Chief Constable of Kent Constabulary v Bowler (Race Discrimination) [2017] UKEAT 0214_16

MRS JUSTICE SIMLER DBE

Introduction

1. This is an appeal by the Chief Constable of Kent Constabulary (referred to as the Respondent for ease of reference) against a reserved judgment with reasons promulgated on 5 April 2016 by an Employment Tribunal comprising Employment Judge Wallis, sitting with members, Mrs Dengate and Mr Newlyn. The Employment Tribunal upheld certain claims of unlawful direct race discrimination and victimisation brought by Angus Bowler, a serving police oficer, but rejected others. It held that the claims were in time, but even if not in time, the Employment Tribunal concluded that there was evidence of a continuing act and in any event found that it would have been just and equitable to extend time limits in this case.

2. The notice of appeal is diffuse and the skeleton argument prepared on behalf of the Respondent is unduly long and difficult to follow as a consequence. With hindsight this is an appeal that would have benefitted from a preliminary hearing to define the issues more closely, but the appeal was put through to a full hearing without that step having been undertaken. Moreover, although nine grounds of appeal are advanced in the notice of appeal, Mr Menzies (who appears on behalf of the Respondent and appeared below) made clear (both in writing – see paragraphs 1 and 2 of the skeleton argument – and orally) that the principal basis upon which the appeal is brought is that the Employment Tribunal erred in its approach to the burden of proof in relation to both unlawful direct discrimination and victimisation and was wrong to hold that the facts supported (in the absence of any other explanation) findings of (i) less favourable treatment on grounds of the Claimant’s race and (ii) findings of detrimental treatment because of a protected act. It is the Respondent’s case that there was no sufficient evidential base or sufficient findings of fact made to support a shift in the burden of proof. Instead unsupported assumptions or inferences were drawn as to less favourable and detrimental treatment, and as to the reason for such treatment. He also contends that the Employment Tribunal fell into the Zafar trap of relying on unexplained unreasonable conduct to support some of the inferences it drew.

3. The appeal is resisted by Ms Henrietta Hill QC and Ms Kate Annand on behalf of the Claimant. At the appeal hearing on 14 December 2016, although Ms Hill complained that the issues had, as she described it, “crystallised”, nevertheless she made comprehensive submissions on the points raised. In summary, in her submission, the Employment Tribunal adopted (for the most part) the reason why (rather than a two-stage Igen v Wong) approach, as it was entitled to do. The Employment Tribunal was critical of the conduct and as to the credibility of the relevant police officers. The Employment Tribunal rejected proffered explanations and concluded that this amounted to “something more" for the purposes of properly drawing inferences in this case. The inferences drawn were justified by the totality of the evidence and the findings and there is no error of law.

4. Following the hearing, by letter dated 22 December 2016, an application was made on behalf of the Claimant to make further written submissions in the interests of fairness because of the way in which the grounds of appeal were said to have shifted in the course of the hearing and further because it was said that several grounds were advanced during the hearing which had not been explicitly set out in the notice of appeal and which only became defined during the course of the hearing. The application was resisted by the Respondent. I refused to receive further written submissions observing that the Claimant was represented by leading counsel who had the opportunity to refocus her submissions during the course of the short adjournment, did not seek further time nor any adjournment, and had the best part of two hours to respond to the appeal. Furthermore I concluded that although the appeal grounds became significantly more focused and “crystallised” in the course of the hearing, I was satisfied that no new grounds of appeal were permitted to be introduced. I recognised that some attempt had been made by Mr Menzies to introduce new arguments in reply, but Ms Hill objected and the attempts were (correctly) not pursued.

5. By a further letter dated 22 December 2016, an application on behalf of the Claimant was made to adduce further evidence consisting of extracts from the Employment Tribunal’s remedy judgment, the Claimant’s closing submissions on liability and a number of other matters (pages 10-21 of the additional bundle). It was submitted that this additional evidence should be admitted in accordance with the overriding objective to permit a fuller response to issues raised about the evidence which only emerged during the hearing. This application was also resisted by the Respondent.

6. A further hearing to address this application took place on 20 February 2017. Further skeleton arguments were produced on both sides and a bundle running to 176 pages, together with additional authorities, was before me. Ms Hill’s primary submission was that the grounds of appeal had shifted so significantly that the arguments pursued in relation to grounds one, two and four are all new grounds and not comprehended within the notice of appeal. She made detailed submissions to the effect that new grounds of appeal were raised based on perversity, the inadequacy of the Tribunal’s reasoning and she also challenged as new the argument that the Tribunal made unsupported assumptions about less favourable or detrimental treatment. No application to amend having been made by the Respondent, she submitted that it is not open to the EAT to allow this appeal on the basis of grounds not pleaded. She submitted that the new grounds advanced should be dismissed on this basis without consideration of their merits. In the alternative, she submitted that the additional documents should be considered to present a fuller (albeit not the total) picture of the evidence available to the Employment Tribunal.

7. For his part, Mr Menzies rejected the suggestion that the grounds of appeal advanced at the hearing were not comprehended within the notice of appeal. He made clear that the appeal was not pursued on the basis of reasons or perversity. Rather, his principal argument was put squarely on the basis of the absence of sufficient evidence or findings to shift the burden of proof. Although he recognised that an important step in that argument involved making good his claim that there was no or not sufficient evidence or findings, he emphasised that he was not advancing a perversity argument on its own. So far as the phrase “unsupported assumption” is concerned he accepted that this phrase is not used in his notice of appeal but contended that it was a phrase used by the Court which neatly encapsulated (in his submission) the point the Respondent was making. Having originally resisted consideration of the additional evidence, ultimately he accepted that the additional evidence should be considered, and indeed, the Respondent sought to place reliance on additional evidence of its own (at pages 168 to 176 of the additional bundle).

8. Having considered carefully the Claimant’s skeleton argument on this application and the original notice of appeal, I am satisfied that the arguments advanced on the appeal are comprehended within the original notice of appeal, and I accept Mr Menzies’ arguments summarised above. For the most part, the Employment Tribunal adopted the two stage approach rather than asking the reason why. At the heart of the question whether the Tribunal was entitled to conclude that the burden of proof shifted in this case is the issue of whether a prima facie case of discrimination was established at the first stage. This was pivotal to the success of the Claimant’s unlawful discrimination claim. Separately, the notice of appeal expressly challenges certain findings on the basis that there was no evidence to support those findings. That is a ground of appeal the Respondent is entitled to pursue and it did so. To the extent relevant, I identify below the relevant paragraphs of the grounds of appeal that identify the grounds advanced at the hearing, when dealing with the substance of grounds one, two and four.

9. Having reached that decision, I am persuaded that the additional evidence should be considered in the interests of justice and in accordance with the overriding objective. I accept, as Ms Hill has submitted, that there was a considerable tightening of focus in relation to what was a diffuse appeal, and that the Claimant should have the opportunity to show that there was specific evidence available to the Tribunal in respect of some of the issues raised by the Respondent on the appeal, particularly where that evidence is not referred to by the Tribunal. I recognise that this merely creates a fuller picture and that I have not seen the totality of the evidence; far from it.

10. Moreover, I fully accept the submissions made by Ms Hill by reference to a number of authorities including Brent London Borough Council v Fuller [2011] ICR 806 (CA) and ASLEF v Brady [2006] IRLR 576 (EAT), emphasising the need for the EAT to respect the factual findings of the Employment Tribunal and to avoid subjecting its reasons to over analysis or an unrealistically detailed scrutiny in order to identify artificial defects. She reminds me that it is not necessary for a tribunal to make findings on all matters of dispute nor to recount all the evidence and in those circumstances, it cannot be assumed that the EAT sees all the evidence and nor should the EAT conclude that a tribunal has overlooked a point simply because it has not expressly mentioned it in its decision. Questions of weight are entirely a matter for the employment tribunal and not for the EAT.

The background facts and findings of unlawful discrimination

11. The Employment Tribunal heard from a number of witnesses in the case and made detailed findings of fact at paragraphs 18 to 102 of its judgment. These are not repeated here but to the extent necessary, the findings made are identified in connection with the specific grounds of challenge raised by this appeal. In broad summary, the Claimant, an experienced police constable with 25 years’ service who began his career with the City of London Police and transferred to the Respondent in 1993, passed the OSPRE Sergeant Exams in October 2009. Having done so he was eligible to apply for any vacancies for the role of sergeant by applying through a promotion board and was expected to gain experience in an acting-up capacity if possible before doing so. The Claimant obtained some experience in an acting-up capacity in 2010 and was praised for his performance in that role. In October 2010 he moved to France to work for the Respondent’s Special Branch Frontier Operations at the Eurotunnel site in Coquelles, France. He was given opportunities to gain experience by Detective Inspector Shaw (to whom he reported at that time) that would assist in an application for a sergeant role. In November 2011 he applied for and was successful in obtaining an acting sergeant role at the Port of Ramsgate for two weeks.

12. In December 2011 there was a change in his management team and DI Staddon came in to replace DI Shaw as the Inspector to whom he reported. The Claimant’s case to the Employment Tribunal was that from then on his attempts to obtain promotion were thwarted in one way or another by DI Staddon and others. He pursued a grievance and appeal alleging race discrimination, but these were not treated with the seriousness they deserved and the police officers dealing with his grievance process discriminated against him on race grounds and they (and others) victimised him.

13. The Claimant made six allegations of less favourable treatment on race grounds set out by the Tribunal at paragraph 4 of its judgment. He made eight complaints of detrimental treatment because he had done protected acts. These are particularised at paragraph 9.

14. Of the six allegations of less favourable treatment on grounds of race, the Tribunal rejected all complaints against DI Staddon (issues 4 A, B and C). It upheld the complaint that DCI Somerville failed on race grounds to investigate the Claimant’s grievance properly and produced a report full of inaccuracies (4D) (paragraphs 134 to 137). Issue 4E concerning DS Wilson ‘pocket-booking’ the Claimant was withdrawn as an allegation of direct race discrimination at the start of the hearing (but was pursued as alleged victimisation). The Tribunal upheld complaint 4F which concerned a complaint that the Claimant was informed on 19 June 2014 by Superintendent Very that his grievance appeal was not upheld and that Superintendent Very considered DCI Somerville’s report to be thorough and even-handed (paragraphs 139 and 140).

15. Of the eight victimisation complaints all but one were upheld as follows:

(i) 9A: on 31 March 2014, DS Wilson made an entry into the Claimant’s daybook raising matters relating to the Claimant’s honesty and integrity (allegedly lying to DS Wilson about speaking to DC O’Brien and misleading DS Wilson in April 2013 as to his whereabouts) which had either not previously been raised with the Claimant at all or not raised as a performance issue.

(ii) 9B: on 31 March 2014, DI Staddon made an entry into the Claimant’s daybook regarding the allegation of dishonesty and gave a misleading and inaccurate description of the conversation he had with the Claimant on 24 March 2014.

(iii) 9D: on 19 June 2014, DS Wilson “pocket-booked” the Claimant for (i) attending a meeting with PS Braithwaite, a Black Police Association Representative without his permission and (ii) attending his grievance appeal meeting with Superintendent Very without his permission.

(iv) 9E: on 19 October 2014, DS McClean told the Claimant he would not be willing to put him forward for the role of Acting Sergeant in his section and that it would probably be a period of six months before he would consider this.

(v) 9F: on 19 October 2014, DS McClean placed a restriction on the Claimant that he could only speak to officers at French customs with his permission. This was not a restriction placed on any other officer.

(vi) 9G: in late October 2014, DS McClean and DS Wilson completed the Claimant’s PDR. Neither Officer made reference to the Claimant’s arrest on 2 October 2014. This was the type of significant event that would normally be referred to in a PDR and it was omitted on purpose.

(vii) 9H: in late October 2014, DS McClean completed the Claimant’s PDR and gave him the performance ranking “meets role expectations but with some developmental needs”. In so doing, DS McClean lowered the Claimant’s performance ranking.

16. The victimisation complaint that failed was 9C: on 9 April 2014, DI Staddon was rude to the Claimant in public when he asked loudly why the Claimant was not in uniform whilst the Claimant was on the phone to another police officer. The Employment Tribunal found that this was DI Staddon’s modus operandi and he was rude to others too.

The applicable principles of law

17. Direct discrimination is defined by s.13 of the Equality Act 2010 and provides that an employer (A) directly discriminates against a person (B) if: “because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

18. The comparison between the treatment A affords to B and the treatment A affords (or would afford) to others, for the purposes of s.13, is designed to shed light on the reason for the treatment. Accordingly, there must be no material difference between the circumstances relating to each case (see s.23) or to put it another way, for the comparison to be valid, like must be compared with like.

19. Section 39 makes it unlawful for A to discriminate against B in the terms of his employment or in the way A affords B access to opportunities for promotion, training etc. or by subjecting B to any other detriment.

20. The legal principles that apply to those provisions and that are relevant in this case are largely undisputed and are well established. It is unnecessary for the purposes of this appeal to summarise the effect of well-known decisions, like Anya v University of Oxford [2001] EWCA Civ 405 and Bahl v the Law Society [2004] EWCA Civ 1070, to name but two.

21. Section 136, which deals with the burden of proof, provides:

“136. Burden of proof

(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision

…….

(6) A reference to the court includes a reference to -

(a) an employment tribunal…..

22. So far as the burden of proof is concerned, the proper approach has been addressed by the Court of Appeal in Igen Ltd v Wong [2005] IRLR 258, Madarassy v Nomura International plc [2007] ICR 867 and Laing v Manchester City Council [2006] IRLR 748. It has also been addressed by the Supreme Court in Hewage v Grampian Health Board [2012] UKSC 37.

23. Although a two stage approach is envisaged by s.136 it is not obligatory. In many cases it may be more appropriate to focus on the reason why the employer treated the claimant as it did and if the reason demonstrates that the protected characteristic played no part whatever in the adverse treatment, the case fails.

24. Where the two stage approach is adopted Mummery LJ explained in Madarassy what a claimant must prove in order to establish a prima facie case at the first stage as follows:

“55. In my judgment, the correct legal position is made plain in paras 28 and 29 of the judgment in Igen Ltd v Wong:

'28 … The language of the statutory amendments [to section 63A(2)] seems to us plain. It is for the complainant to prove facts from which, if the amendments had not been passed, the employment tribunal could conclude, in the absence of an adequate explanation, that the respondent committed an unlawful act of discrimination. It does not say that the facts to be proved are those from which the employment tribunal could conclude that the respondent 'could have committed' such act.

29. The relevant act is, in a race discrimination case …. that (a) in circumstances relevant for the purposes of any provision of the 1976 Act (for example in relation to employment in the circumstances specified in section 4 of the Act),(b) the alleged discriminator treats another person less favourably and (c) does so on racial grounds. All those facts which the complainant, in our judgment, needs to prove on the balance of probabilities.’

56. The court in Igen Ltd v. Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent "could have" committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal "could conclude" that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”

25. Whilst in Igen (at paragraph 51) the Court of Appeal held that it was open to the Employment Tribunal on the facts of that case to draw inferences from unexplained unreasonable conduct by the employer satisfying the requirements of the first stage, it cautioned tribunals “against too readily inferring unlawful discrimination on a prohibited ground merely from unreasonable conduct where there is no evidence of other discriminatory behaviour on such ground”.

26. The guidance given by Mummery LJ in the passages set out above was expressly endorsed by the Supreme Court in Hewage v Grampian Health Board [2012] IRLR 870 where Lord Hope added at paragraph 31:

“The complainant must prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the complainant which is unlawful. So the prima facie case must be proved, and it is for the claimant to discharge that burden.”

27. Lord Hope emphasised again the point that the burden of proof provisions have a role to play where there is room for doubt as to the facts necessary to establish discrimination, but that in a case where a tribunal is in a position to make positive findings on the evidence one way or another, they have no role to play.

28. Section 27 Equality Act 2010 deals with victimisation as follows: A victimises B if A subjects B to a detriment because B does a protected act or A believes that B has done or may do a protected act. Section 27(2) defines ‘protected act’ as bringing proceedings under the Equality Act 2010; giving evidence or information in connection with proceedings under the Equality Act 2010; doing any other thing for the purposes of or in connection with the Equality Act 2010; and making an allegation (whether or not express) that A or another person has contravened the Equality Act 2010. It follows that a claimant seeking to establish victimisation must show that he has been subjected to a detriment and that he was subjected to that detriment because of a protected act. Less favourable treatment does not have to be established but a claimant must establish that the alleged discriminator knew or believed that the claimant had done a protected act. Without such knowledge or belief, there is no causal link between the protected act and the detrimental treatment.

29. Determining whether the treatment that B is subjected to amounts to a detriment involves an objective consideration of the complainant’s subjective perception that he or she is disadvantaged, so that if a reasonable complainant would or might take the view that the treatment was in all the circumstances to his or her disadvantage, detriment is established (see Shamoon v chief Constable of the Royal Ulster Constabulary [2003] ICR 337 (HL) and Derbyshire and others v St Helens Metropolitan Borough Council and others [2007] ICR 841 (HL)). In other words, an unjustified sense of grievance does not amount to a detriment; the grievance must be objectively reasonable as well as perceived as such by the complainant.

30. The two-stage burden of proof provisions in s.136 apply to claims of victimisation under s.27 Equality Act. An essential element of the prima facie case that the claimant must make out is that the putative discriminator knew about the protected act on which the claim is based or believed that a protected act was done by the claimant.

31. The Tribunal set out a brief summary of the relevant law at paragraphs 120 to 129, dealing with direct discrimination, the burden of proof, time limits and victimisation. Some criticism is made by Mr Menzies of this summary but it is not suggested that the summary itself discloses any error of law or misdirection and I detect none.

The appeal

32. Ms Hill reminds me of the EAT’s limited jurisdiction to hear appeals on points of law only. There is no perversity appeal in this case and as she submits, the Appeal Tribunal must respect the factual findings of the Employment Tribunal and should not subject the Employment Tribunal’s decision to unrealistically detailed scrutiny to identify artificial errors or permit appeals on fact to be dressed up as questions of law. The Employment Tribunal’s judgment should be looked at in the round and a generous interpretation given to its reasoning.

33. Those are well established principles that I entirely accept. Furthermore, I recognise the advantage the Employment Tribunal has had in seeing and hearing the witnesses and that, even by reference to a detailed judgment, it is difficult for the findings of fact fully to capture all the nuances of impression made on the Tribunal by the witnesses and the evidence it received. As Lord Hoffmann put it in Biogen Inc v Medeva plc [1997] RPC 1:

"The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la vérité est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation."

That was said in the context of an appeal where the appellate court had the power to reverse the judge's evaluation of the facts. In the present case my jurisdiction is much more limited, so there is all the more need for caution.

34. I am also acutely conscious of the fact that I have seen a small fraction only of the total number of documents seen by the Employment Tribunal and have inevitably focussed on the points of challenge, rather than the whole case as it was considered by the Employment Tribunal.

35. Nevertheless, Ms Hill accepts, as the authorities show, that it is an error of law for a tribunal to find less favourable treatment because of a protected characteristic where there is no evidence or material from which it can properly draw such an inference. As Mummery LJ held in Effa v Alexandra Health Care NHS Trust (unreported CA, 5 Nov 1999):

“It is common ground that an error in law is made by a tribunal if it finds less favourable treatment on racial grounds where there is no evidence or material from which it can properly make such in inference. See North West Thames Regional Health Authority v Noone [1988] ICR 813, [1988] IRLR 530 at p.824 of the former report. Although an employment tribunal is less formal in its procedures than a court of law and is not bound by the rules of evidence, it must be satisfied that the complaint is proved, on the balance of probabilities, by the person who makes it. In the absence of direct evidence on an issue of less favourable treatment on racial grounds, the tribunal may make inferences from other facts which are undisputed or are established by evidence. However, in the absence of adequate material from which inferences can be properly made, a tribunal is not entitled to find a claim proved by making unsupported legal or factual assumptions about disputed questions of less favourable treatment on racial grounds. This is so whether the discrimination is alleged to arise from conscious or subconscious influences operating in the mind of the alleged discriminator.”

36. Against that background I turn to consider the grounds of challenge against individual findings by the Tribunal.

Ground one: challenge to finding 4D that Acting DCI Somerville failed to investigate the Claimant’s grievance properly and as a result produced a report which was full of inaccuracies.

37. Paragraphs 8 to 16 of the Notice of Appeal deal with this ground of appeal and challenge the finding that there was unlawful race discrimination in relation to this issue, on the basis that the failings identified by the Tribunal in the grievance report were not sufficient to transfer the burden of proof to the Respondent, and even unfair or unreasonable treatment is not enough to shift that burden. Inherent within this ground is the complaint that the material relied on to shift the burden (the failings in the grievance investigation and report) was insufficient to establish a prima facie case of less favourable treatment on race grounds. That would inevitably involve consideration of the basis on which the Tribunal concluded that there was a prima facie case that DCI Somerville would have treated somebody else’s grievance more favourably. I therefore reject the suggestion that the absence of mention of a comparator means that the ground advanced at the hearing raised entirely different issues and a new ground of appeal, as Ms Hill submitted at the further hearing. The ground of appeal was developed in the Respondent’s skeleton argument, where having sought to downplay the nature of the errors and failings, at paragraph 26, the Respondent submitted that even if there was some proper basis for a finding of “unreasonable conduct” there was no further factual finding which could constitute evidence that such conduct was less favourable treatment because of race as would be necessary. The Respondent went on to contend (at paragraph 27) that the Tribunal’s own findings of fact provided a positive basis in the evidence for demonstrating that there was no less favourable treatment because of race; and no basis for inferring that race played a part in the treatment at all.

38. The factual findings relevant to issue 4D (namely, the way in which the grievance was investigated and handled by acting DCI Somerville) are set out at paragraphs 61 to 62 and 64 to 71 of the Tribunal’s Judgment, as Ms Hill submits. DCI Somerville had a limited role in the overall chronology of events in this case and was, on the basis of the Tribunal’s findings only involved in investigating the Claimant’s grievance. The Employment Tribunal’s findings can be summarised as follows:

(i) The Claimant presented a grievance against DI Staddon and DS Wilson on 27 March 2014 complaining that they had obstructed his promotional aspirations for the last three years and (among other things) called into question his integrity in relation to whether he had spoken to or met with DC O’Brien in February 2014. In the grievance document (page 204-212 appeal bundle) the Claimant ticked the boxes referring to bullying and race discrimination (61).

(ii) On 10 April or 30 April 2014 (the date is not resolved by the Tribunal) the Claimant and his representative met with DCI Somerville who was investigating the grievance (67).

(iii) They met again on 14 May 2014 when DCI Somerville told the Claimant that the grievance was unfounded and a report would follow. He told the Claimant that he had quoted the Oxford dictionary definition of racism to the relevant officers and they had all confirmed they were not racist. He confirmed that he had not taken advice from HR about the nature of the grievance but had looked at the Race Relations Act, found it convoluted and so resorted to the dictionary. He had no training in considering grievances and had never done one before. His Equal Opportunities training was some time ago. He accepted that the Claimant raised matters with him at the meeting about incorrect details that he failed to amend in the report and said that this was because he had been preoccupied with a criminal case he was working on and it was better to get the grievance report out quickly than to take longer getting it right (68). The Employment Tribunal did not reject this explanation as dishonestly given, but plainly regarded it as unreasonable.

(iv) DCI Somerville was a senior officer with access to professional HR assistance. His approach to the grievance demonstrated either that he was poorly equipped or that he did not take it seriously or both (69).

(v) There were factual inaccuracies in the report which were not investigated by DCI Somerville who instead accepted what DI Staddon told him (70).

(vi) Nevertheless, DCI Somerville recognised that an earlier incident involving the Claimant, the O’Brien incident, was trivial and that the notebook entries about it should be expunged. He thought there was nothing to be gained further from any party by attempting to take these matters further; in contrast to the view of DI Staddon who felt that these matters were still outstanding and required to be dealt with.

(vii) DCI Somerville’s report suggested that the Claimant be given the opportunity of a fresh start (71).

(viii) DCI Somerville was “out of his depth” and ill equipped to deal with the Claimant’s grievance (82).

39. Having made these findings of fact, the Tribunal set out its conclusions on this issue at paragraphs 134 to 137. The Tribunal concluded that DCI Somerville failed to investigate the Claimant’s grievance properly or at all (134). However, the Employment Tribunal concluded that a proper investigation would not have led to a different outcome, contrary to the Claimant’s case, because proper enquiries would have shown that DI Shaw was not the only manager to authorise promotion opportunities for the Claimant as he had alleged, since DI Staddon also supported the Claimant and found opportunities for him (135).

40. One of the difficulties I have had in considering this ground of appeal is the apparent disparity between the Tribunal’s finding about the way in which DCI Somerville went about investigating the grievance and the grievance document itself which, on the face of it, records a more substantial investigation of the grievance, including speaking to DI Staddon and DS Wilson independently of one another, considering a number of documents that are listed by DCI Somerville as having been reviewed, and reaching at least some accurate conclusions about the opportunities made available by DI Staddon (particularly having regard to the Employment Tribunal’s own finding that the Claimant was not blocked by DI Staddon from promotion opportunities). Although DCI Somerville records finding no evidence of prejudice, discrimination or antagonism towards the Claimant on the basis of having spoken to the officers involved by reference to the dictionary definition of racism, it is clear he questioned DI Staddon about support offered by DI Staddon (see references to attachments to foreign law enforcement and in the UK - both accurate) and looked at the Claimant’s PDR in which both DI Staddon and DS Wilson praise his work and thank him on a number of occasions for his efforts. The conclusion reached by DCI Somerville is stated to be on the basis of all the facts rather than simply on the basis of what the officers told him in response to being given the dictionary definition.

41. Ms Hill accepts that the grievance report is fuller than might have been expected from a reading of the Tribunal’s judgment. However she submits that the Tribunal was amply entitled to conclude that the quality of the assessment of the Claimant’s race complaints was poor and that the issue of race was not examined effectively. I accept her submissions. I cannot go behind the Tribunal’s finding that the grievance investigation was incompetent for all the reasons I have set out above. It is unfortunate that the Employment Tribunal appears to have based its decision on the oral evidence of DCI Somerville and does not address or refer to the written grievance report or explain why or how that was incompetent. There is, however, no reasons challenge, and I proceed loyally on the basis of the Employment Tribunal’s finding that this was an incompetently handled grievance for all the reasons given by the Tribunal.

42. At paragraph 136 and 137 the Tribunal held as follows:

“136. Did the failure by DCI Somerville amount to less favourable treatment compared to a hypothetical comparator? The Claimant had established that the manner in which the grievance was dealt with was incompetent. The reason for that could have been race, because it was a serious and detailed grievance that deserved to be treated properly, and it was not. The Tribunal concluded that the lackadaisical approach by DCI Somerville indicated that he held a stereotypical view that the Claimant was being over-sensitive about being treated badly because of his race. He would not have treated another grievance in a similar offhand manner. The Tribunal concluded that the burden of proof shifted here. As a very senior officer with HR support, the failure to deal with the matter properly could not be passed off as simply incompetent or unreasonable and therefore nothing to do with race, without some evidence to support such a conclusion. Once the burden shifted, no explanation was provided by the Respondent for the way in which the grievance was handled; DCI Somerville appeared to think that he had done everything properly.

“137. The Tribunal concluded that the sheer incompetence of the grievance process at the first stage was sufficient to provide a basis for a finding or inference of discrimination, because it demonstrated that the grievance was not taken seriously. The reason for that could be inferred as being the nature of the complaint – race discrimination – because the Respondent, of all organisations, with all the experience and expertise that police authorities have access to in this field, should have been alive to the seriousness of such complaints and dealt with it properly. Once the burden of proof shifted. It was clear that there was no explanation to be offered; DCI Somerville did not think that he had failed in any way. The claim was upheld.”

43. On that reasoning, the question raised by ground one is whether there was adequate material to enable the Tribunal to conclude that the burden of proof shifted to the Respondent or in other words, whether there was adequate material to establish a prima facie case of less favourable treatment on the ground of race by DCI Somerville. Mr Menzies argues that there was no sufficient basis to shift the burden and that the Employment Tribunal was not entitled to rely on findings of unreasonable conduct to conclude at the first stage that DCI Somerville’s treatment of the Claimant was less favourable treatment on race grounds.

44. Against that, Ms Hill contends that the totality of the failings by this officer and the sheer extent of the incompetency shown in the grievance investigation by a senior officer justified the shifting of the burden of proof here. The Tribunal identified the different reasons that could have been the reason for his treatment of the Claimant but concluded that race was (at least) one of the reasons, having assessed DCI Somerville as a witness.

45. In deciding this issue, it seems to me that the starting point must be the question of less favourable treatment. Indeed this was the Tribunal’s starting point at paragraph 136 where it posed for itself the question whether the failings by DCI Somerville amounted to less favourable treatment compared to a hypothetical comparator. The Tribunal reasoned that the Claimant’s grievance was dealt with incompetently and that DCI Somerville had a lackadaisical approach which “indicated that he held a stereotypical view that the Claimant was being oversensitive about being treated badly because of his race. He would not have treated another grievance in a similar offhand manner.” There was accordingly, in the Tribunal’s judgment, a prima facie case of less favourable treatment, and in light of the stereotypical assumption made, on race grounds as well.

46. There is no obvious link between having a lackadaisical approach and having a stereotypical view about race discrimination complainants. The Tribunal provides no explanation for why a lackadaisical approach indicates the holding of a stereotypical view and the latter seems to me to be a non sequitur. Whilst there is no doubt that unlawful direct discrimination can occur when assumptions are made that an individual has characteristics associated with a group to which he belongs, tribunals are not entitled to rely on unproven assertions of stereotyping. There must be evidence from which a tribunal can properly infer that a stereotypical assumption was made and that the assumption operated on the mind of the putative discriminator consciously or subconsciously when treating a complainant in the way alleged.

47. Accordingly, before the Employment Tribunal could make this finding there had to be some evidence to support a conclusion that DCI Somerville held this wrong stereotypical view and that it operated on his mind when dealing with the Claimant’s grievance. No evidence is identified by the Tribunal to that effect and no factual findings are made to support it.

48. In fact, there was no evidence of DCI Somerville’s approach to other grievances (involving white officers) because this was the first grievance he had ever conducted and the Tribunal made no findings of fact about his conscious attitude to other grievances or to grievances more generally. The Tribunal did not reject DCI Somerville’s explanations for failings in the grievance process, such as his failure to correct details, as dishonestly given, but regarded them, in general, as unreasonable. The Tribunal found that he was out of his depth and ill-equipped to deal with the Claimant’s grievance, both possible explanations for his incompetent handling of the grievance, and again, part of the Employment Tribunal’s findings. The question whether there had been less favourable treatment compared with a similarly situated hypothetical comparator was a disputed issue that had to be determined on the evidence and findings of fact. Having considered the Tribunal’s reasoning carefully and reminded myself of the importance of respecting its factual findings and the ‘penumbra of imprecision’ in relation to those findings, I have come to the conclusion that the Tribunal made a leap from a finding that DCI Somerville handled the grievance process incompetently and had a lackadaisical attitude (both unreasonable but not in themselves less favourable treatment) to a conclusion that this by itself (without any other apparent basis for it) indicated a stereotypical view of race complainants, and did so based on unproven and unsupported assumption. In the absence of adequate material from which this inference could be drawn the Employment Tribunal was not entitled to conclude that a prima facie case of less favourable treatment on race grounds had been established by the Claimant. That was an error of law: see Effa.

49. This ground accordingly succeeds and this finding of unlawful race discrimination against DCI Somerville cannot stand.

Ground two: challenge to finding 4F in relation to Detective Superintendent Very’s rejection of the appeal and failure to provide a proper outcome report or respond to errors raised by the Claimant in his appeal.

50. This ground of challenge is addressed at paragraphs 18 to 29 of the notice of appeal. Although a number of points raising disputes of fact are made there, at paragraph 18 the principal point is made that the Tribunal erred in holding that there was sufficient material to conclude that the burden of proof had shifted. The same point is made at paragraph 26. In the circumstances and for the reasons given in relation to ground one it seems to me that the ground of challenge advanced in relation to this finding is wide enough to encompass the arguments advanced at the hearing that the Tribunal failed to take account of the totality of the evidence and made unsupported assumptions that DS Very made a stereotypical assumption about the validity of the Claimant’s grievance based on race. To the extent that the Respondent’s Skeleton Argument seeks to advance a wider challenge than that, since it raises matters not identified in the grounds of appeal, and no application to amend was either made or granted, those additional matters cannot be addressed.

51. Again, DS Very’s involvement in the chronology relating to the Claimant is limited, according to the Employment Tribunal’s findings, to dealing with the Claimant’s appeal against the dismissal of his grievance. The factual findings in relation to his involvement are at paragraphs 78 to 84. The Employment Tribunal found:

(i) DS Very was inexperienced in conducting grievances and appeals, having conducted one grievance and no appeals before.

(ii) Even before conducting the appeal, he told the Claimant that he thought the grievance procedure had been managed fairly and constructively up to that point. The Tribunal held that this demonstrated he had made up his mind on a number of matters and was not impartial.

(iii) DS Very met with the Claimant and his representative, PS Henry, on 19 June. In the minutes of that meeting (page 219) DS Very recorded PS Henry stating that “this [grievance] was not a matter of racism or discrimination…” The Tribunal found that the minutes were not sent to PS Henry who denied making that statement. The Tribunal accepted his evidence and rejected the evidence of DS Very on this issue.

(iv) The Tribunal found that DS Very was being disingenuous when he suggested that the race element was in effect withdrawn and found that it was not.

(v) DS Very was out of his depth with this complaint and ill-equipped to deal with it but instead of seeking guidance he effectively brushed it aside because he did not take it seriously (82).

(vi) The Tribunal questioned the relevance of a passage in DS Very’s witness statement referring to a complaint of race discrimination brought by PS Henry in 2011, giving details, including the deposit he was ordered to pay. DS Very said he included this material to show that PS Henry was an experienced representative and he denied that he included this to suggest that people from minorities tend to complain more. The Tribunal said it “had some doubts about that…” (83).

(vii) DS Very suggested that to resolve matters the Claimant should meet with DS Wilson for a clear the air meeting; have a mediated meeting with DI Staddon and that DS Very would support the Claimant’s promotion portfolio. The Claimant agreed to consider these proposals. He wanted a resolution because he was feeling unwell from the stress of the process.

(viii) At some point Mr Roddy became the Claimant’s line manager. He met the Claimant on 17 August 2014 and gave him a copy of DS Very’s notes of the appeal meeting and told him it was not upheld. No other report was produced. The Tribunal found that DS Very decided it was appropriate for DS Wilson to reprimand the Claimant on 19 June contrary to PS Henry’s understanding of his view.

52. From these findings, the Tribunal concluded that there were deficiencies in DS Very’s handling of the appeal. It found that he wrongly concluded that the race element of the grievance was not being pursued and that DS Very was being disingenuous – in other words deliberately dishonest – when he suggested that the race element was in effect withdrawn. Further, there was no proper outcome report, and no response to the errors raised by the Claimant in relation to the grievance outcome, which DS Very (wrongly and prematurely) said was thorough and even-handed. At paragraph 139 the Employment Tribunal concluded:

“Issue 4F; there was no dispute that on 19 June 2014 DS Very told the Claimant that his appeal was not upheld and that he considered DCI Somerville’s report to be thorough and even-handed. There was no dispute that a ‘proper outcome report’ was not written; there was no response in respect of the errors raised by the Claimant in his appeal. Having found that DS Very was not told by Mr Henry that the grievance was not about race, the Tribunal concluded that the Claimant had proved facts from which it could be concluded that the reason for these deficiencies was race. DS Very did not want to hear a complaint about race. Again, the handling of the appeal was best described as perfunctory. The Tribunal found it difficult to accept that an officer in the position of DS Very could think that the way he handled the matter was acceptable. He had access to HR guidance and advice; he did not bother to take it. He simply rubber-stamped DCI Somerville’s report. The Tribunal concluded that the reason for this approach was that the grievance was not taken seriously, and the reason for that was inferred as being that the complaint was viewed stereotypically as over-sensitivity on the part of the Claimant.

There was no explanation from the Respondent once the burden of proof shifted; DS Very was adamant that he had acted reasonably. His attitude, that the Claimant was over-sensitive, was however hinted at by his detailed reference to Mr Henry’s previous Tribunal claim in his witness statement. The claim was upheld”

Accordingly, the same inference that a stereotypical assumption was made by DS Very and was operative in his detrimental treatment of the Claimant was drawn by the Employment Tribunal and was regarded as sufficient in the circumstances to infer less favourable treatment and on race grounds at the first stage. The question is whether there was evidence from which the Tribunal could infer that a stereotypical assumption was made that was operative in the detrimental treatment alleged against DS Very.

53. Again, Mr Menzies contends that there are no findings of fact made by the Tribunal sufficient to support the inference drawn by it that DS Very had a stereotypical view about race complainants including the Claimant being oversensitive as a result. He now accepts that the findings show unreasonable and/or incompetent conduct which he cannot go behind in the absence of a perversity appeal. However, he says there is still nothing to support the inference drawn from this that DS Very holds the stereotypical view found by the Tribunal and it was insufficient for the Tribunal to base its conclusion on the suggestion that this was “hinted at by his [DS Very’s] detailed reference to Mr Henry’s previous tribunal claim in his witness statement”. This was an unsupported assumption without evidence. There may have been evidence of unreasonable treatment, but there was no evidence of less favourable treatment, nor any basis in the evidence to infer less favourable treatment or race grounds.

54. Against that, Ms Hill submits that the Tribunal found DS Very’s evidence wanting. He prejudged the fairness of the grievance. He was found to have been disingenuous in suggesting the race element of the grievance had been dropped. He was inexperienced and out of his depth and did not take the grievance seriously. DS Very did not accept that he held stereotypical views about the oversensitivity of black complainants, but the Tribunal saw a hint of this in his treatment of PS Henry’s complaints. Although not referred to in terms by the Tribunal, Ms Hill refers me to paragraph 7 of DS Very’s witness statement where he said the following:

“PS Henry’s experience of the framework of race discrimination actually extended to bringing a claim for race discrimination and victimisation against the force. As well as compensation he sought what was described as “a fair opportunity to be promoted”. …… At a hearing… at Ashford Employment Tribunal it was held that his claims had little prospect of success, in particular because they appeared to be out of time, and he was ordered to pay a deposit of £500. He did not pay this sum and the case did not proceed. I have no doubt that if there were any grounds for any allegations of race discrimination in the Claimant’s case PS Wendell Henry would have said so.”

That however, was an incomplete version of events and made no reference to the fact that there was a compromise payment made to PS Henry. The witness statement gives the impression that the case was simply dismissed with no resolution that benefited PS Henry. In evidence however, PS Henry explained that he was able to agree a favourable outcome for himself, with the Acting Chief Constable at the time, which included a compromise payment. Furthermore, there was a real question-mark about the relevance of the matters referred to in relation to PS Henry’s claim and why those matters had been included by DS Very in his witness statement. The inference the Tribunal was invited to draw from this material, together with DS Very’s disingenuous attempt to deny that race remained an issue at the appeal, was that he included paragraph 7 to give the impression that black and minority ethnic officers complain about race when they fail to achieve promotion, without justification, and that he adopted a stereotypical view that the Claimant was, likewise, being oversensitive in believing his treatment related to his race. For all these reasons, she submits, there was more than enough to justify a conclusion that the burden of proof had shifted here.

55. It seems to me that, in contradistinction to the findings in relation to DCI Somerville’s handling of the grievance, there was in relation to DS Very, adequate material to conclude that a prima facie case of unlawful discrimination had been established so causing the burden of proof to shift. This is not a situation where less favourable treatment on race grounds was founded on an unproven assertion of wrongly held stereotypical views. The Employment Tribunal identified a number of pieces of evidence that were relied on to form its view including first, the irrelevant material included by DS Very at paragraph 7 of his witness statement which hinted at such a stereotypical view in the Employment Tribunal’s judgment; secondly, the finding that there was a disingenuous (in other words, deliberately dishonest) attempt by DS Very to say that the race complaint was abandoned at the appeal stage; and thirdly, that he was prepared to prejudge the outcome of the appeal before hearing it.

56. I agree with Ms Hill that the findings of unreasonable treatment amounting to a failure to address the merits of the appeal, coupled with dishonesty about whether the race element of the grievance had been abandoned, taken together with the material relating to PS Henry and his own race discrimination claim, was a sufficient evidential base from which the Tribunal was entitled to conclude that the reason the grievance was not taken seriously by DS Very was his view about the oversensitivity of race complainants including the Claimant.

57. For all these reasons, I am satisfied that there was no error of law in this regard, and the appeal against this finding accordingly fails.

Ground 3: time issues

58. This ground of appeal is entirely parasitic on success on both grounds one and two, and raises no free-standing error of law as Mr Menzies expressly accepts.

59. In those circumstances, since I have rejected ground two, this ground falls away.

60. In any event, given the Tribunal’s separate findings that there was conduct extending over a period and moreover, that it was just and equitable to extend time (see paragraph 148 of the judgment), neither of which is challenged as in error of law, this ground of appeal could not have succeeded whatever the outcome of the earlier grounds, and is therefore dismissed.

Ground 4: challenge to findings 9A and 9B that there was victimisation in relation to entries made on 31 March in the Claimant’s daybook by DS Wilson raising issues of honesty and integrity not previously raised with the Claimant or not raised as a performance issue; and by DI Staddon about the allegation of dishonesty and giving a misleading and inaccurate description of the conversation he had with the Claimant on 24 March 2014.

61. The challenge to these findings appears at paragraphs 33 to 49 of the grounds of appeal. Three particular points are advanced. First, it is said that there was no evidence to support the finding that both DI Staddon and DS Wilson knew about the Claimant’s grievance and were annoyed about it at the time they made entries in his daybook: see paragraph 41. Secondly, it is said that the Employment Tribunal did not expressly direct itself about the burden of proof for victimisation claims in accordance with s.136 Equality Act and had it done so, it would not have found sufficient to justify shifting the burden of proof (see paragraphs 42 and 43). Thirdly the conclusion that the Claimant was subject to a detriment in relation to these entries is challenged as in error of law because it is argued that those acts did not have the quality of detrimental treatment, but even if they did, it is said that the facts found were not sufficient to justify shifting the burden of proof (see paragraph 49). As before, it seems to me that the arguments that there was no evidence to support knowledge findings and insufficient material to justify a conclusion that the burden of proof had shifted to the Respondent in this case inevitably involves consideration of the basis on which the Tribunal concluded that there was a prima facie case against DI Staddon and DS Wilson and/or that they had knowledge of a protected act and there was detrimental treatment. Both points are the subject of challenge in this ground of appeal and the arguments advanced at the hearing were encompassed within it and raised no new grounds of appeal.

62. The Tribunal’s main factual findings relevant to this ground are at paragraphs 62 and 63. The Employment Tribunal had earlier found that DI Staddon spoke to the Claimant in private on 25 March and told him that he could not recommend him for an acting role he was pursuing as there were doubts about his honesty, integrity and performance (referring to the O’Brien and other incidents). The Employment Tribunal found that he told the Claimant in terms that he would not recommend him for promotion under any circumstances (48). The Employment Tribunal found the matters relied on by DI Staddon to be trivial and his response (to treat them seriously) excessive (54). The grievance was presented by the Claimant on 27 March (61). There is a reference to DS Wilson returning from leave on 29 March (59).

63. The Employment Tribunal’s further findings at paragraphs 62 and 63 can be summarised as follows:

(i) The Tribunal relied on emails passing between DI Staddon and DS Wilson on 29 March (about the daybook entries) which were not in the original disclosure given by the Respondent “demonstrating some reluctance to disclose the contents”. (It was not put to DI Staddon or DS Wilson that this was done with their knowledge or approval or that they had anything to do with the disclosure exercise.)

(ii) Both officers were vague about when they became aware of the grievance: it was one of the few things that they were unable to remember. The Employment Tribunal found that they both knew about it on 29 March and were annoyed by it.

(iii) DS Wilson wrote his entry in the Claimant’s daybook on 31 March referring to the O’Brien incident and other incidents not previously recorded (63) having been asked by DI Staddon to do so.

(iv) DI Staddon added his comments in the Claimant’s daybook having been invited to sign the Claimant’s version of the meeting. The Employment Tribunal held that both officers could have restricted the extensive comments they made to their own books.

(v) DI Staddon’s note did not fully reflect the exchange that took place on 25 March. For example, he did not write that he told the Claimant that he would not recommend him for promotion. The note read like a justification of his approach for others to read in the future.

64. At paragraph 142 the Tribunal held:

“ Issue 9 A and B; there was no dispute that DS Wilson and DI Staddon made those entries in the Claimant’s notebook on 31 March 2014, and that those matters had not previously been raised as performance issues. Having found that they were aware of the grievance at the time that they made the notes, and having regard to the way they treated the Claimant thereafter, compared to the way they had treated him previously, the Tribunal concluded that the Claimant was subjected to a detriment because ha had done a protected act, and the claim was upheld.”

65. It is clear from paragraph 142 that in relation to these issues the Employment Tribunal did not rely on the burden of proof provisions but instead, made positive findings of fact based on the evidence. Contrary to the arguments advanced by Mr Menzies, that of itself involves no error of law: see Hewage.

66. The allegation found proven against DS Wilson was that he recorded relatively historic performance issues not previously raised with the Claimant in his daybook. Although the Employment Tribunal did not separately address the question whether this amounted to a detriment, or provide reasons for this conclusion, it seems to me that there is a sufficient basis in the findings of fact to support the conclusion that Claimant was entitled to feel disadvantaged by this because it painted him in a negative light in relation to issues not previously regarded as serious enough to record. That was a permissible finding in light of all the evidence viewed objectively and I detect no error of law in it.

67. The allegation against DI Staddon was that he made an entry regarding an allegation of dishonesty and gave a misleading and inaccurate description of his conversation with the Claimant. The Employment Tribunal criticised the record as more extensive than necessary and found it did not fully reflect the exchange they had on 25 March, and to that extent it was inaccurate. DI Staddon wrote that he told the Claimant that he would not recommend him for promotion but he did not write “under any circumstances”. Even on this basis however, it seems to me that there is a sufficient basis in the findings of fact to support the conclusion that the Claimant was entitled to feel disadvantaged by the fact the entry was made because it painted him in a negative light. There was evidence to this effect and that too was a permissible finding and I detect no error of law in it.

68. I do not accept Mr Menzies’ argument that the Tribunal erred in its approach to the burden of proof in relation to knowledge and causation. There is no obligation on a tribunal to adopt a two stage approach in every case. Provided that the statutory questions are properly addressed, it is permissible to ask why the alleged discriminator acted as he did: what consciously or subconsciously were the reasons operating on his mind? That is what the Employment Tribunal did in relation to the daybook entries.

69. So far as the finding of knowledge on the part of both officers is concerned, there is no perversity appeal. The Employment Tribunal made an express factual finding that both officers knew about the grievance and were annoyed by it on 29 March. That was a permissible option on the evidence, leaving aside the non-disclosure point, where natural justice required that this be put to the officers before adverse inferences were drawn. However, even without that factor, both denied knowledge as at 29 March but were vague in their evidence about when they knew about the grievance and the Employment Tribunal was plainly critical of this as “one of the few things they were unable to remember”. It affected their credibility in the eyes of the Employment Tribunal and they were plainly disbelieved as a consequence. Moreover, the content of their emails, the proximity of the extensive day book entry to the grievance referring to incidents never before recorded, and the rejection of their evidence as untrue on this issue, were all features of the evidence that entitled the Employment Tribunal to reach the conclusion it did in both cases.

70. I have not found it necessary to refer to or rely on the additional material produced by Ms Hill in relation to the knowledge issue. The additional material consists in any event, mainly of extracts from the Employment Tribunal’s Remedy judgment. I do not consider that it is open to a tribunal to fill perceived gaps in a liability judgment, after an appeal has been instituted, by making additional findings in a remedy judgment on matters subject to appeal. That approach is simply not appropriate.

71. Finally, in addition to the matters already referred to as support for the Employment Tribunal’s other conclusions, the Employment Tribunal relied on a change in the way both officers treated the Claimant before the grievance as compared with their treatment of him afterwards as a basis for concluding that they made the entries in the daybook because he brought a grievance. Mr Menzies sought to attack this finding by suggesting that there was no change in their appraisal standards as applied to the Claimant. However, the Employment Tribunal relied on a range of matters to reach this conclusion and it was a permissible option too. Although the change in attitude was more stark in relation to DS Wilson and as the Employment Tribunal found, his various actions demonstrated a “complete change in… attitude towards the Claimant” (74), the Employment Tribunal found that both were annoyed by the grievance and that and the other findings entitled it to conclude that there was some change in DI Staddon’s attitude towards the Claimant once he knew about the grievance. For example albeit slightly later in the chronology, at paragraph 75, the Employment Tribunal found that DI Staddon’s attitude towards the Claimant had changed and he wanted nothing more to do with him since the grievance.

72. For all these reasons, the challenge to these findings fails.

Ground 5: the challenge to the finding on issue 9D that DS Wilson “pocket-booked” the Claimant on 19 June 2014 for (i) attending a meeting with PS Braithwaite, a Black Police Association Representative without his permission and (ii) attending his grievance appeal meeting with Superintendent Very without his permission.

73. The challenge to the finding of victimisation in relation to this issue is that there was insufficient to shift the burden of proof or prove causation directly having regard to the totality of the evidence.

74. The Tribunal found that the Claimant was scheduled to work on 22 May 2014 from 1 pm till 11 pm. At short notice he arranged a meeting with a Black Police Federation Representative at Folkestone. Mr McCarthy as Duty Sergeant gave the Claimant permission to attend. The Claimant returned to work at 7 pm. DS Wilson came on duty at 8 pm and the Claimant told him that he had been to the meeting. Mr McCarthy told the Tribunal that he too told DS Wilson that he had given the Claimant permission to attend the meeting. Later that evening DS Wilson had a meeting with the Claimant and nothing was said about his attendance earlier that day at the meeting (72).

75. The Claimant’s grievance appeal meeting was scheduled for 19 June 2014 and on that day DS Wilson asked him what time his train was for the meeting and they had a brief conversation about that and no concerns were raised (79).

76. At the end of the clear the air meeting between the Claimant and DS Wilson on 19 June 2014, DS Wilson warned the Claimant about attending the meeting on 22 May and the appeal meeting on 19 June 2014 without DS Wilson’s permission and placed a note to that effect in the Claimant’s pocketbook. The Tribunal found that this was a form of reprimand. The Claimant protested pointing out that he had been given permission for the first meeting and that DS Wilson had seen his duty sheets where the appeal meeting was recorded and had spoken to him about train times. Nevertheless DS Wilson insisted on making the entry (86 and 87).

77. At paragraph 144 the Employment Tribunal concluded as follows:

“Turning to issue 9D, the Tribunal noted that the actions of DS Wilson were not only inappropriate for a ‘clear the air’ meeting, but also demonstrated his change of attitude towards the Claimant. The evidence pointed to the reason for that change being the grievance. His attitude is clear from his email of 22 May 2014 to DI Staddon, which included the words ‘to be honest, I believe that as I have had a grievance alleged against me by the officer I do not owe him anything.’ That claim was upheld.

78. A faint attempt was made by Mr Menzies to challenge the finding of detriment on the basis that any sense of grievance the Claimant had about being “pocket-booked” was unjustifiable, but this was not really pressed and rightly so. The Claimant perceived this as a form of reprimand, and felt aggrieved by it; and the Employment Tribunal found that it was clearly a form of reprimand (86). That was a permissible finding on the evidence and not arguably in error of law.

79. So far as causation is concerned, Mr Menzies was critical of the Employment Tribunal’s failure to apply the two-stage burden of proof approach. The Employment Tribunal made positive findings of fact as it was entitled to do, and made no error by adopting that approach. Mr Menzies next submits that paragraph 144 does not identify any finding of fact to support the conclusion that DS Wilson made the entry in the pocket-book because of the grievance. I do not accept that submission. DS Wilson was one of the subjects of the grievance, and the Tribunal found that his attitude towards the Claimant changed after the grievance. There was evidence to support that finding as summarised by the Employment Tribunal at paragraph 74 and by reference to his actions in the clear the air meeting itself. Moreover, DS Wilson’s statement in his email of 22 May “as I have had a grievance alleged against me… I do not owe him anything” was further, clear support for this conclusion. I detect no error of law in the Employment Tribunal’s approach or conclusion.

Grounds 6 to 9: challenges to findings of victimisation on issues 9E to 9H concerning DS McClean’s treatment of the Claimant on 19 October (9E and 9F) and later in October (9G and 9H)

80. In relation to all four grounds, the Respondent contends that the Employment Tribunal erred in its approach to the burden of proof and the sufficiency of the findings to justify a conclusion that the burden shifted to the Respondent to explain its treatment of the Claimant. This challenge is addressed in the grounds of appeal at paragraphs 58 to 62 (ground six); paragraph 64 to 68 (ground seven); paragraphs 70 and 74 (ground eight) and paragraphs 76 to 78 (ground nine) where some challenges are made to the finding of detriment (on the basis that the circumstances were not capable of constituting a detriment) but in each case even if there was a detriment it is said that there was insufficient material to justify a prima facie case that the treatment was because of the grievance. I do not accept that the absence of a pure perversity challenge to the finding by the Tribunal that DS McClean acted as he did because of the grievance means that the grounds of appeal set out in the notice of appeal could not be advanced, nor that they raised new grounds or a new case. As before, it seems to me that the argument that there was insufficient material to justify a conclusion that the burden of proof had shifted to the Respondent in this case inevitably involved consideration of the basis on which the Tribunal concluded that there was a prima facie case that DS McClean had knowledge of (or belief in) a protected act and that the detrimental treatment was done (at least in part) because of it.

81. The Tribunal’s factual findings on issue 9E are at paragraph 95 to 97. The Tribunal found that the Claimant met with DS McClean (a new line manager) on 19 October and told him that he wanted to gain experience to enhance his promotion prospects and would like to act up as Sergeant. DS McClean told the Claimant that as he was unaware of the Claimant’s abilities the Claimant would need a period of about six months to prove himself and learn the standards of the team. The Tribunal found this suggestion bordered on the ludicrous: the Claimant had extensive knowledge of work within the teams; they did the same duties and it was simply a question of a different shift and getting to know how DS McClean preferred to run things. There was evidence from other officers about how long it would take for the Claimant to pick up methods used by DS McClean which varied from three months to days or weeks. The Tribunal found that an officer with the Claimant’s experience would pick these things up in days if not hours and further that DS McClean could not justify his reference to a period of six months which he accepted in cross examination was probably too long. The Claimant pointed out his relevant qualifications and experience together with appraisal reports that confirmed his experience but DS McClean would not change his mind.

82. The Tribunal’s factual findings on issue 9F are at paragraph 97. The Tribunal found that during the conversation about acting up DS McClean told the Claimant that he could not visit the French Customs office without permission. The Claimant asked whether this was a general rule within the section. DS McClean told him he did not have a problem with the other officers. (It is not disputed that this somewhat ambiguous statement was not suggested to be a reference to the grievance, but simply referred to the fact that no other officers made visits to French Customs). The Tribunal continued that it:

“found that this was said because either DS Wilson or DI Staddon had alerted DS McClean to a concern over visits to the French customs by the Claimant, although this had never been raised formally with the Claimant. It was DS Wilson or DI Staddon “tipping off” DS McClean, and the Tribunal found that it was done because he was still upset about the grievance.”

83. The factual findings in relation to issue 9G are at paragraph 94. DS Wilson told the Tribunal that the Claimant transferred to DS McClean’s line management on 21 September whereas DS McClean said that it was on 19 October. The date mattered because on 2 October 2014 the Claimant arrested a suspected terrorist and this was an important piece of work but was not referred to by either DS Wilson or DS McClean in his next appraisal report. DS Wilson told the Tribunal he had already written his handover report by the time the incident happened. DS McClean said that the arrest took place before he became the Claimant’s line manager. The Tribunal did not resolve the date issue but found that this was a significant arrest and that their attitude towards the Claimant (in making no reference to it and leaving it to him to raise it) was a grudging attitude towards him.

84. The factual findings in relation to issue 9H are at paragraph 99. The Tribunal found that on 25 October 2014 the Claimant’s end of year appraisal was conducted by DS McClean. The appraisal report was written by both DS Wilson and DS McClean but neither mentioned the Claimant’s successful arrest of the terrorist suspect. They discussed training needs and the Claimant asked to attend a refresher course for the ACESO software program which he understood took about 30 minutes and was not an unusual request. The Tribunal found “as a result, DS McClean scored him as meets role expectations but with some developmental needs”. The Claimant had not heard of any others being marked down for requesting refresher training and considered that such a score would prevent promotion. The Respondent produced copies of other appraisals that were said to have been marked down by DS McClean for the same reason, but the Tribunal said it was unable to find any marked down only on the ACESO training point – those that were marked down appeared to have other issues too.

85. The Employment Tribunal also made a finding about a conversation the Claimant had with DS McClean on his return to duty on 6 November 2014 after the annual Black Police Association conference at paragraph 100. The Tribunal found that DS McClean’s account “lacked credibility” and preferred the Claimant’s account of the conversation.

86. Based on those factual findings, which must be respected, the Employment Tribunal concluded at paragraph 145 as follows

“Issues 9E to H refer to the way in which DS McClean treated the Claimant. The Tribunal could find no other reason but the grievance. There was no justification for suggesting that the Claimant would need six months to learn a job he had done for years; neither was there any justification that he could not visit the French customs, no others had that restriction. The Respondent agreed that the arrest made by the Claimant was significant; it was unclear then why his manager would not want to commend him on it in his appraisal, and simply say that he could ‘raise it himself’. The performance grade was an example of a pedantic approach that was not merited in the circumstances.” The claim was upheld.”

87. The two essential questions for the Employment Tribunal that required to be addressed in relation to each of the pleaded issues 9E to 9H were: did DS McClean’s treatment of the Claimant amount to a detriment and was it done (at least in part) because the Claimant brought a grievance based on race. The Employment Tribunal made no reference to the burden of proof provision and it is not clear whether it was looking to the Respondent for explanations for the treatment afforded by DS McClean to the Claimant and in that sense was applying the two-stage burden of proof approach. Either way it was for the Claimant to establish a prima facie case on each issue. For the Employment Tribunal to make positive findings on these issues there would have to be evidence to support such findings.

88. The Employment Tribunal made no express finding of detriment, which is unfortunate. However, it seems to be clearly implicit in the conclusions set out at paragraph 145 that each aspect of DS McClean’s treatment of the Claimant that is complained about in these issues was reasonably regarded as a detriment, and I agree with Ms Hill that each factual allegation that was established was capable of reasonably being regarded as amounting to a detriment. Further, it seems to me to be clear that read as a whole, the Employment Tribunal found that the factual allegations were established.

89. While I have no doubt that it is possible for an alleged discriminator to act subconsciously because of protected acts done by a Claimant, I find it difficult to see how a protected act can subconsciously influence a putative discriminator unless he is aware of the protected act (or believes it was or might be done).

90. In answer to the point made by the Respondent that there was no direct evidence of knowledge of a race grievance by DS McClean, and in the absence of primary facts as to knowledge (or belief) the Employment Tribunal was not entitled to assume such knowledge (or belief), Ms Hill accepts that the Employment Tribunal made no express finding that DS McClean actually knew (or believed) that the Claimant brought a race grievance. However, she relies on the proper legal direction the Employment Tribunal gave itself at paragraphs 128 and 129 where it set out the definition of victimisation and what constitutes a protected act. She refers to DS McClean’s acceptance in his witness statement that he was aware of the grievance but was not aware of the details; and the fact that there was a common thread in the way the Claimant was treated after he had raised the grievance by reference to his visits to the French customs which was raised by DS Wilson and again by DS McClean who placed a restriction on these visits. Furthermore, she relies on references in the Employment Tribunal’s subsequent Remedy Judgment to “behind the scenes” discussions between the Respondent’s managers; and the “weak and at times incredible explanation from DS McClean about his unjustified conduct towards the Claimant...[which was] also remarkable.” Although there was no direct evidence that DS McClean knew the Claimant raised a race discrimination grievance, and this was denied by him, she contends that his evidence was rejected in a variety of ways and the Employment Tribunal implicitly formed the view or drew the inference that he had the requisite knowledge even if this was not expressly addressed, and in the face of his denial.

91. Forcefully as it was advanced I do not accept Ms Hill’s argument. There is no dispute that it was necessary for the Claimant to establish a prima facie case that DS McClean knew about his race grievance. The limited degree of knowledge which he acknowledged in his witness statement is insufficient. DS McClean said this (at paragraph 5 of his witness statement):

“I understand that it is alleged now that ….my action was a detriment which was motivated by the fact that he had taken out a grievance against other officers. His grievance was nothing to do with me. As I told him at that meeting whilst I was aware of the fact there had been a grievance I did not know any of the details and it was none of my business. I said what I said about the acting sergeant role because I needed to have formed a sound judgment of the individual’s capabilities based on incidents I had witnessed or could corroborate so that I could take responsibility for any such recommendation.”

That statement involves no acceptance whatever of knowledge that the grievance was one of race discrimination. It was critical therefore, for the Employment Tribunal to decide whether his denial of greater knowledge than that was true.

92. As was said by Balcombe LJ in Chapman v Simon [1994] IRLR 124 at paragraph 33(3):

"In order to justify an inference, a Tribunal must first make findings of primary fact from which it is legitimate to draw the inference. If there are no such findings, then there can be no inference: what is done can at best be speculative".

So again the question in relation to each of the four grounds pursued here, is whether there were primary facts found by the Employment Tribunal from which knowledge on the part of DS McClean could legitimately have been inferred.

93. There is no dispute that DS McClean was not involved in the grievance process itself, and was not implicated by it. He was not the Claimant’s line manager at the time, and only became his line manager some time after the grievance process had been completed. There are no findings therefore that his attitude to the Claimant changed following the grievance and nor could such a finding have been sustained. He was in a different position to DI Staddon and DS Wilson. Against that background, the primary facts which the Tribunal did find included a finding that DI Staddon or DS Wilson alerted DS McClean to a concern over visits to French Customs by the Claimant; and that this was one of them “tipping off” DS McClean (see paragraph 97). The Employment Tribunal expressly found at paragraph 97 that this was the reason why DS McClean then told the Claimant that he could not visit French Customs without permission. In other words that was the reason on the Employment Tribunal’s own findings for one of the alleged acts of detrimental treatment. However, although the Employment Tribunal found that the tipping off was done by DI Staddon or DS Wilson because of their upset over the grievance, there is no finding that either of them told DS McClean about this motive, or that he had any awareness of it by some other means, still less awareness that it included a race complaint. There is nothing in the Employment Tribunal’s reasons to suggest it considered DS McClean’s actions were ‘tainted’ by the unlawful reasons of others and no finding to this effect was made, nor has Ms Hill sought to sustain such a conclusion.

94. The Tribunal made no findings about any other “behind the scenes” discussions between DI Staddon or DS Wilson and DS McClean in the liability judgment. It made no finding that there were discussions between, for example Mr Pringle and DS McClean, or DS McClean and other officers. In the absence of such findings, it seems to me that it was not open to the Tribunal to supplement its findings on this issue in the Remedy Judgment or to fill in the gaps, particularly in circumstances where the Employment Tribunal was by the time of the Remedy Judgment, aware of the points being taken on appeal, including this point. Indeed, that the Employment Tribunal took the opportunity to do so appears to acknowledge that there was a gap to be filled. To permit that approach is not fair to either party.

95. The Employment Tribunal found one aspect of DS McClean’s evidence to lack credibility, but this had nothing whatever to do with his knowledge or otherwise of the race grievance. It concerned a subsequent conversation on 6 November 2014, (after the alleged detrimental acts), when DS McClean was alleged to have said that the Black Police Association conference was contentious, to which the Claimant responded that all he wanted was a level playing field, to which DS McClean made an action indicating that his playing field was not level. DS McClean accepted he said and did this, but sought to explain that by ‘contentious’ he meant dry. The Employment Tribunal rejected this as making no sense since ‘the two descriptions are virtual opposites’ and found this explanation lacked credibility. That finding, which is difficult to understand fully, was a limited one. What appears from the remaining findings however is that the Employment Tribunal did not expressly (or implicitly) reject as untrue (in the sense of not honestly given) the remainder of his evidence.

96. It is fair to say that the Employment Tribunal rejected as unreasonable the explanations given by DS McClean for his treatment of the Claimant, and found his treatment to be unjustified, albeit that it did not find his explanations to be dishonest. However it does not follow from this that the only reason for the treatment was his knowledge of a protected act. Indeed, as already indicated, the Employment Tribunal’s own findings show that his reason for restricting the Claimant’s visits to French Customs was that he had been tipped off by others about the Claimant visiting French Customs (see the express finding to this effect at paragraph 97). As a matter of reality and logic, this was a plausible reason for DS McClean’s other treatment too – he was tipped off that the Claimant made unnecessary visits to French Customs thereby wasting time and was therefore somebody who needed to be watched and assessed. No doubt there could be other reasons too. However, rather than addressing the reason it expressly found at paragraph 97, and identifying the primary facts and inferences that could properly be drawn, the Employment Tribunal simply concluded that it “could find no other reason but the grievance” for DS McClean’s unreasonable treatment.

97. It is critical in discrimination cases that tribunals avoid a mechanistic approach to the drawing of inferences, which is simply part of the fact-finding process. All explanations identified in the evidence that might realistically explain the reason for the treatment by the alleged discriminator should be considered. These may be explanations relied on by the alleged discriminator, if accepted as genuine by a tribunal; or they may be explanations that arise from a tribunal’s own findings. Merely because a tribunal concludes that an explanation for certain treatment is inadequate, unreasonable or unjustified does not by itself mean the treatment is discriminatory since it is a sad fact that people often treat others unreasonably irrespective of race, sex or other protected characteristic. That does not mean that the fact of unreasonable treatment is irrelevant. As Elias P (as he then was) explained in Bahl v the Law Society [2003] IRLR 640 (at [101]).

“The significance of the fact that the treatment is unreasonable is that a tribunal will more readily in practice reject the explanation given than it would if the treatment were reasonable. In short, it goes to credibility. If the tribunal does not accept the reason given by the alleged discriminator, it may be open to it to infer discrimination. But it will depend upon why it has rejected the reason that he has given, and whether the primary facts it finds provide another and cogent explanation for the conduct. Persons who have not in fact discriminated on the proscribed grounds may nonetheless sometimes give a false reason for the behaviour. They may rightly consider, for example, that the true reason casts them in a less favourable light, perhaps because it discloses incompetence or insensitivity. If the findings of the tribunal suggest that there is such an explanation, then the fact that the alleged discriminator has been less than frank in the witness box when giving evidence will provide little, if any, evidence to support a finding of unlawful discrimination itself.”

98. There are no other indicators in the evidence and findings made by the Employment Tribunal to support an implicit finding or inference of such knowledge of a protected act and Ms Hill has identified no positive evidence of knowledge on the part of DS McClean. He might have had such knowledge, but that is not enough, and the primary facts found by the Tribunal, even when taken cumulatively and having regard to the “penumbra of imprecision”, do not justify the inference of such knowledge. It seems to me accordingly that the Claimant did not establish a prima facie case of knowledge and the Employment Tribunal, which failed expressly to address this question, was not entitled to conclude that the burden shifted to the Respondent to explain itself, or to infer such knowledge by way of a positive finding if that is what it did.

99. For these reasons, I am persuaded that the findings of unlawful victimisation made against DS McClean cannot stand. The appeal succeeds in relation to issues 9E to H.

Conclusion

100. Having concluded that the Tribunal did make errors of law as indicated above, I must decide what course to adopt in consequence. I am satisfied that this is not a case where the conclusion is obvious or inevitable in relation to any of the now outstanding issues. It will therefore be necessary (if these matters are to be pursued) to remit the issues in respect of which this appeal is allowed. It may be, however, given that the Claimant’s service as a police officer is continuing in this case, that the parties can come to terms in relation to the outstanding issues, and I encourage that approach, and a degree of flexibility on both sides to achieve it.

101. If, however, mutually acceptable terms cannot be reached for whatever reason, the remaining question is whether remission should be to a fresh tribunal or to the same Tribunal. Although the Employment Tribunal’s attempt to fill perceived gaps in the liability judgment by purporting to make additional findings in the Remedy judgment causes me concern, I have concluded, having regard to all the factors in Sinclair Roche Temperley v Heard [2004] IRLR 763 including proportionality and expense that this is a case where it is appropriate to remit the issues to the same Tribunal. The Tribunal heard the evidence and I am confident that it will reconsider the issues required to be addressed in light of this judgment, and will do so fairly and professionally. Given that I am remitting to the same Tribunal, I would anticipate that no further evidence will be necessary, and any further hearing can be restricted to legal submissions. However, ultimately, it will be for the Tribunal to determine whether further evidence is to be entertained and it will no doubt wish to consider representations from the parties as to whether that should be done or not in this case.

102. Accordingly the appeal succeeds to the limited extent indicated above and the case is remitted for issues 4D and 9E to 9H to be reconsidered by the same Tribunal.

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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Chief Constable of Kent Constabulary v Bowler (Race Discrimination) [2017] UKEAT 0214_16_2203 (22 March 2017) URL: http://www.bailii.org/uk/cases/UKEAT/2017/0214_16_2203.html Cite as: [2017] UKEAT 0214_16_2203, [2017] UKEAT 214_16_2203

United Kingdom Employment Appeal Tribunal