conclusion accorded with the spirit and purpose of the Act. Furthermore, an employer who so acted did so because of the pending proceedings (or the determination of them) rather than because of the discrimination complained of. (3) K's case proffered the unacceptable prospect that C would have had to give a reference that would later be rejected by a judicial body or else simply mention, without further explanation, that proceedings were pending.