[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Yearwood v Commissioner of Police for The Metropolis & Anor [2004] UKEAT 0310_03_2805 (28 May 2004) URL: http://www.bailii.org/uk/cases/UKEAT/2004/0310_03_2805.html Cite as: [2004] UKEAT 310_3_2805, [2004] UKEAT 0310_03_2805, [2004] ICR 1660

[New search] [Printable RTF version] [Buy ICLR report: [2004] ICR 1660] [Help]

SUMMARY

1. The reference to agency in the SDA and RRA is to agency at common law. There is no alternative construction, in order to give effect to the purpose of the ET Directive.

2. A police officer appointed as investigating or supervising officer in statutory police disciplinary proceedings is not the agent of the chief officer of police who is not liable for unlawful discrimination by those officers. A civilian officer may be an agent or may be carrying out management functions for which the chief officer is responsible.

3. Delay in re-fixing an adjourned hearing may make the Decision unsafe.


 


HIS HONOUR JUDGE McMULLEN QC

1. These appeals arise out of claims made by serving police officers under the Sex Discrimination Act 1975 and the Race Relations Act 1976. There are some common issues, defined by the parties as the generic issues, which broadly speaking relate to the ability of police officers to sue their chief officer in respect of the discriminatory handling of disciplinary matters by officers within a statutory disciplinary framework. Other issues affect only certain police officers in the appeals, relating to the effect of delay on adjourned hearings, the responsibility of a Chief Constable for the acts of a civilian employee and the circumstances in which an Originating Application, or part of it, may be struck out.

The Tribunal proceedings and our conclusions

2. The case of Kochar -v- The Commissioner of Police for The Metropolis was dismissed as misconceived under the Race Relations Act by Mrs C Tribe, Chairman, sitting alone at Watford on 14 February 2003. By consent, part of the appeal is allowed, and remitted for a full hearing, the remainder dismissed.
3. Jeffrey -v The Commissioner of Police was struck out as misconceived by an Employment Tribunal Chairman, Mr R Peters, sitting on a preliminary issue in a Reserved Decision issued with Extended Reasons on 13 May 2003. His claim was under the 1976 Act and the Sex Discrimination Act 1975. His appeal is dismissed.
4. Yearwood -v- The Commissioner of Police & Ms A Fisher was heard at London (South) Employment Tribunal and was struck out by the Chairman, Mr A M Snelson, in a Reserved Decision with Extended Reasons registered on 25 February 2003. His claim was brought under the 1975 Act. His appeal is dismissed.
5. The cases of Miller, Lockwood, Whatmore & Hassell -v- The Commissioner of Police for the Metropolis were heard at Stratford E, Chairman Mr J N Leonard. The Tribunal refused the Respondent's application for the cases to be struck out as misconceived. They were brought under the Sex Discrimination Act. The Respondent's appeal is dismissed in part.
6. Husain -v- The Chief Constable of Merseyside Police was heard by an Employment Tribunal sitting at Liverpool, Chairman Ms E R Donnelly, and a Decision was entered with Extended Reasons on 29 August 2003. The Tribunal upheld the Applicant's claim under the Race Relations Act. The Respondent's appeal is allowed.
7. It follows that appeals are made by Applicants and Respondents in the proceedings below. For simplicity we will adopt the same terminology. Most of these proceedings, and a good deal of other cases, had been stayed pending the judgment of the Court of Appeal in Chief Constable of Bedfordshire -v- Liversidge [2002] ICR 552. Appeals had later been stayed pending the judgment of the Court of Appeal in Chief Constable of Kent County Constabulary -v- Baskerville [2003] ICR 1463.
8. I gave case management directions at a hearing on 19 December 2003, and these cases are what remain of proceedings involving about 30 separate claims on appeal to the EAT. Directions included consideration of representation, and thanks to sensible co-operation between all the parties, Ms Ijeoma Omambala represented all Applicants except those in the Miller case, who were represented by Ms Ruth Downing. Mr Philip Mead represented the Commissioner and Ms Tanya Griffiths represented the Chief Constable of Merseyside (in the Husain case). Again for simplicity we will refer to them as chief officers (of police).

The legislation

9. These case concerns the treatment of police officers in employment law. The relevant provisions were described in my judgment in Chief Constable of Kent County Constabulary -v- Baskerville EAT/839/02 2 May 2003, as follows:

"Discrimination and the police

4 The relevant provisions of the legislation are as follows. The Equal Treatment Directive ("the ETD") 76/207/EEC provides for member states to implement the principle of equal treatment of men and women in employment and occupation, now incorporated in Art 141.3 of the consolidated version of the Treaty of Rome. The Sex Discrimination Act 1975 gives effect in Great Britain to that obligation. Section 6 in Part II headed Discrimination in the Employment Field provides the forms of discrimination made unlawful by section 1:

"(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman -

(a) in the arrangements he makes for the purpose of determining who should be offered that employment, or

(b) in the terms on which he offers her that employment, or

(c) by refusing or deliberately omitting to offer her that employment.

(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her –

(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

(b) by dismissing her, or subjecting her to any other detriment."

Section 17 defines the engagement of a police officer:

"(1) For the purposes of this Part [Part II], the holding of the office of constable shall be treated as employment -

(a) by the chief officer of police as respects any act done by him in relation to a constable or that office;

(b) by the police authority as respects any act done by them in relation to a constable or that office."

Section 41 in Part IV headed "Other Unlawful Acts" provides for the liability of employers (41(1)) and of principals and agents:

"(2) Anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that other person shall be treated for the purposes of this Act as done by that other person as well as by him."

Section 63(1) gives the entitlement to complain:

"(1) A complaint by any person ('the complainant') that another person ('the respondent') -

(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part II, or

(b) is by virtue of section 41 … to be treated as having committed such an act of discrimination against the complainant, may be presented to an employment tribunal."

5 The Race Relations Act 1976 is also relevant to the interpretation of the Sex Discrimination Act. Section 16 in Part II of the Race Relations Act corresponds to section 17, and was repealed with effect from 2 April 2001 by the Race Relations (Amendment) Act 2000 Section 4. Section 32(2) in Part IV of the Race Relations Act corresponds to section 41(2). But by section 76A of the amended Race Relations Act 1976, it is provided broadly speaking that a police constable is treated as in the employment of her chief constable, again from 2 April 2001. The Race Relations Act 1976 was modelled on the Sex Discrimination Act, which in turn was modelled on, but was in respects relevant to this appeal significantly different from, the Race Relations Act 1968.

6 The Police Act 1996, makes provision for the establishment of police forces. Section 10, provides as follows:

"General functions of chief constables

(1) A police force maintained under section 2 shall be under the direction and control of the chief constable appointed under section 11.

(2) In discharging his functions, every chief constable shall have regard to the local policing plan issued by the police authority for his area under section 8."

Section 88 defines the liability of a chief constable for torts:

"Liability for wrongful acts of constables

(1) The chief officer of police for a police area shall be liable in respect of torts committed by constables under his direction and control in the performance or purported performance of their functions in like manner as a master is liable in respect of torts committed by his servants in the course of their employment, and accordingly shall in respect of any such tort be treated for all purposes as a joint tortfeasor."

The Police Act section 2 provides that police forces are maintained for each of the areas referred to in the statute. Specific powers are given to each chief constable, including the power of appointment of others, to deal with complaints, and, it was held, power to delegate: cited Liversidge [2002] ICR 1135 para 49."

10. To those provisions of the Police Act can be added the following: section 15 provides:

15. - (1) A police authority established under section 3 may employ persons to assist the police force maintained by it or otherwise to enable the authority to discharge its functions

(2) A police authority shall exercise its powers under section 101 (and section 107) of the Local Government Act 1972 so as to secure that, subject to subsection (3) below, any person employed by the authority under this section is under the direction and control of the chief constable of the police force maintained by the authority

(3) Subsection (2) shall not apply to such of the persons employed by the authority as may be agreed between the chief constable and the authority or, in the absence of agreement, as may be determined by the Secretary of State."


11. Section 24 enables one police force to assist another as follows:

24. - (1) The chief officer of police of any police force may, on the application of the chief officer of police of any other police force, provide constables or other assistance for the purpose of enabling the other force to meet any special demand on its resources.
 ….

 (3) While a constable is provided under this section for the assistance of another police force he shall, notwithstanding section 10(1), be under the direction and control of the chief officer of police of that other force.

12. Regulations may be made by the Secretary of State for the conduct, efficiency and effectiveness of members of police forces, the maintenance of discipline, and the suspension of officers. Specifically, regulations provide for procedures to be established for the dismissal, requirement to resign, reduction in rank etc of officers subject to discipline. The scope of these regulations is as follows:

"50. - (1) Subject to the provisions of this section, the Secretary of State may make regulations as to the government, administration and conditions of service of police forces.

…

(4) In relation to any matter as to which provision may be made by regulations under this section, the regulations may, subject to subsection (3)(b),-

 (a) authorise or require provision to be made by, or confer discretionary powers on, the Secretary of State, police authorities, chief officers of police or other persons, or

 (b) authorise or require the delegation by any person of functions conferred on that person by or under the regulations."

13. Regulations were issued pursuant to the Police Act and its predecessor. The Police (Discipline) Regulations 1985 provided a definition of a Chief Officer as:

"including a reference to a person discharging the functions of a Chief Officer"

14. By Schedule 1 to the Regulations, a discipline code for police officers is set out, covering discreditable conduct, misconduct and other offences. By Regulation 5 it is provided that an officer commits an offence against discipline if he or she commits an offence in the discipline code. The first stage of invocation of the Regulations is described as an investigation into a report, allegation or complaint against a member of a police force, which means a police constable. The preliminary stages of an investigation are regulated as follows in Regulation 6:

"Investigation procedure

(3) Unless the chief officer concerned decides that no disciplinary proceedings need to be taken, the matter shall be referred to an investigating officer who shall cause it to be investigated.

(4) The investigating officer shall be -

(a) a member of the police force concerned, or, if the chief officer of some other force is requested and agrees to provide an investigating officer, a member of that other force;

(5) Neither shall be appointed as the investigating officer for the purposes of paragraph (3) or section 85 of the Act of 1984 (formal investigation of a complaint)

(a) the chief officer of the police force concerned, nor

(b) any member of the police force concerned serving in the same sub-division or branch as the member subject to investigation."

15. Following a report from the investigating officer, a charge may be formulated, the decision as to which must be taken by the chief officer (Regulation 8). The chief officer must provide details of the charge; the chief officer may withdraw the charge. The hearing of the charge is before the chief officer (Regulation 13) except in cases "remitted by the chief officer concerned to another chief officer …." (Regulation 14) in cases where "the chief officer concerned is interested in the case" or is a material witness. It is specifically provided that a chief officer may delegate the duty of deciding whether a police officer should be charged with an offence.
16. The 1985 Regulations were replaced by the Police (Conduct) Regulations 1999. These cover similar territory to the 1985 Regulations, but introduce a "supervising officer" to supervise the investigation of case. Under Regulation 7 there is an investigation procedure which provides as follows:

"7 (1) Subject to paragraph (2), where a report, complaint or allegation is received by the chief officer which indicates that the conduct of a member of a police force did not meet the appropriate standard, the case may be referred by him to an officer, who shall satisfy the conditions in paragraph (3), to supervise the investigation of the case."

17. Then an investigating officer is appointed pursuant to Regulation 8.

"8 (1) The supervising officer may appoint an investigating officer to investigate the case."

18. The investigating officer must report (Regulation 10(1)) to the supervising officer. S/he is given various responsibilities to make decisions, as is the supervising officer receiving an investigating officer's report (Regulations 10 and 11). If the supervising officer is satisfied that a hearing should take place in accordance with the Regulations, a hearing will be convened before three officers "who shall not be interested parties". Those officers have power to impose sanctions (Regulation 31) from dismissal to caution. An officer dissatisfied with such a sanction may request a review (Regulation 34) by the chief officer or, in the Metropolitan Police, the Assistant Commissioner. This officer is "the reviewing officer".
19. It will be seen that the above two sets of Regulations contain duties and discretions, placed on and exercisable by respectively chief officers, investigating officers, (from 1999) supervising officers and reviewing officers. The 1985 Regulations expressly disqualify a chief officer from being an investigating officer.
20. In addition to regulations, Guidance concerning complaints could be issued by the Secretary of State, pursuant to section 83 of the Police Act. This provision was repealed by the Police Reform Act 2002 Section 107(2), but there was relevant Guidance at the time of these proceedings. Paragraph (b) of the introduction to the Guidance says: those responsible for administering procedures within the police service are required to take the guidance fully into account. It should not be departed from without good reason.
21. Included in the Guidance is a code of conduct for police officers in precis form, and a description of a Chief Constable's powers in relation to disciplinary action, where there is this at paragraph 4.10:

"4.10 The Chief Constable must have had no previous involvement in the case under review, and nor must he or she have any detailed knowledge of the case prior to the request for a review."

Discrimination against police officers

22. The right of a constable to hold the chief officer responsible for discrimination committed against him or her in the course of their service has been the subject of protracted and creative litigation. In order to simplify our approach to the present appeals, it is hoped that the following is a reasonable summary of the law as it is applied at the times of these cases.
23. A police constable is not an employee of the chief officer: Farah -v- Commissioner of Police of the Metropolis [1998] QB 65 CA.
24. A police constable is not the agent of a chief officer, who is not therefore directly liable for the constable's actions in the course of their duties as an officer of the peace: Farah (above).
25. A chief officer is not responsible for acts of discrimination committed by one officer against another: Liversidge (above).
26. An act done by an officer below the rank of chief officer is regarded as an act done by the chief officer if it is to do with "essentially management decisions" e.g. recruitment, posting etc, made as part of the direction and control of the police force, vested in the chief officer, but carried out under his or her authority by other officers in the chain of command. Chief Constable of Cumbria -v- McGlennon [2002] ICR 1156 EAT Mr Commissioner Howell QC approved in Baskerville (above).
27. An act done by a police officer as agent of a chief officer is to be treated as having been done by the agent and the principal: Baskerville (above).

The agency issue

28. The generic issue in these case relates to the responsibility of investigating officers under the 1985 and 1999 Regulations, and supervising officers under the 1999 Regulations. On behalf of the Applicants, it is contended that those officers' acts or omissions are ones for which the chief officer may be liable, pursuant to section 32(3) of the 1976 Act (section 41(2) of the 1975 Act).
29. A question also arises as to whether the 1975 Act can be interpreted in a purposive manner to provide the Applicants with remedies pursuant to the Equal Treatment Directive. Although both statutes are in play, it is common ground that an interpretation of the wording of one of these anti-discrimination measures may be applied to equivalent wording in another: Rhys-Harper -v- Relaxion Group Plc [2003] ICR 867 at 929B HL; Anyanwu -v- South Bank Students Union [2001] ICR 391 HL, at 393 para 2 per Lord Bingham. In construing these statutes, it is appropriate to take account of headings in the Acts themselves: Bennion, Statutory Interpretation 3^rd edition, page 574, section 255 citing authorities.
30. On behalf of the Applicants, two simple submissions are made. First, where the Acts use the expression "agent" in the text, and "principal" in the headings, these are not references to agents and principals in the technical sense of the common law. ("Principal" does not appear in the text but it is accepted that "another person" means the "principal" referred to in the headings). It is submitted that a Tribunal which is to determine as a matter of fact whether or not a police officer is acting as agent of a chief officer, is to give the phrase "agent" its ordinary everyday meaning as being "a person who acts on behalf of another person with their authority". This was described as "agency in general terms rather than at common law".
31. Secondly, it is contended in the alternative that the power to direct and control a police force vested in the chief officer by sections 2 and 10 of the Police Act include the direction and control of all officers engaged in the discipline and conduct of officers.
32. On behalf of the Respondents, in an argument by Mr Mead adopted by Ms Griffiths, it is contended as follows:

(1) The Chief Officer, Investigating Officer and Supervising Officer are prescribed particular powers and duties under the Regulations.

(2) These duties and powers are not subject to express direction and control by the chief officer.

(3) The named officers are obliged to perform their respective duties under the regulations, save that in certain circumstances it may be permissible to delegate certain functions.

(4) It would be a breach of statutory duty for a named officer to perform the duties of another officer.

(5) For the agency argument to succeed, there must be an arguable case that the supervising or investigating officers were acting with the express or implied authority of the chief officer.

(6) The regulations establish a disciplinary process with defined functions and responsibilities which is inimical to any relationship of agency.

(7) In the case of the 1985 Regulations, the chief officer is expressly precluded from acting as an investigating officer.

(8) EC law does not provide a remedy in circumstances where it is not possible purposively to construe domestic legislation to give the Applicants a remedy.





Powers of police officers

33. The following propositions do not appear to be in dispute. The duties of a constable derive from his/her office and from the relevant Regulations. These duties are public law duties, enforceable by means of judicial review: R v Chief Constable of the Merseyside Police, ex parte Calveley [1986] QB 424 CA. It is therefore necessary, when interpreting the Regulations, to take into account the case law and duties which have been held to apply in the disciplinary context, as a result of the general duty in administrative law to act fairly. From that the following duties and obligations apply:

a. Police officers can be removed from office only by a valid exercise of the statutory power of dismissal: Cooper v. Wilson [1937] 2 KB 2 KB 309;

b. A power shall be exercised by the precise person or body stated in the statute: Chief Constable of the North Wales Police v. Evans [1982] 1 WLR 1155 at 1161F-G, 1165C-D;

c. The chief officer has a duty under Regulation 13 of the 1985 Regulations to adjudicate in disciplinary matters: R (Bennion) v. Chief Constable of Merseyside [2002] ICR 136 (at 145);

d. The exercise of a discretionary power entrusted to a named officer could not be exercised by another officer in the absence of express statutory provision for the appointment of a deputy, unless the administrative convenience of allowing a deputy or subordinate clearly outweighed the desirability of maintaining the principle that the officer designated by statute should act personally: Nelms v. Roe [1970] 1 WLR 4 (at 8-9); R v. Chief Constable of Greater Manchester Police ex parte Lainton [2000] ICR 1324;

e. The power conferred on one authority should not be exercised by another: R v. Police Complaints Board, ex parte Madden [1983] I WLR 447;

f. Pursuant to the rule against bias, the proceedings of a watch committee are fatally flawed by the presence of the chief officer: Cooper v. Wilson (above) and R v. Leicestershire Fire Authority ex parte Thompson (1978) 77 LGR 373.

g. Where there has been previous involvement in a case by a person who should be unbiased, then the appearance of bias may be created or the decision may be pre-determined: R v. Kent Police Authority ex parte Godden [1971] 2 QB 662 (at 669-670,671,672); Bennion (above).

34. With those propositions in mind we consider the scope of agency in the Regulations.

Agency

35. Submissions were made to us on the nature of agency which we found very helpful. There was substantial reference to Bowstead and Reynolds on Agency by Mr Mead, none of which was the subject of criticism in reply on behalf of the Applicants. We therefore take the definition to be as follows:

"(1) Agency is the fiduciary relationship which exists between two persons, one of whom expressly or impliedly consents that the other should act on his behalf so as to affect his relations with third parties, and the other of whom similarly consents so to act or so acts. The one on whose behalf the act or acts are to be done is called the principal. The one who is to act is called the agent. Any person other than the principal and the agent may be referred to as a third party.

(2) In respect of the acts which the principal expressly or impliedly consents that the agent shall so do on the principal's behalf, the agent is said to have authority to act; and this authority constitutes a power to affect the principal' s legal relations with third parties.

(3) Where the agent's authority results from a manifestation of consent that he should represent or act for the principal expressly or impliedly made by the principal to the agent himself, the authority is called actual authority, express or implied, But the agent may also have authority resulting from such a manifestation made by the principal to a third party; such authority is called apparent authority.

36. The authors recognise that there are limits on the above definition, for they say as follows (at 1-003):

"The word "agency", to a common lawyer, refers in general to a branch of the law under which one person, the agent, may directly affect the legal relations of another person, the principal, as regards yet other persons, called third parties, by acts which the agent is said to have the principal's authority to perform on his behalf and which when done are in some respects treated as the principal's acts."

37. The justification for the agent's power is a unilateral manifestation by the principal of his or her willingness to have their legal position changed by the actions of an agent. The result of this manifestation is that the agent has the power to affect the principal's legal relations. The authors also deal with the meaning of "agent" in the abstract, for they say as follows (at 1-022)

"And where the term agent is used in a statute or formal document, it has been said that it may be presumed that the word is used in this, its proper legal connotation, unless there are strong contrary indications."

38. An important incident of the relationship is that an agent may be appointed to do any act on behalf of the principal, which the principal might do himself or herself: paragraph 2-017. A phenomenon of the common law of agency is that when the agent acts on behalf of a disclosed principal, the agent is not liable to the third party, nor can the third party sue the agent upon it. Yet in the field of discrimination, both are liable by statute.
39. It is next appropriate to consider the application of those principles to the two statutes. In our judgment, the use of the term "principal" and "agent" in these statutes connotes the description of the agency relationship described above. The only change from the common law position is, as we have indicated, that both the principal and the agent are liable in discrimination. Otherwise we see no justification for a departure from the established and well understood context in which the term "agent" is used. It is a far more reliable proposition than the unspecific recruitment of ordinary language asserted on behalf of the Applicants. We are attempting to apply a statute which invokes a legal context in which the actors are instantly recognisable as principal and agent, and in which their relationship to each other and to the third parties are defined by long established doctrine. By invoking those terms, there is no need for a lengthy exposition of what Parliament intended to achieve. On the contrary, if a more general expression were used, it would require a more general definition to be given.
40. Support for our approach to this can, we think, be found in the specific reference to the imposition of liability on both the agent and the principal, a departure from common law agency principles. No other departure from those principles is expressed in the statutes, and so we do not consider such departure to be justified. Where the Acts say "agent" in the text and "principal" in the headings, they mean agency, as we have set out from our understanding above.
41. The next question is to consider whether the 1985 and 1999 Regulations impose such an agency. In our judgment they do not. The proper construction of these Regulations is that various officers within the police force are given responsibilities. Since, in the 1985 Regulations, the chief officer is expressly excluded from carrying out the duties of an investigating officer, he or she cannot delegate those duties. That is implicit in the 1999 Regulations, too. People cannot do through an agent something they cannot do for themselves. Specific duties are placed on all of the parties in the 1985 and 1999 Regulations. They apply directly, and only occasionally may a duty be delegated. What shines through both sets of Regulations is a clear intention to separate the functions of the various actors. It is made plain that a chief officer may not be involved in any case in which he or she has an interest, so that actual and apparent impartiality is preserved. While it is true that the chief officer must appoint an investigating officer in the 1985 Regulations and a supervising officer in the 1999 Regulations, thereafter those officers carry out the functions prescribed for them by the relevant Regulations. By definition, they do not act on behalf of the chief officer, for otherwise the chief officer would be seen to be both investigating, supervising, reviewing and/or determining the outcome of a complaint against an officer.
42. In our judgment, the respective Regulations impose public law duties upon the respective officers to carry out their functions independently. This does not mean that officers who have complaints about the way in which an investigating or supervisory officer has carried out their duties have no remedy. It may be cumbersome, and less accessible than Employment Tribunal proceedings, but judicial review, citing the chief officer as defendant, is the appropriate remedy. See for example Ridge -v- Baldwin [1964] AC 40 and authorities stretching to R (Bennion) -v- Chief Constable of Merseyside Police [2002] ICR 136. In that case it was held as follows, per Judge LJ at paragraph 23:

"Police disciplinary proceedings plainly involve a quasi-judicial process. They must be conducted fairly. And it is expressly provided that the chief constable must disqualify himself, notwithstanding the obligation imposed by regulation 13(1), if he has any interest in the outcome of the proceedings which does not arise from his office, and the responsibilities vested in him as chief constable."

43. It is, in our judgment, inimical to the purpose of these Regulations for the chief officer to appoint junior officers to act on his or her behalf in disciplinary proceedings. Impartiality and fairness are required by each of the officers who are given duties and powers to exercise discretion at various stages during the conduct of the proceedings. They carry out their duties under the Regulations personally and not as the agent of the chief officer.
44. That disposes of those appeals based upon the Race Relations Act, where complaint is made against the chief officer in respect of the conduct by an investigating or supervising officer within the Regulations. What remains is the approach under the Sex Discrimination Act and the Equal Treatment Directive. In Baskerville in the EAT, a purposive construction of the words "an act done by him" in section 41(2) of the Sex Discrimination Act was adopted (see paragraph 28) to give effect to the Directive. The Court of Appeal did not find it necessary to decide the matter under the Equal Treatment Directive: see 2003 ICR 1463, 1474, paragraph 42.
45. An argument has now been put before us which was not fully developed before the EAT in Baskerville since this is based upon the judgment of the House of Lords in Rhys-Harper (above). In a careful argument Mr Mead analysed astringently the five speeches in Rhys-Harper. We accept his submission that their Lordships did not agree on the proposition that in order to construe a domestic measure so as to give effect to the purpose in a EU obligation, it was necessary to find ambiguity. Lord Nicholls at paragraph 48 did not deal with the Directive because he held it was unnecessary. Lord Hope held that there was ambiguity and used a purposive approach, see paragraphs 76, 106 and 114 - 116. Lord Hobhouse applied a more traditional (and non-EU) doctrine of purposive construction of an act of Parliament - see paragraph 137. Lord Scott declined to apply EU measures and Lord Roger disagreed with Lord Scott and followed Lord Hope in suggesting that ambiguity was necessary and present and the purposive construction would follow, see paragraphs 217, 219.
46. As can be seen from our approach to the statutory provisions, we have rejected the alternative construction advanced by the Applicants that agency is a concept of ordinary language. As we have great difficulty in accepting the scope and utility of such an alternative construction, we did not consider it was truly an alternative construction based upon reason. The difficulty of the Applicants in pinning down their alternative construction illustrates, in our view, that there really is no competing construction, as contended for. It is not enough simply to say: we want a less formal definition. So, we do not consider there is an ambiguity in the relevant provisions when they refer to agents and principals. On that basis, there is no room for the alternative construction based on a purposive approach to the Equal Treatment Directive, so as to include within its scope discrimination carried on by agents of a chief officer.
47. We would therefore reject the submissions that investigating and supervising officers under the 1985/1999 Regulations act as agents of the chief officer for the purposes of claims made under the 1975 and 1976 Acts.

The specific issues: the Miller cases

48. Turning to the individual cases, the Applicants in these proceedings are four white male police officers. They complain that following a complaint made by a female minority ethnic officer, they were subject to disciplinary procedures. The Tribunal said this:

"12 We were not invited to conduct an analysis of the cases as previously pleaded. The core concern raised by the Originating Applications is that, in an excess of 'political correctness', a …. determination had been made that those accused or suspected of discriminating against women or against those from ethnic minorities would be subjected to an investigative and disciplinary regime more rigorous and less fair than would be, and is, made available to those women or to those from ethnic minorities. As Miss Downing observed, in considering an application to strike out, the focus should be on the existence, or otherwise, of an arguable complaint and not on the sufficiency of the pleadings; the latter can be corrected by better particulars, the former can not.

13 Miss Chudleigh suggested that not every policy was to be laid at the door of the Commissioner himself and that, necessarily, many policies would be decided upon by officers of lower rank in the exercise of responsibilities vested in them. That may be so but it will be a matter of evidence and not a matter for submissions. If there be a policy to the effect complained of, and under which each applicant is said to have suffered a detriment, the probability must be that it will originate at a very high level in the Metropolitan Police, if not the highest. If the evidence were to show that such a policy does originate with the Commissioner at a level within his direct chain of command, there may be a case to answer."

49. The Tribunal declined to strike out the Originating Applications. On behalf of the Respondent it is contended on appeal that the Tribunal should have confined itself to the pleaded case since there is no allegation of a discriminatory regime, promoted by the chief officer, of "political correctness". At our request, Miss Downing, for these Applicants, produced a definition of political correctness as follows:

"An undue sensitivity to, and concentration upon, the sex, race, sexual orientation or disability of a person which dictates, influences or affects the way in which another person deals with, responds or otherwise behaves towards that person, such action being done out of an excess of caution that offence may be caused to the person on grounds of their sex, race, sexual orientation or disability, such sensitivity tending to obscure the facts of any given situation and usually leading to a decision which does not reflect the true merits of that situation."

50. On behalf of the Respondent it is contended that the pleadings do not include a general allegation against the chief officer for promoting such a policy.
51. In Chapman -v- Simon [1994] IRLR 124 CA it was held that the jurisdiction of an Employment Tribunal is limited to complaints which have been made to it. Generally speaking, the case will be that established by the Originating Application and refined into specific issues at a hearing. The Originating Application in the present case, it is said, makes allegations about the conduct of the investigating officer and so would fail. But the case could proceed if the allegation were made against the chief officer personally, or in respect of management decisions relating, for example, to the way in which complaints of discrimination were to be instituted, according to the Applicants, over-zealously.
52. In Housing Corporation -v- Bryant [1999] ICR 123 CA the Court of Appeal considered an appeal from a Chairman's exercise of his discretion to allow an amendment. Buxton LJ held that this was a matter not of legal construction of the Originating Application but of reality

"This was not a separate legal issue but merely part of the Chairman's assessment of the reality of the claim, an assessment that can only be interfered with by the Appeal Tribunal, or by this Court if it was perverse."

53. In our judgment, the summary of the issues in the case given by the Employment Tribunal cited above indicates the Tribunal's approach to the assessment of the reality of the claims. The members of the Tribunal plainly saw that there was within the claims an allegation that there was a culture of political correctness which the Applicants should be allowed to argue as emanating from the chief officer. The exchanges between Counsel cited in that passage reveal recognition by the Respondent of the argument to be made against him. That is a correct approach to the decision made in this case and no question of law arises from that assessment of reality. This part of the appeals is dismissed.

The specific issues: the Husain case

54. The Applicant is of Pakistani origin, who spent most of his life in the UK. He was aged 40 at the date of the hearing. He had been a police constable with the Respondent since 1982. He passed his sergeant's exams in 1996 but was not promoted. He was anxious to gain experience for this purpose and sought to join the Respondent's pro-active Licensing Unit. This is a unit which deals with crime in licensed premises. The Applicant's complaint before the Employment Tribunal that the Respondent had discriminated against him on the ground of race, by delaying his transfer to that unit, was rejected. There is no appeal. His complaint that Sergeant Townson, an officer in that unit, used racially discriminatory language in August 1999, was also dismissed. There is no appeal.
55. The Tribunal heard evidence from 23 witnesses and the Applicant. The principal witnesses who figure in this case are Chief Inspector Gittins, Inspector McDermott, who was the investigating officer pursuant to the 1999 Regulations, Inspector Jones, Sergeant Townson, Mr Robinson, the Director of Personnel and Development of Merseyside Police, Constable Wilkinson, the Applicant's police partner while on duty in the Licensing Unit on 15 September 1999, Superintendent Hester and Assistant Chief Constable Love.
56. In this appeal, the Respondent contends that the Employment Tribunal, in upholding two out of four of the Applicant's complaints of victimisation, made errors of law. The points can be summarised, together with our conclusions, as follows:

a. Delay. There was unacceptable, but non-actionable, delay of nine months between the oral hearing of evidence and the hearing of submissions following an agreed adjournment.

b. The parking ticket issue. The case put by the Applicant was quite different from that upon which the Tribunal adjudicated. By reference to the chronology, and to other matters, the Tribunal's decision that the Respondent victimised the Applicant, following the parking ticket issue, cannot be supported. There is also reference here to our decision above relating to the discipline regulations and the agency point. Whether because of the delay, or otherwise, the Tribunal made fundamental errors in its understanding of the evidence, particularly of the chronology in relation to what we will call the "parking ticket issue".

c. The Robinson issue. This complaint of victimisation, directed at Mr Robinson, does not fail by reason of the application of our decision above relating to agency. Mr Robinson was the agent of the Respondent. Nor do we see the same kind of misunderstanding of the facts by the Employment Tribunal as we find in relation to the parking ticket issue. Nevertheless, in our judgment the Tribunal failed in considering potentially relevant explanations, not based upon discrimination, and failed to give an adequate explanation of why it rejected them.

(a) Delay

57. The incidents complained of took place in 1999 and 2000. The Tribunal heard this case over twelve days between 27 June and 18 July 2001. The Applicant was represented by Mr Sadiq of Counsel and Ms Griffiths represented the Respondent. At the request of the Tribunal, full written submissions were lodged and exchanged on 31 July 2001. There were further exchanges between the parties and the Tribunal, and on 17 December 2001 the Tribunal met in Chambers. The parties asked the Tribunal to await the judgment of the Court of Appeal in Liversidge. Evidence has been put before us, and the Chairman has written, following a direction from the EAT, to explain what happened on that day. From this material we find as a fact that the three members of the Tribunal made the substantive decisions in this case on that date, subject to argument on Liversidge. Notes were made of this decision but neither party has requested them nor has the Chairman sent them to us.
58. The last oral hearing in our case was on 23 May 2003. The Decision with Extended Reasons was sent to the parties on 29 August 2003, two years and one month after the last oral evidence and one year eight months after the decision was made (subject to Liversidge). As all parties accept, the initial reason for delaying the Decision was that the judgment of the Court of Appeal in Liversidge was awaited. This was given on 24 May 2002. The parties also became aware of McGlennon decided on 15 July 2002..
59. The Respondent contends that this delay has been the reason for what are described as fundamental misunderstandings of the facts. The memory of the evidence must have faded, Ms Griffiths submits. The Chairman should have recorded the reasons and either sent them to the parties in draft form, or kept them on the file pending only a decision on the law, once Liversidge and McGlennon were determined. Thus Ms Griffiths contends that by early August 2002 the Tribunal ought to have heard argument as to how these authorities were to be applied in the instant case. As it transpired, it did not hear these arguments until its final hearing on 23 May 2003, when no evidence but submissions on law were heard.
60. On behalf of the Applicant, it is contended that the Respondent acquiesced in certain periods of delay. Some were the subject of agreement, e.g. in 2001 and 2002 pending judgment in Liversidge and (it is accepted) McGlennon. After that the Respondent took no steps to stimulate the Tribunal to reconvene the hearing. It is also contended that the Tribunal did not make such fundamental errors in its understanding of the facts.
61. In Mitize -v- Birmingham City Council UKEAT/0564/03 Burton P and members delivered judgment in a series of cases on 2 March 2004, which all illustrated problems associated with delay. The principles were laid down as follows:

"4. It has of course always been a fundamental principle of the common law concept of natural justice that trials must be fair, and the fairness of a trial must include and be reflected in the absence of any excessive or avoidable delay by the Tribunal. This however is now enshrined in the right to a fair trial in a reasonable time expressly provided for in Article 6 of the European Convention for the Protection of Human Rights, now incorporated into domestic law by the Human Rights Act 1998, which provides:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

5. Lord Hope in Porter v Magill [2002] 2 AC 357 made it clear (at paragraph 108 of his speech)

"that the right in Article 6 (1) to a determination within a reasonable time is an independent right, and that it is to be distinguished from the Article 6 (1) right to a fair trial"."

62. The EAT also considered the jurisprudence of the European Court of Human Rights in a series of cases following Konig v the Federal Republic of Germany [1978] 2 EHRR 170. In assessing the effect of delay in any particular case, the factors are the complexity of the case, what is at stake, the conduct of the parties and the conduct of the judicial tribunal. Where there has been delay at the outset, the Tribunal should strain to avoid any further delays (see paragraph 7). In all Courts within England and Wales, the obligation is upon judicial officers to produce judgments within three months of the oral hearing, or of the last in a sequence of later submissions. Slightly greater flexibility is given to Employment Tribunals and the EAT, since they are tripartite judicial bodies, dependent on part-time lay members and sometimes part-time Tribunal chairmen and EAT judges. The long stop is three and a half months, beyond which there is delay and it is culpable (see paragraphs 8 and 9).
63. The principle of law to be obtained was cited by Burton P as follows:

"13. The state has a duty under Article 6 in respect of both a fair trial and there being (and concluding by a judgment) a hearing within a reasonable time. But where an unsuccessful party brings an appeal based upon delay in the delivery of the judgment, the question is whether the party who lost has been deprived of a fair trial by virtue of that delay in judgment – i.e. such party must show that the result was unsafe as a consequence of the delay (and similarly the successful party will not be deprived of its success, notwithstanding a delay, unless the decision in its favour was unsafe as a result of the delay)."

….

"15.1 The Appellant will need to invite the appellate court to examine the delayed judgment for any sign of error due to faulty recollection. The party impugning a judgment will need to show a material error or omission (if only one, then it would need to be the more significant) or a series of material errors or omissions. Material in this context does not mean material in the sense of an independent ground of appeal i.e. necessarily central to the decision and indicating an error of law or such error or errors of fact as to amount to perversity, but material in the sense that, taken separately or together, it or they show a real risk that there has been a failure of recollection, so as to establish that the decision is unsafe by virtue of the delay.

15.2 Such causation is essential. The appeal must not be allowed, just because of the judgment being a delayed one, to degenerate into an impermissible appeal based upon an alleged error or errors of fact, as a result of what Lord Scott called "trawling" through the judgment. It plainly should not open the door, of itself, to allowing a second bite at the cherry, or certainly to a remission to the employment tribunal for the purpose of allowing a better job to be done by the losing party, second time around. We are satisfied, notwithstanding Lord Scott's use of the words "probably or even possibly", that, given the consequence for the parties of setting aside the judgment, the appeal tribunal must be satisfied on the balance of probabilities that the unsafeness is due to the delay. If the unsafeness of the Decision due to the delay is established, then that is an independent ground of appeal, and the delay will have infected and rendered unsafe one or more of the bases in law for the tribunal's decision. The error or errors must be due to the delay, and cast doubt upon the decision or part of the decision."

64. There are occasions when a Chambers discussion between the members has occurred following the oral hearing. These circumstances were provided for also in the judgment in Mitize where the following appears:

"However it may, in a particular case, be clear that there was a chambers discussion soon afterwards, and that the decision was then finally arrived at and recorded in all but final form, subject to tidying up or to typing, and that delay thereafter was due to incompetence or oversight. In such a case, although a great deal of anxiety and irritation will have been caused to the parties, the decision, and the recollection upon which the decision was based, will have been crystallised, and the delay thereafter will be of no materiality. Such a possibility only emphasises the need, to which we have referred above, in the unhappy and, we hope in the future, unlikely event of these kind of delays continuing to occur, notwithstanding a system of follow-up of outstanding judgments by the Tribunal administration, to which we shall refer, for the parties, or their legal representatives, to chase the Employment Tribunal in respect of delayed judgments ….."

65. The impact of this judgment and the authorities cited in it is that the party complaining of delay must show "delay plus", i.e. some reason for thinking that the decision is unsafe, demonstrated by errors of fact or errors in recording submissions, from which an inference can be drawn that the passage of time has caused memories to fail and impressions to fade. Thus a series of factual errors, not singly or even in aggregate amounting to grounds for launching a perversity appeal, may support a submission that the decision should be set aside, and the case be re-heard, for these errors can only have occurred because the Tribunal must, over the passage of time, have lost its control of the facts.
66. Applying those principles in the instant case, we cannot accept the Respondent's contention that delays prior to the beginning of August 2002 are culpable. They were for the most part agreed, and sensibly agreed, this case falling as it did in the shadow of Liversidge, and, as it turned out, McGlennon. The Decision was registered within the three and a half months allowed now by Mitize, and that period was not culpable delay.
67. There is, however, substance in the Respondent's contention that the case should have been restored shortly after August 2002, when it did not occur until May 2003. The Respondent must accept some of the responsibility for failing to chase the matter for he was after all holding the trump card, marked Liversidge. But we consider there was unacceptable delay by the Tribunal in re-fixing the hearing.
68. This would not have been a problem had the Tribunal Chairman recorded the Reasons for the Decision in December 2001, rather than simply taking notes of the Chambers discussion, even if they were not promulgated. On an enquiry by the Respondent's solicitor, the Chairman said on 1 August 2003, apologising for the delay, that she had had to refresh her memory of the evidence. On 5 January 2004, the Chairman told us that she was reviewing the evidence in August 2003. In our judgment, that does not meet the guideline suggested in Mitize of a Chambers discussion, with a decision being made subject only to tidying up and typing. It was of course necessary for the Chairman and members to review the evidence, following the submissions in May 2003, so as to apply the law in Liversidge and McGlennon to the evidence in the case.
69. In our judgment, the combination of delays in this case all pointed towards an expeditious despatch of the Decision and Extended Reasons. The period on which our attention is focused is August 2002 to 25 May 2003, which is more than nine months. It must be borne in mind that this is not a case of delay following the end of the hearing, but rather of delay in re-fixing a date for a hearing adjourned on proper and agreed grounds. The Respondent was partly at fault and, it must be said, so was the Applicant, but of course this ground of appeal is advanced by the Respondent. The Tribunal should have taken more pro-active steps to list the case, and if it had, it would have been hearing new submissions a little over a year after the close of the oral evidence and written submissions in 2001 - themselves already between one and two years after the relevant events took place - rather than something closer to two years. The Chairman could have drafted reasons to be kept on the file in December 2001. Since the conduct of the parties is a relevant consideration, we hold that their conduct, or at least the Respondent's, in failing to ask the Tribunal to re-fix the hearing for nine months reduces delay from culpable to unacceptable. This case is unusual in that the need for an adjournment was caused by another case, and the timing of its re-fixing was dependent on that external matter.
70. The principles in Mitize are to be observed where there is any critical delay in Employment Tribunal proceedings but it is worth noting that, at a delayed adjourned hearing, the Tribunal reassembles with the parties and representatives, faces can be recognised and fitted to the notes of their evidence, questions asked, clarifications sought and if need be witnesses can be recalled, features which do not apply when a hearing is over. Everyone engaged in litigation which is not continued until its end knows how quickly recollection fades from the perfect to the dangerous. Adjournments should be avoided by planning and case management and any necessary adjournment should be kept to a minimum period. An adjournment or a stay should be ordered for a finite period, at the end of which the order must be reviewed and if then appropriate renewed. If, as here, the adjournment is in order to await the outcome of other proceedings, especially when the present parties are not involved, the Tribunal should order one or all parties to keep the Tribunal informed of developments in that other case: it may settle, be withdrawn or reach judgment and be given permission to appeal. A new order is required at each stage so that the delay is kept under review. If the facts have been heard and submissions made, subject only to a legal ruling, it is advisable for Reasons to be drafted albeit not promulgated. The guiding principle in any decision to adjourn is that it delays a result and delay is the enemy of fairness in this jurisdiction where time limits are short and practical remedies quickly go to waste.
71. Having rejected the Respondent's appeal on delay, we do not need to consider whether the Decision is unsafe. But, on the parking ticket issue, the Tribunal has made fundamental errors in its understanding of the evidence.

(b) The parking ticket issue

72. At 16.20 on 14 September 1999, the Applicant and Mr Wilkinson drove an unmarked police car into a pay-and-display parking bay, controlled by Liverpool City Council. They did not pay. They visited licensed premises in pursuance of their duties. At 16.30 a fixed penalty notice was issued and affixed to the car. It was on the car when the officers returned from the licensed premises shortly thereafter. At 16.35, without moving the car, they stopped and searched two males. The practice of the Merseyside Police is that if the vehicle had been parked without a ticket because the officers were operational and chasing suspects, no fine would have been payable. On that day, the visit to the licensed premises was not classed as operational, and therefore a payment should have been made to park in the parking bay, and, if not, there was no defence when the fixed penalty notice was submitted.
73. On 16 November 1999 a statutory notice was received by the Vehicle Fleet Manager of the Respondent, who put en train instructions to trace the driver and ensure that either the fine was paid or a defence was submitted by 29 November 1999. On 25 November 1999, Sergeant Townson identified the Applicant as the driver and forwarded the Fleet Manager's memorandum to him.
74. Between 25 November and 2 December 1999, the Applicant submitted a report to Sergeant Townson giving his explanation. This explanation differed from Mr Wilkinson's. The Applicant refused to pay. Mr Wilkinson cited the chronology which we have described above. Mr Wilkinson accepted the logic of the practice in a report given orally to Sergeant Townson and offered to pay 50%. The original penalty was £20 but it had increased because it was not paid forthwith.
75. By 2 December 1999 Sergeant Townson therefore had two accounts of the circumstances and he wrote a memo to the Area Commander which said as follows:

"The above fixed penalty was issued to an unmarked police vehicle registered number P454HWM when it was parked in a council run pay and display parking bay in Stanley Street on 16^th September 1999. It is an offence to fail to pay the charge or supply details of the driver within fourteen days. The fixed penalty was not paid and Liverpool City Council has issued a notice under Section 108 of the Road Traffic Regulation Act, requiring Merseyside Police to provide details of the driver at the time of the offence.

As a result of enquiries I have identified Constable 7075 HUSAIN as the driver of the vehicle. Constable HUSAIN has indicated that he is not going to pay the parking fine as he was engaged pressing enquiries. He has now submitted a report regarding the matter. [Attached] and signed the statutory notice.

On my instruction Constable 1267 WILKINSON, who was a passenger in the vehicle, has completed a duty statement regarding the incident. This statement is also attached. The statement differs from Constable Husain's version of events.

I take the view that Constable HUSAIN should have purchased a parking ticket for the vehicle and in any case paid the excess charge immediately, when the charge would have only been £20. I see no reason why Merseyside Police should stand the increased cost of the ticket and suggest that the statutory notice be forwarded to the City Council for them to pursue.

I submit this report for your attention."

76. The Applicant commenced proceedings on 13 January 2000, complaining of the delay in transferring him and of the racist language of Sergeant Townson. On 2 February 2000 an additional claim relating to the fixed penalty notice was presented, alleging victimisation on grounds of having made the complaint against Sergeant Townson relating to racist language.
77. The Tribunal found that the Respondent could not be responsible for any racist language used by Sergeant Townson, following Liversidge (above), but it had in any event decided that such language was not race discrimination, so this complaint failed. However, the Tribunal decided as follows:

"Sergeant Townson, as a supervisor, was dealing with discipline and chose to forward the report to the area commander, rather than give the applicant a full opportunity to explain himself and the Tribunal is satisfied that this was because the applicant had complained about alleged race discrimination by Sergeant Townson. The decision to discipline must be within management parameters. Similarly the Tribunal is satisfied that in dealing with personnel matters such as the disciplining of civilian workers, Mr Robinson was acting as agent for the respondent under section 32(2) of the 1976 Act. The Chief Constable had delegated his authority to Mr Robinson to maintain discipline among civilian workers and in those circumstances again it was part of the management role of the Chief Constable and the Tribunal finds that he can be held liable for those matters. The Tribunal therefore has jurisdiction to hear those claims."

78. Before the hearing of these matters, a further incident occurred: the Robinson issue.
79. A superficial view of this case is that the Applicant was disciplined for failing to pay a parking ticket. This, however, would be a serious misunderstanding. The Respondent took action because of the Applicant's account of what had occurred on 15 September 1999. His account was materially different from that of his police partner, Constable Wilkinson. The chronology was elementary. The Applicant was not engaged on operational duties when he parked the car; when he returned, the fixed penalty notice had been affixed. Thereafter he and Constable Wilkinson became engaged in operational duties. That was Constable Wilkinson's account, which was accepted at one stage by the Applicant. Thus there was an issue of integrity, as the senior officers, put it concerning the Applicant's conduct which was subject to the 1999 Regulations.
80. So when the Tribunal recorded the following ……

"The Applicant incurred a fixed penalty notice as a result of following a suspect with Constable Wilkinson"

it misunderstood the evidence which was, as Constable Wilkinson described it and as we have summarised it above. The Tribunal noted that the matter then became a matter of integrity, for the two accounts differed.

81. The Tribunal went on to find:

"that the disciplining of the Applicant for failure to pay a fixed penalty notice was victimisation".

That again is a misunderstanding of the evidence of five of the senior officers whose stance was that the Applicant was disciplined not at all for failing to pay the fixed penalty notice, but for giving a false account of the reason for incurring the fixed penalty in the first place. If the Applicant and Constable Wilkinson had been following suspects, they would not have been liable to make the payment. They were not following suspects at the time the car was parked, for they were making enquiries in a local pub. The Applicant admitted that Constable Wilkinson's version was correct and thus when he later denied it, there was an inconsistency which reflected on his integrity. The Tribunal failed to record the thrust of Constable Wilkinson's explanation given to Sergeant Townson, coupled with Constable Wilkinson's offer to pay 50% of the fine.

82. As a result of this inconsistency in the Applicant's account, an integrity issue arose, according to the Respondent's case, which had to go through the 1999 Regulations. The Tribunal again failed to recognise this aspect of the Respondent's case, reflected in the chronology when it found that the Respondent had shown no acceptable reason for taking disciplinary proceedings against the Applicant. This illuminates why the Tribunal made its decision that there had been no explanation by the Respondent of any officer being disciplined for failing to pay a fixed penalty notice.
83. We accept the Respondent's submission that that represents a fundamental misunderstanding of the evidence before the Tribunal, for we accept the extract from the notes taken by the Respondent's solicitor, concerning an exchange between the Chairman and Counsel for the Respondent, where the Chairman acknowledged that the issue on the account given by the Applicant to Sergeant Townson was being put as "falsehood". As far as the Respondent was concerned, the material was put before the Tribunal and acknowledged to have been so put. That firm evidence is quite different from the finding by the Tribunal in its written reasons.
84. The second aspect of this ground of appeal relates to the Tribunal's finding about the disciplinary proceedings flowing from the parking ticket issue. We consider the Tribunal made three errors.
85. First, the Tribunal found that the way in which disciplinary proceedings started was by a decision by Sergeant Townson. That however was not the way in which the case was put in the Originating Application. In this, second, Originating Application, the complaint is made of action started on 27 January 2000, with the presentation of discipline papers by Inspector McDermott, in respect of the parking ticket matter. On the Applicant's enquiring, it was confirmed that it was Superintendent Hester who had made the complaint, in response to which the Applicant said: "This was being raised now as a result of a complaint I had made". As a result he feared to return to work under the command of Mr Hester. Thus the charge was formally made on 27 January 2000 of falsehood in the account he gave of the parking ticket issue. This was signed by Inspector McDermott, the investigating officer, pursuant to Regulation 9 of the 1999 Regulations. In our judgment, the Tribunal erred in adopting the Applicant's oral complaint about Sergeant Townson, when this differed markedly from his Originating Application.
86. Secondly, the Tribunal was led into error in deciding that it was Sergeant Townson who started the disciplinary process. He was not the instigator. The proper construction of the memo he wrote on 2 December 1999 is not a complaint but simply a response to an enquiry raised about the parking ticket. He correctly points out that the written statement of the Applicant's version of events differs from that of Constable Wilkinson. Far from taking the view that the Applicant should have been disciplined, the highest that it can be put is that Sergeant Townson was recommending a conciliated settlement of the matter, i.e. that in accordance with Constable Wilkinson's offer, both men share the fixed penalty. Given that the 1999 Regulations prescribe, as we have set out above, a very formal process, the action of Sergeant Townson could not be construed as falling within it.
87. Thirdly, and in any event, the premise upon which the complaint against Sergeant Townson is based is, in our respectful opinion, wrong. The Applicant's complaint, as recorded by the Tribunal was that Sergeant Townson, by reason of the Applicant having made complaints about racist language uttered by him, decided to launch the parking ticket issue. It was not contended by the Applicant that Sergeant Townson had victimised the Applicant because he had made a complaint about his delayed posting. Sergeant Townson made his report on 2 December 1999 and the Applicant first complained about him on 5 December 1999. Since the Applicant's complaint about Sergeant Townson was required to be put through the 1999 Regulations procedure, we accept the contention by the Respondent that Superintendent Parry, who was appointed as investigating officer into that matter, received his appointment on 7 February 2000 and Sergeant Townson would not have been notified of the complaint against him until some time thereafter. Thus a simple reflection on the chronology in this case indicates that the Tribunal misunderstood the evidence relating to it. This ground of appeal must succeed at least on the basis that victimisation could not have occurred on 5 December 1999. These, in our judgment, are fundamental errors and may well have been contributed to by the delay in these proceedings.
88. Any complaint against Mr McDermott or other officers apart from Sergeant Townson, acting according to their duties under the 1999 Regulations, are affected by the earlier part of this judgment and they are not agents of the Chief Constable.

(c) The Robinson issue

89. This issue is not affected by criticisms based on delay, since no factual error has been relied upon.
90. On 17 October 2000 the Applicant attended a disciplinary hearing conducted by Mr Robinson of a black civilian employee of the Merseyside Police Authority. The Applicant was at the time a National Executive member of the Merseyside Black Police Association. As such he was given certain time off for what could probably be described as trade union duties. The procedure applied by Mr Robinson had only recently come into existence. The hearing was particularly sensitive. There had been no precedent for a member of the Black Police Association to attend a disciplinary hearing of a civilian support worker. This worker had asked for his attendance. Mr Robinson agreed.
91. The Applicant complained that during the introductions at the outset of the hearing, Mr Robinson used an aggressive tone to him and emphasised that the Applicant was present only as an observer and was to take no active part or to take notes. The Applicant challenged Mr Robinson's brusque tone and Mr Robinson did not apologise, but simply emphasised the Applicant's (limited) role. He accused the Applicant of being too sensitive.
92. The Tribunal heard evidence from another officer, Constable Solaru, to the effect that Mr Robinson had previously been brusque and aggressive towards the Applicant. He, Constable Solaru, had spoken to another officer, Inspector Bullen and Inspector Bullen was said to have spoken to Mr Robinson about this conduct towards the Applicant. The Tribunal accepted this account by Constable Solaru for it said this:

"The Tribunal accepted Police Constable Solaru's evidence that Inspector Bullen had stated to P C Solaru that Mr Robinson did this because Mr Husain had made a complaint of racial discrimination against the Force."

93. The Tribunal found that Mr Robinson had singled out and embarrassed the Applicant because he had claimed race discrimination against the Respondent. This constituted less favourable treatment on the ground that the Applicant had done a protected act and thus was victimised. The Tribunal went on to find that Mr Robinson, although not directly employed by the Respondent, did what he did as an agent of the Chief Constable in organising and dealing with personnel matters. We were told at our hearing that there are some 4000 police officers and 3000 support staff within the Merseyside Constabulary, the former being engaged by the Respondent and the latter by the Police Authority.
94. On behalf of the Respondent it is contended that Mr Robinson was engaged on matters for which he cannot be characterised as the agent of the Respondent. As the Court of Appeal said in Baskerville, the relationship of agency is not created by the statute but has to exist in some form so that the consequences of the agency are those determined by the statute.
95. Mr Robinson's role, it will be recalled, was the subject of written submissions in 2003. It was suggested he was not an agent. It is important to understand the material which was before the Employment Tribunal on this issue. When he was called to give evidence he said "I am employed by the Merseyside Police as Director of Personnel and Development". In his second witness statement he asserted:

"The senior and comprehensive level of support organised for Constable Husain is unprecedented and demonstrates the degree of commitment from not only me but all of the Chief Officers in trying to ensure Constable Husain's endeavours were successful".

96. The Notice of Appearance began with the following:

"The Respondent is the Chief Constable of Merseyside Police ….The Respondent's Director of Personnel and Development, Mr Robinson properly and appropriately emphasised the limits of the Applicant's role …."

However, the Tribunal noted that Mr Robinson was not directly employed by the Chief Constable but by the Merseyside Police Authority. It found that he acted "as an agent for the Chief Constable in organising and dealing with personnel matters".

97. Before us, once what all Counsel accepted were difficulties in construing the Court of Appeal's judgment on this issue in paragraphs 32-33 of Baskerville, it was sought to put material before us indicating what was the basis of the relationship of agency contended for. The above matters were referred to and new material which we resisted as it could have been adduce at the Tribunal. In our judgment the Employment Tribunal cannot be faulted in its assessment, knowing that Mr Robinson was not employed by the Respondent, that he was nevertheless his agent for the purposes of carrying out disciplinary proceedings in respect of civilian employees. With a civilian workforce of this size, it is to be expected that the Respondent will give instructions to their managers in a range of different situations. For example, when he asks his secretary to book a train ticket to London, he or she would act on the Respondent's behalf, notwithstanding that the formal contract of employment is with the Merseyside Police Authority.
98. In our judgment, a similar result would be achieved in the instant case had it been decided on the principles of McGlennon. It must be part of the Respondent's responsibilities that managers are in place to handle disciplinary matters relating to civilian employees. The Tribunal was correct to hold that an agency relationship was established between the Respondent and Mr Robinson.
99. The next question is whether the Tribunal erred in law in holding that Mr Robinson victimised the Applicant. It is necessary to place in context the legal approach to this kind of claim. The situation is fully described in the judgment of the EAT, in The Law Society -v- Bahl where the following observations are made by Elias J.

"85 "in deciding whether there has been discrimination. the Tribunal must consider the totality of the facts. ….Where there is a finding of less favourable treatment, a Tribunal may infer that discrimination was on the proscribed grounds if there is no explanation for the treatment or if the explanation proffered is rejected: see the comments made by Neill LJ in King v Great Britain-China Centre [1992] ICR 516, approved by the House of Lords in Glasgow City Council v Zafar [1998] ICR 12 (Neill LJ said in fact that the inference may be made where the explanation was inadequate or unsatisfactory, but it is in our view clear, and in accordance with the principle in Zafar ... that he was envisaging an explanation which was inadequate or unsatisfactory in the sense that the Tribunal did not accept it as genuine ….

94 Lord Browne-Wilkinson continues ".....Indeed, it is the human condition that we all at times act foolishly, inconsiderately, unsympathetically and selfishly ... It is, however, a wholly unacceptable leap to conclude that whenever the victim of such conduct is black. .. then it is legitimate to infer that our unreasonable treatment has been because the person was black. … not all unreasonable treatment is discriminatory ... In order to establish unlawful discrimination it is necessary to show that the employer's reason for acting was one of the proscribed grounds. ...

96 We do, however, respectfully accept, that Sedley LJ was right to say that racial bias may be inferred if there is no explanation for the unreasonable behaviour. But it is not then the mere fact of unreasonable behaviour which entitles the Tribunal to infer discrimination; it is not, to use the Tribunal's language, unreasonable conduct "without more" but rather the fact that there is no reason advanced for it. Nor in our view, can Sedley LJ to be taken to be saying that the employer can only establish a proper' explanation if he shows that in fact he behaves equally badly to members of all minority groups. The fact that he does so will be one way of rebutting an inference of unlawful discrimination even if there are pointers which would otherwise justify that inference.

113 There is an obligation on the Tribunal to ensure that it has taken into consideration all potentially relevant non-discriminatory factors which might realistically explain the conduct of the alleged discriminator. As Lord Nicholls put it, prima facie there is a factor which distinguishes the two situations, then that may well be the non- discriminatory reason for the treatment, unless the evidence indicates otherwise. If the Tribunal do not recognise the potential significance of such a factor, then their decision will be flawed because they will have failed to take into account a potentially material characteristic or characteristics which could conclusively explain, on non-disciplinary grounds, the difference in treatment between the applicant and the hypothetical comparator. A Tribunal cannot properly reject such potentially relevant explanations without considering them and having a proper evidential basis for rejecting them.

166Where there is an obvious explanation for treatment, then the Tribunal ought to indicate in its reasoning that it has recognised that fact and it should set out those considerations which have led it' to the conclusion either that other discriminatory conditions have wholly displaced the obvious explanation, or at least have justified the conclusion that the obvious explanation is not the only explanation and race and sex considerations have also played a part in that decision".

100. On behalf of the Respondent, it is contended that the Tribunal erred in its approach to the competing explanations. The Tribunal held that evidence had been forthcoming from the Applicant of Mr Robinson's brusqueness. This is an error because there was evidence called by the Respondent by way of explanation for the treatment of Mr Robinson of others in the same way as he treated the Applicant, and which was not by reason of the Applicant having done a protected act. The Tribunal found that the conduct of Mr Robinson singled out the Applicant for embarrassment, which constituted less favourable treatment, and which was done because the Applicant had made a complaint of race discrimination. But the primary facts upon which this finding is made appear to us to be difficult to understand.
101. In the passage we have cited at paragraph 90 above, the Tribunal is relying upon a report by Mr Solaru of a conversation with Mr Bullen in which Mr Bullen reports the words of Mr Robinson. This is hearsay upon hearsay. Further, it incorporates an opinion of Mr Bullen. It is of course true that an Employment Tribunal is not bound by strict rules of evidence, but this is the sole primary fact found to justify the substantive decision on the Robinson issue. In our judgment the Tribunal failed to apply the principles in Zafar in distinguishing between conduct which is unreasonable and conduct which is based upon unlawful discrimination. The former does not shed light on the latter. An explanation for Mr Robinson's conduct was forthcoming from other officers' evidence called by the Respondent, that he was brusque.
102. It must be borne in mind also that the procedure adopted by Mr Robinson was being operated for just about the first time. It was a particularly sensitive case. The Tribunal failed to make any finding about the evidence of Mr Robinson that he had gone to some lengths to recognise the Black Police Association and the Applicant's role in it, including on this occasion the Applicant's unique role at the disciplinary hearing of a civilian. In our judgment the Employment Tribunal did not provide sufficient primary facts upon which an inference of discrimination could be founded and the appeal against its Decision is allowed.

The specific issues: the Kochar case

103. Little attention was dedicated by either Counsel to the specific issues raised by this case. We will take it that the parties rely on such general submissions as were made and their Skeleton Arguments. Mr Kochar's case was dismissed on the basis that what remained of his case after Liversidge did not sufficiently plead a McGlennon argument. The issues in respect of his case were agreed to be as follows:

"11 Whether the Applicant's case was sufficiently particularised to permit an agency argument to be run in accordance with the case of Chief Constable of Cumbria v McGlennon [2002] ICR 1156, or whether the Employment Tribunal erred in finding that wholly new factual allegations would have to be pleaded by way of amendment to sustain an agency argument, applying Selkent Bus Co Ltd v Moore [1996] IRLR 661;

12 Whether the Employment Tribunal acted improperly in striking out the Applicant's claim in breach of natural justice by relying upon arguments where the advocate was not given an opportunity to address the Tribunal;

13 Whether the Employment Tribunal erred in law by failing to permit the Applicant to provide further particulars by way of amendment to the Originating Application.

14 Whether the Employment Tribunal failed to give adequate reasons for the determination it made;

15 Whether the Employment Tribunal failed to have regard to section 4 of the Race Relations (Amendment Act) 2000 in considering the acts complained of by the Applicant"

104. Following the oral hearing, an agreement was emailed to us by Counsel on 18 May 2004 as follows

It was agreed that the following allegations remain to be resolved by the Employment Tribunal (should the Respondent succeed on the primary point):

(a) The allegations against DCI Heath at paragraph 5 of the details of complaint;

(b) The allegations against Superintendent Aitcheson in the first sentence of paragraph 7, on the basis that the Superintendent was not acting as an Investigating Officer;

(c) The allegations at paragraph 18 of the details of complaint, the Applicant agreeing to provide further particulars of what is alleged to be the failure to act giving rise to discrimination and by whom (understood to be allegations of a failure to notify or respond to the Applicant in relation to the course of the investigation, and a failure to notify the Applicant of the outcome of the grievance complaint lodged by the Applicant (and not the Applicant's wife as mentioned in paragraph 17 (to be clarified and confirmed by the particulars));

(d) The allegations at paragraph 23: comprising two elements, namely the delay in re-instating the Applicant, the period of delay being from 2nd April 2001 on wards (upon the coming into force of the amendment to the RRA), and the alleged discriminatory conduct in giving words of advice.

105. We are content to allow the appeal to the above extent, on the footing that we have already decided the agency issue against Mr Kochar. We accept the agreement of experienced counsel to this appeal being allowed in these terms. We would normally give a short judgment since we are in part overturning a decision of a Chairman by consent. We hope we can be forgiven at the end of this long judgment for not so doing, both because the case is to go on to a hearing on the merits, and because we heard no argument on these points. The agreed terms seem to us to be correct.

Practice

106. At the opening of this appeal we directed some comments on its preparation and said this. On 29 March 2004 Ms Omambala sent a letter to the EAT which was lodged on 30 March, indicating her reasons for failing to serve and lodge a Skeleton Argument. She includes in her reasons a wholly acceptable reason, which is having an injury requiring treatment, and others with which we are less sympathetic, that is that she has been fortunate to have been engaged as Counsel in a large number of other hearings outside London. That, of course, requires practice management by her and her clerk. It is not an excuse for failing to comply with the directions which were given in her presence on 19 December 2003 and to which she agreed.
107. As is well known by the community which uses this Court, Judges and Members are expected to have read the papers. In a particularly complex case, a Skeleton Argument is critical. Ms Omambala, who is opening this four-day case on behalf of the majority of the Applicants, and leading the attack on the decisions is in a pivotal position, and therefore, for the understanding of her case, a Skeleton Argument was and is very important. The Lay Members who sit part-time in this Tribunal have to find time themselves to read the papers; the Judges, who are either full time or part time absorb that because provision is made for reading time.
108. Our preparation of this case was hampered by the absence of Ms Omambala's argument. It is unsatisfactory, particularly in a case of such importance as this, and lasting four days, for a Skeleton Argument to be delivered the day before, in breach of specific directions and the Practice Direction. Word should go out among our little community here that it is for the benefit of the parties and the saving of costs, not for the convenience of the Tribunal, that Skeleton Arguments must be produced in accordance with directions.

Disposal

109. We are grateful to all four counsel for their submissions. We will canvass the form of Order with Counsel which is to be drafted to give effect to the above judgment.