Lord Justice Underhill:
INTRODUCTION
- This is an appeal from a decision of the Employment Appeal Tribunal (Elisabeth Laing J sitting alone) dismissing an appeal from the Employment Tribunal, which had upheld claims by the Claimant of racial discrimination and victimisation. For convenience I will refer to the parties as they were before the ET, although the Claimant is the respondent before us.
- The Claimant is a police officer, holding the rank of Detective Constable, in the Greater Manchester Police ("the GMP"). He is black and was at all material times the Chair of the Black and Asian Police Association for the GMP. In 2007 and 2008 he brought claims of racial discrimination against the GMP. In 2009 these were settled by a compromise agreement. One of the terms of that agreement was that the GMP would second him at the earliest possible opportunity to the Regional Crime Unit ("the RCU"). The RCU was part of an entity, originally known as the North West Regional Serious and Organised Crime Unit ("the NWROCU") but latterly as "TITAN", comprising five or six police forces from the North West. In the event, because it was not possible for various reasons for him to join the RCU the Claimant was seconded instead to another unit within the NWROCU/TITAN, the Regional Intelligence Unit ("the RIU"), with effect from 1 October 2009. The agreed term of the secondment was two years.
- At the end of the two years, in autumn 2011, no steps were taken to end the Claimant's secondment to the RIU. In the spring of 2012 he was posted to an operation called "Operation Holly", which was the joint responsibility of TITAN and the GMP. Operation Holly was based in Ashton-under-Lyne. Because his base as a member of the RIU was in Warrington, the Claimant was given the use of a police car to travel to and from his work.
- In November 2012 the decision was taken to terminate the Claimant's secondment to TITAN. He was to remain working on Operation Holly but in his capacity as a GMP officer. That meant that he would lose his entitlement to a car supplied by TITAN; and he would also not be entitled to claim travel expenses. He objected. By that stage a draft policy was under consideration under which officers seconded to TITAN would have five years' "tenure", and he argued that such a policy should apply in his case. One of the things that he was told in response was that he had never been seconded to the RIU but only "attached".
- Arising out of those events the Claimant in February 2013 brought proceedings in the Employment Tribunal against the Chief Constable of the GMP. He complained of seven detriments, labelled (a)-(g), which he said constituted both direct discrimination on the grounds of his race and victimisation by reason of his having brought the earlier ET claims. As recited in the ET's Reasons they read as follows:
"(a) failure to second him to the RCU in accordance with [the compromise agreement];
(b) treating him as 'attached' to TITAN rather than as 'seconded';
(c) terminating the secondment arrangement summarily and/or without consultation;
(d) failing to allow the Claimant to complete 5 years in his seconded position in the RIU, contrary to the NWROCU tenure policy introduced in 2011;
(e) withdrawing the Claimant's use of an RIU car and/or summarily and/or withdrawing it without consultation;
(f) withdrawing the Claimant's right to claim travel expenses summarily and/or without consultation; and
(g) failing to investigate the Claimant's complaints about these matters properly."
- The case was heard by an ET sitting in Manchester chaired by Employment Judge Holmes over seven days in late 2014 and early 2015. By a reserved Judgment sent to the parties on 10 February 2015 the Tribunal found that the claim in relation to the first detriment was out of time and dismissed the claim in relation to the second. As regards the remaining five, it found that detriments (c)-(f) constituted victimisation but not discrimination and that (g) constituted both discrimination and victimisation.
- The Respondent appealed to the EAT. The Claimant did not cross-appeal against the dismissal of his discrimination claim. Elisabeth Laing J handed down her judgment dismissing the appeal on 3 December 2015.
- The Respondent was represented before us by Mr Simon Gorton QC and the Claimant by Mr Paul Gilroy QC. Mr Gorton, but not Mr Gilroy, also appeared in the EAT. In the ET the Claimant and the Respondent were represented by Mr Peter Sigee and Ms Assunta Del Priore respectively.
- The ET dealt with the claims with which we are concerned in two parts – taking first claims (c)-(f), which all concern the termination of the Claimant's secondment to the RIU and its consequences and are closely linked, and then claim (g), which concerns the handling of his subsequent complaint. That was a sensible division, which was also reflected in the submissions before us, and I will follow it in this judgment. But I should first set out the essential background law.
THE BACKGROUND LAW
- Section 13 (1) of the Equality Act 2010 defines (direct) discrimination as follows:
"A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others."
Race is of course a protected characteristic: see section 4.
- Section 27 of the Act defines victimisation (so far as relevant) as follows:
"(1) A person (A) victimises another person (B) if A subjects B to a detriment because—
(a) B does a protected act, or
(b) …
(2) Each of the following is a protected act—
(a) bringing proceedings under this Act;
(b)-(d) …"
It has not been suggested before us that the reference at sub-section (2) (a) to "proceedings under this Act" does not include also proceedings under the predecessor legislation.
- Both sections use the term "because"/"because of". This replaces the terminology of the predecessor legislation, which referred to the "grounds" or "reason" for the act complained of. It is well-established that there is no change in the meaning, and it remains common to refer to the underlying issue as the "reason why" issue. In a case of the present kind establishing the reason why the act complained of was done requires an examination of what Lord Nicholls in his seminal speech in Nagarajan v London Regional Transport [1999] UKHL 36, [2000] 1 AC 501, referred to as "the mental processes" of the putative discriminator (see at p. 511 A-B). Other authorities use the term "motivation" (while cautioning that this is not necessarily the same as "motive"). It is also well-established that an act will be done "because of" a protected characteristic, or "because" the claimant has done a protected act, as long as that had a significant influence on the outcome: see, again, Nagarajan, at p. 513B.
- The Claimant's claims are brought under section 39 of the Act, read with section 42, which treats a police constable as employed (so far as relevant for our purposes) by the Chief Constable of the force to which he is appointed. Nothing turns in this appeal on the details of the provisions of section 39, and I need not set them out here.
- Both the discrimination and the victimisation claims are subject to the provisions of section 136 of the 2010 Act relating to the burden of proof, which read (so far as material):
"(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.
(4)-(5) …"
The effect of section 136 (or, strictly, the cognate provisions in the predecessor legislation) has been authoritatively expounded in a line of decisions culminating in Igen Ltd v Wong [2005] EWCA Civ 142, [2005] ICR 931, and Madarassy v Nomura International plc [2007] EWCA Civ 33, [2007] ICR 867. In brief, a tribunal must first decide whether a claimant has established a prima facie case of unlawful discrimination (or victimisation) in the sense elucidated in Madarassy http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2015/439.html&query=(underhill)+AND+(exposition)+AND+(madarassy) - disp6at paras. 56-57; if he has, the burden shifts to the respondent to prove a non-discriminatory explanation.
(A) THE TERMINATION OF THE SECONDMENT
THE ET's FINDINGS OF FACT
- It is not necessary to go into detail about the circumstances of the Claimant's original secondment. But it is important to note that the documents referred to by the Tribunal show that the NWROCU regarded this as a special arrangement, made in order to help the GMP. The GMP was recorded as having agreed "to pay Paul's costs, outside the normal arrangements for the running of the regional secondments" (Reasons para. 4.28). It was also, apparently, irregular that the Claimant had been seconded without going through the normal recruitment processes: at a later stage in the story the then Head of Titan referred, in connection with the Claimant's position, to "an already unsatisfactory situation regarding the circumvention of the normal selection procedures for TITAN" (Reasons para. 4.59). When accepting the Claimant the NWROCU made the point expressly that it was autonomous and that it had the right to control who was accepted onto its strength, and it did not guarantee to comply with the GMP's request in every particular.
- As noted above, the agreement was that the Claimant would be seconded for two years from 1 October 2009. The Tribunal was given no explicit evidence about why no steps were taken to bring his secondment to an end in 2011, but it found that the likelihood was that the question was shelved because TITAN was at that time seeking the contributing forces' agreement to having the standard period of secondment increased (Reasons paras. 4.23-24). That agreement was not forthcoming: the revised policy eventually agreed in January 2013 was that the duration of secondment should be a matter for the contributing force, subject to a maximum of five years (para. 4.25).
- In due course Detective Superintendent John Lyons, a senior officer in TITAN, did make some enquiries about the Claimant's position. An e-mail from Detective Chief Superintendent Darren Shenton of the GMP's Serious Crimes Division, dated 3 April 2012, to Assistant Chief Constable Steven Heywood (also of the GMP), referred to a discussion that he had had with DS Lyons and suggested that the Claimant's secondment be brought to an end and that he be assigned to Operation Holly as a GMP officer (Reasons para. 4.33). One feature of the e-mail is that it describes the Claimant's secondment as having commenced in October 2010, rather than 2009 as was in fact the case. It is not clear whether that reflects a substantive misunderstanding by either DS Lyons or DCS Shenton since he goes on to describe the Claimant's "agreed period of secondment" as having "passed"; but the Tribunal nevertheless later in the Reasons suggests that the error might have reflected, or caused, some confusion (see para. 32 below).
- DCS Shenton's e-mail was copied to Chief Superintendent Caroline Ball, the Head of the GMP's Organisational Learning and Development Branch: it seems that that branch would have been responsible for implementing the termination of the secondment. She wrote back the same day saying (Reasons para. 4.37):
"I am not sighted on the agreements etc and nor should I be.
My only issue is why he is just being slotted onto a post that should be recruited to. If there clearly is something that will compromise the force and this is the right thing to do for all then so be it."
That is not perhaps perfectly worded, but it is clear enough what she is saying: it was irregular to appoint the Claimant to Operation Holly without going through a proper recruitment process, but she had no objection if that was the right thing to do in a tricky situation.
- The Tribunal saw no reply to DCS Shenton's e-mail from ACC Heywood, nor did it hear evidence from either of them. But it seems clear that the proposal was agreed in principle because there is an e-mail from Ch Supt Ball in May 2012 about its possible implementation (Reasons para. 4.38); and the Tribunal found that a letter from her to the Claimant was drafted in June 2012 though not sent (para. 4.41).
- However, the Claimant's assignment to Operation Holly proceeded in the meantime. As I have said, it was a joint GMP/TITAN operation, and since his proposed transfer back to the GMP had not yet occurred he was assigned in his capacity as a TITAN officer, which is why he became entitled to the use of a car as referred to at para. 3 above.
- The Tribunal found that although the decision to end the secondment was taken in principle as described above its implementation then hung fire for some months. In particular, no-one spoke to the Claimant about it. It does not at this stage make a finding as to the reason for this inaction, but it seems from passages in its later reasoning which I set out below that it thought that Ch Supt Ball felt an unease about the course proposed which led her to "sit on" the issue and fail "to grasp the nettle" (see Reasons paras. 35-36, set out at para. 39 below). It does not spell out the cause of her unease, but it can, I think, be safely inferred that it thought it had to do with the concern expressed in her e-mail of 3 April 2012 (see para. 18 above).
- In October 2012 a new Head of Titan, Detective Chief Superintendent Horrigan, was appointed. The Tribunal found that on reviewing his establishment he noted that the Claimant had been posted previously to the unit "in a supernumerary capacity" and made enquiries as to what the position was about his returning to the GMP (Reasons para. 4.43).
- DCS Horrigan's enquiry prompted the GMP back into action. On 20 November 2012 Ch Supt Ball wrote to the Claimant to "formally confirm that your secondment to the Regional Task Force has now concluded and you have therefore been substantively transferred back to the GMP", although he would continue to work on Operation Holly (Reasons paras. 4.45 and 4.49). On 22 November, before he received the letter, the Claimant was seen by two GMP officers to tell him what had been decided. He objected, on the basis that he would lose the benefits which derived from his being seconded to TITAN.
- At a meeting with the Claimant on 27 November 2012 DCS Horrigan used the term "attached" to describe the Claimant's position with TITAN (cf. his earlier reference to him as supernumerary): it is this which gives rise to claim (d). No doubt that description – whether or not it was formally accurate – was intended to reflect the features of his situation noted at para. 15 above.
- On 30 November 2012 DCS Horrigan wrote to Acting Assistant Chief Constable Zoe Sheard[1] (whose involvement I explain at paras. 61-62 below) to explain why he was not prepared to extend the Claimant's secondment. He said
"Whilst I understand that it would resolve a tricky situation relating to his transport to Nexus House [i.e. the Operation Holly base in Ashton-under-Lyne], I fear it would exacerbate an already unsatisfactory situation regarding the circumvention of the normal selection procedures for TITAN. In addition it would potentially create a vulnerability for TITAN at a time when another is due to leave the Unit as a result of their failure to pass the surveillance course and their unsuccessful attempt to move to another unit within TITAN. Having discussed these issues with Darren, we both broadly agreed that the most appropriate action is for DC Bailey to return to GMP, as per Caroline Ball's letter, and for the force to resolve the issue of transport to his place of secondment – although the manner of any such resolution is a matter of GMP alone."
- I ought to say that there appears to have been no criticism of the Claimant's performance while in the RIU. On the contrary, he was described in DCS Shenton's e-mail of 3 April 2012 as having been "productive", and it was proposed that he be posted to Operation Holly because it was thought he would be "extremely proficient" at the work.
THE ET's REASONING
- The Tribunal dealt separately with the claims of victimisation and discrimination. I take them in turn. As will appear, there are some difficulties in identifying its precise reasoning; and my analysis of it will to some extent anticipate my conclusions on the dispositive issues.
Victimisation
- At para. 24 the Tribunal recorded – neither fact being in issue – (1) that the Claimant had done a protected act and (2) that the termination of the secondment constituted a detriment. It continued:
"The remaining issue to be addressed is the burden of proof. Once these first two elements are established, the burden of proof shifts to the respondent to show that the reason for the treatment (and it need not be the sole reason – it is sufficient that the doing of the protected act was part of the reason for the treatment) was not the protected act."
- It was common ground before us, and is plainly the case, that that self-direction was wrong; and Elisabeth Laing J also so held in the EAT (see para. 58 of her judgment). It is trite law that the burden of proof is not shifted simply by showing that the claimant has suffered a detriment and that he has a protected characteristic or has done a protected act: see Madarassy, per Mummery LJ at paras. 54-56 (pp. 878-9). It is, however, the Claimant's case, which Elisabeth Laing J accepted, that that error did not vitiate the Tribunal's overall reasoning: I return to this below.
- At the beginning of para. 25 the Tribunal posed itself the question "what were the reasons that the respondent ended the claimant's secondment when, and in the manner, that he did ?" – in other words the "reason why" question. It reminded itself – which followed from what it had said at para. 24 – that the burden of proving that reason was on the Respondent.
- Having asked that question, the Tribunal devotes paras. 26-29 to seeking to identify who in fact took the decision to terminate the Claimant's secondment: that was plainly the right first step. It observed that it was hampered in that task by there being no clear answer in the evidence adduced by the Respondent. However it concluded, at para. 27, that the decision was made "either by Darren Shenton or, more probably, by Steve Heywood"; it put it a little differently in para. 29, where it says that it was "either Darren Shenton or Steve Heywood or a combination of both". As already noted, neither Mr Shenton nor Mr Heywood gave evidence.
- Having thus identified the two decision-makers, at para. 30 the Tribunal considers what might have been Mr Shenton's motivation. It begins by saying, on the basis of his e-mail of 3 April 2012 (see para. 17 above), that he appeared to be "… under the misapprehension that the claimant's secondment was for a two year period from October 2010"; and it goes on to say that this "may explain the timing of the decision to recall the claimant". It then refers to evidence that DCS Shenton was aware that the Claimant had done a protected act.
- The following paragraph, para. 31, is crucial to the Tribunal's reasoning. It starts with the phrase "As for ACC Heywood" and thus appears to be intended to carry out the same exercise in relation to Mr Heywood as had been carried out in the previous paragraph in relation to Mr Shenton. The Tribunal then goes on to say that it had not seen a single document emanating from ACC Heywood. However, the paragraph then proceeds:
"In any event, quite apart from the absence of any evidence from the respondent as to the reasons why he treated the claimant as he did when he did, on any view, the claimant only found himself in this position because of the unique way in which he came to be in the NWROCU in the first place. He was only there because of the agreement he had made with the respondent, an agreement which is inextricably linked to, and arises out of, his protected act of bringing his previous proceedings. Hence, there is no escaping the fact that his treatment was 'because of' his having done a protected act. The tribunal is therefore quite satisfied that the claimant suffered the detriment set out in claims (c), (e) and (f) because he had done a protected act, and these, as claims of victimisation, succeed. To that end, it has not been necessary to determine which of the respondent's officers had any knowledge of the claimant's previous claims, or just what the extent of that knowledge was."
Notwithstanding that final sentence, the Tribunal went on, "for completeness", to say that it was "highly likely" that DCS Shenton and ACC Heywood knew of the Claimant's previous claims.
- It will be seen that that reasoning was applied by the Tribunal only to claims (c), (e) and (f). At para. 32 it deals separately with claim (d). This reads:
"In relation to claim (d), the failure to allow the claimants to be seconded for 5 years (or at least be considered for such an extension), we consider that too to flow from his position under the Compromise Agreement, and hence also to flow from his protected act. In any event, not having heard from Darren Shenton nor Steven Heywood, the tribunal cannot know why they disregarded what had become an increasingly exercised option."
- There are two quite distinct strands to the Tribunal's reasoning in those paragraphs. First, there is an attempt to establish what, as a matter of fact, was the actual motivation of the decision-maker(s). That is the subject of paras. 26-30, the beginning and end of para. 31 and the second sentence of para. 32; and the implication, though it is not spelt out, is that they were indeed motivated by the fact that the Claimant had previously brought a claim against the GMP. Secondly, there is the conclusion – in the middle section of para. 31 and the first sentence of para. 32 – that the first exercise is in fact unnecessary because "in any event" the causation question was sufficiently answered by the fact that the entire situation "flow[ed] from [the Claimant's] position under the Compromise Agreement, and hence also … from his protected act".
- It is, again, common ground before us that the second of those strands of reasoning is wrong in law – and, with all respect to the Tribunal, obviously so. It is self-evidently the case that there would have been no secondment to terminate if the Claimant had not brought his earlier claims, but that kind of "but for" causative link does not mean that the termination was "because of" his earlier claims in the relevant sense. This point has been made in many cases over the years. I addressed it in my judgment in the EAT in Ahmed v Amnesty International [2009] UKEAT 0447/08, [2009] ICR 1450, at para. 37 (p. 1471 B-G), as follows:
"The fact that a claimant's sex or race is a part of the circumstances in which the treatment complained of occurred, or of the sequence of events leading up to it, does not necessarily mean that it formed part of the ground, or reason, for that treatment. That point was clearly made in the judgment of this Tribunal in Martin v Lancehawk Ltd (UKEAT/0525/03). In that case the (male) managing director of the respondent company had dismissed a (female) fellow employee when an affair which they had been having came to an end. She claimed that the dismissal was on the ground of her sex because 'but for' her being a woman the affair would never have occurred. At para. 12 Rimer J. referred to the Tribunal's finding that the dismissal was 'because of the breakdown of the relationship' and continued:
'… [T]he critical issue posed by section 1(1)(a) [is] whether Mr Lovering dismissed Mrs Martin "on the ground of her sex", an issue requiring a consideration of why he dismissed her. As we have said, we interpret the tribunal as having found that the dismissal was because of the breakdown of the relationship. That, therefore, was the reason for the dismissal, not because she was a woman. We accept that, but for her sex, there would have been no affair in the first place. It could, however, equally be said that there would have been no such affair "but for" the facts (for example) that she was her parents' daughter, or that she had taken up the employment with Lancehawk. But it did not appear to us to follow that reasons such as those could fairly be regarded as providing the reason for her dismissal.'
See also Seide v Gillette Industries Ltd. [1980] IRLR 427, where an employee who had been moved to a different department to escape anti-Semitic harassment fell out (for non-racial reasons) with his colleagues in his new department and was disciplined: it was held that the fact that but for the earlier harassment he would not have been in the department where the problem arose did not mean that the action of which he complained was taken on racial grounds."
- In those circumstances, it is of crucial importance to decide whether the first strand is an alternative basis for the Tribunal's decision or whether, as Mr Gorton submitted, it represents an avenue of enquiry which the Tribunal pursued for a certain distance but then abandoned because what it thought was a more straightforward route was available. My initial reaction was that it was the latter: I was influenced in particular by the Tribunal's clear statement that because of its conclusion on "strand 2" it was not necessary for it to determine which of the decision-makers knew what about the Claimant's previous claims – which is of course essential to a claim based on their actual motivation. However, on reflection and with some hesitation, I have come to the conclusion that the better view is that the Tribunal intended to find for the Claimant on both bases. Although it said that it was unnecessary to make a finding about the decision-makers' knowledge, it did go on, at the end of para. 31, to do so. And in para. 32 it seems to have relied on both strands equally. I should make it clear that I am not at this stage expressing a view as to the validity of the first strand: I am simply concluding that it constituted an alternative basis for the Tribunal's decision.
Discrimination
- At paras. 33-34 the Tribunal points out that the reference in section 13 of the 2010 Act to the claimant being treated less favourably than others requires it to identify a comparator (unlike in the case of victimisation, where section 27 refers only to him suffering a detriment). The Tribunal says that in the circumstances of this case the comparator can only be hypothetical and concludes:
"The question then becomes would a white officer in the same circumstances have been treated the same way? Was the claimant's race the 'reason why' he was treated this way ?"
Although the Tribunal, following the literal form of the legislation, poses itself two questions it is now well-recognised that they are in practice two sides of the same coin and that second question often provides the better approach to the issue: see the speech of Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, [2003] ICR 337, at paras. 8-12 (pp. 341-2) and the very many subsequent cases in which the approach which he recommends has been followed. In practice this seems to have been the approach that the Tribunal took as regards these claims (though it did not so clearly do so as regards claim (g)).
- At paras. 35-36 the Tribunal seeks to answer those two questions. I should set those paragraphs out in full:
"35. In our view the answer to the first question is probably 'yes', and second is 'no'. It is a somewhat paradoxical consequence of his success on the victimisation claim that the claimant's direct race discrimination is rather undermined by that very finding. The reason why he was treated as he was was overwhelmingly that he was only in the NWROCU because he had made a special agreement with the respondent, and hence the reason why he had to leave it and the manner in which the respondent went about it, was that reason as well. To the extent that the manner in which the respondent went about it in terms of lack of consultation and warning could be considered discriminatory in itself, we are satisfied that the more likely explanation is ineptitude rather than the claimant's race. Clearly, contemplation of the claimant returning to his own force had been going on from April 2012, and Caroline Ball has in May 2012 envisaged her team being in contact with the claimant to discuss his return. Sadly that did not occur, and it is difficult to avoid the conclusion that Caroline Ball, or possibly those senior to her, simply 'sat on' this matter until it was noticed in November 2012, in something of a panic, that nothing had been done. There then ensued the hasty and ill considered letter which deprived the claimant of any chance of consultation.
36. There may have been a reluctance to 'grasp the nettle', but it seems to us, however, a matter of complete irrelevance that the claims in respect of which the claimant had done protected acts were race claims, and we are quite satisfied that a gay or female officer who had compromised claims made in respect of those protected characteristics with the same resultant period of secondment would have been just as likely to have been treated in this way. We therefore do not find that in respect of claims (c), (d), (e) and (f) these were also acts of direct discrimination, in addition to acts of victimisation."
The reasoning in those paragraphs requires some unpacking, which I will attempt as follows.
- The crucial part of the Tribunal's reasoning is the third sentence of para. 35. It is rather opaquely expressed, but it is in my view clear that what it means is that the reason why the secondment terminated when it did – "the reason why he had to leave it" – was that the Compromise Agreement represented a one-off ("special") deal which came to an end after two years. It is a complication, but ultimately irrelevant, that the relevant decision-takers may have made a mistake about when the two years ended.
- That finding (which is not challenged) disposes of head (c) of the complaint, in so far as it is based simply on the termination of the secondment at the time that it was: it means that the agreement came to end, even if belatedly, because the agreed period had expired, and not for any reason to do with the Claimant's race. The remainder of para. 35 is addressed to the question of the summary nature of the termination: that is part of the complaint under head (c), though no doubt of secondary importance. In short what the Tribunal says is that the decision taken in the summer of 2012 was sat on for several months and matters were then dealt with in a rush. The first part of para. 36 is simply a further refinement of that point.
- It is clear from the final sentence of para. 36 that the Tribunal regarded its conclusion in para. 35 as disposing also of the complaints in relation to detriments (d)-(f). As regards (e) and (f), that makes obvious sense, since the loss of benefits about which they complain is simply a consequence of the cessation of the secondment and the Claimant's resumption of his status as an ordinary GMP officer. As regards (d), which concerns the failure to apply the asserted five-year secondment policy in the Claimant's case, it also makes sense generally, since the complaint is essentially a variant of the basic complaint that the secondment was ended too soon. But, more specifically, the fact that the Claimant was on a special deal would explain why any such policy was not applied to him. (I should perhaps repeat that the Tribunal did not in fact find that there was any such policy in place: TITAN wanted one but its contributing forces did not agree – see para. 16 above.)
- Before us, and also in the EAT, the explanation for the ending of the Claimant's secondment, and the associated matters of which he complains, found at para. 35 was described, alluding to the Tribunal's description, as "the ineptitude explanation". That is not really accurate. The core of the explanation is simply that the agreed term of the secondment had come to an end: what was "inept" was the failure to implement the termination promptly coupled with, when DCS Horrigan eventually raised the issue, the hasty and insensitive manner of communicating it. I will refer compendiously to the reasons given by the Tribunal as "the para. 35 explanation".
- It remains to consider the Tribunal's observation at the start of para. 35 that the Claimant's success as regards his claim of victimisation undermines his claim of discrimination. That is at first sight hard to reconcile with the reasoning in the rest of para. 35, but I think the explanation lies in the earlier error in the Tribunal's reasoning identified at para. 36 above: it believed that the coming to an end of the secondment did indeed constitute victimisation, because but for the earlier claims the secondment would never have occurred in the first place.
THE RESPONDENT'S CHALLENGE TO THAT REASONING
- In his submissions to us Mr Gorton grouped his challenges to the ET's reasoning under three heads, which I take in turn.
(1) Inconsistency between decisions on Victimisation and Discrimination
- Mr Gorton's submission was that the explicit findings made by the ET in the context of the discrimination claim as to why the Claimant's secondment was terminated when, and in the way, that it was necessarily disposed not only of that claim but also of the victimisation claim. To spell it out, the Tribunal found, at paras. 35-36 of the Reasons, that the reason why the secondment came to an end – including the fact that it was not extended – was "overwhelmingly" because the agreed term of the "special agreement" with GMP under which it had occurred had run its course: thus it was not because of his race. But if that was so nor could it be because of the fact that he had done a protected act.
- Mr Gilroy in response adopted the reasoning of the EAT. As to that, Elisabeth Laing J addressed this question at two points in her judgment.
- First, at the start of her discussion of the issues she made three introductory points. The second of these, at para. 55, was that there was "no necessary logical contradiction … between the findings that the victimisation complaint succeeded and that the direct discrimination claim failed". She went on to give three reasons for that view, as follows:
"First, they are different causes of action. As the ET pointed out, in order to succeed in a direct discrimination claim, a claimant has to identify a comparator (and show less favourable treatment than would be given to that comparator); whereas no comparison is inherent in the definition of victimisation. Second, in the case of each claim, a claimant has to show a causal link between the treatment he suffers and two different things: in one case, his race, and in the other, a protected act. Third, that link does not require that the claimant's race or, as the case may be, his protected act, must be the sole cause of that treatment, as is common ground."
- As I read it, those are intended only as observations at the theoretical level, and I am not sure that they really advance the argument. Taking them in turn:
- As to the first, I am bound to say that I am not sure that the absence of an explicitly comparative element in section 27 of the Act as opposed to section 13 means that there is any substantial difference between the exercises required under them. But that point may not be straightforward[2]; what really matters is that I do not see that, even if there is some difference in the approaches required, that has any relevance to the present issue. In both (direct) discrimination and victimisation claims the essential question is what was the reason why the respondent did the act complained of. A positive finding that that reason was (innocent) reason A necessarily excludes not only tainted reason B – say, race – but also tainted reason C – say, the doing of a protected act.
- The same point applies to the Judge's second reason. Although the particular reasons that found liability in a discrimination case and a victimisation case are different, if a tribunal finds that the actual reason for the act complained of was a different, and innocent, reason, that excludes both tainted reasons equally.
- As for the Judge's third reason, I of course accept that for the purpose of liability for both discrimination and victimisation it is not necessary that the protected characteristic/act be the sole, or even the principal, reason for the act complained of. But the Respondent's submission in this case is that the Tribunal had found a complete explanation for the acts complained of, namely the para. 35 explanation; and if that is correct the possibility of those acts being motivated even partly by the fact of the Claimant's previous claim is necessarily excluded: I return to this point in the next two paragraphs.
- Elisabeth Laing J considers the issue more specifically at paras. 62-66 of her judgment. I need not set those paragraphs out. In short, she holds that on the Tribunal's reasoning "ineptitude was not a complete explanation for what had happened" but was only part of the reason. That left open the possibility that another part of the reason was the fact that the Claimant had brought his prior claim, which is what the Tribunal had previously found, on grounds that were open to it, at paras. 24-32.
- I cannot read the Reasons that way. As I read paras. 35 and 36, the Tribunal found that the reasons which it there sets out were indeed the complete explanation. I do not rely simply on the word "overwhelmingly" in the third sentence of para. 35, though it is a good start, but on the whole thrust of the reasoning that follows. It may be that the characterisation of the reason found by the Tribunal as "the ineptitude explanation" has blurred the issue. As explained at para. 43 above, ineptitude is apt as a description of only part of the explanation found by the Tribunal.
- I do not, therefore, with respect, think that Elisabeth Laing J has found a satisfactory way round the inconsistency on which Mr Gorton relies. In my view the appeal must succeed on this ground. The Tribunal's finding that the acts complained of were done for the para. 35 reasons is inconsistent with the finding that they were done, even in part, because of his previous claim. The only way in principle that the Claimant might get round that problem is to challenge the dismissal of his discrimination claim, or in any event the Tribunal's reasons for dismissing it; but he has not done so.
- It may be surprising that the Tribunal did not recognise what might seem like an obvious inconsistency in its approach to the two claims. But I suspect that the problem was that its primary reasoning on the victimisation claim did not depend on the decision-maker's motivation at all. As I point out at para. 36 above, it wrongly thought that that question could be bypassed because the Claimant got home on a "but for" analysis – what I have called the second strand in its reasoning. It is true that it did also pursue the first strand, which did focus on the motivation of the actual decision-takers; but its "but for" thinking seems to have muddied the waters generally (see, e.g., my comments on the opening sentences of para. 35 at para. 44 above).
(2) Wrong Approach to the Burden of Proof
- In the light of my conclusion on ground 1 it is unnecessary to consider this ground. To spell it out, the ET's finding that DCS Shenton and/or ACC Heywood were motivated in making their decision to terminate the Claimant's secondment by the fact that he had previously brought proceedings against the GMP was based squarely on the statutory burden of proof provisions: the Tribunal held that in the absence of any evidence from them there was no explanation of why they had taken their decision. But the burden of proof has no role in a case "where the tribunal is in a position to make positive findings on the evidence one way or the other": see the judgment of Lord Hope in Hewage v Grampian Health Board [2012] UKSC 37, [2012] ICR 1054, at para. 32 (p. 1065H); and the Tribunal has made such findings in this case.
- If the Tribunal had not in fact made a positive finding, there would have been an issue about the effect of the Tribunal's self-misdirection at para. 24 of the Reasons – see para. 29 above. Elisabeth Laing J held that the error was immaterial because if the Tribunal had asked itself whether there was material from which an inference of victimisation could be drawn "it must have said 'yes'" (see para. 61 of her judgment); and Mr Gilroy adopted that reasoning. I am bound to say that I have seen nothing in the ET's primary findings which I would regard as establishing a prima facie case that the secondment came to an end when, and in the way, that it did because (or even partly because) the Claimant had previously brought proceedings against the GMP. But I need not explore the point further.
(3) Adoption of a "But For" Approach
- This ground relies on strand 2 in the Tribunal's reasoning: see para. 35 above. Mr Gilroy accepted that it was an error but he relied on strand 1, which I have considered above. I need accordingly say nothing more about it.
CONCLUSION ON CLAIMS (c)-(f)
- I would allow the appeal under this head. The effect of my reasoning is that this is not a case where remittal is necessary and that claims (c)-(f) should be definitively dismissed: that is because on the Tribunal's findings of fact as regards the dismissal claim the victimisation claim should have been dismissed as well.
- Standing back from the details of the legal analysis, there is nothing in that outcome to make me uncomfortable. The Tribunal's conclusion in para. 35 as to the reason for the acts complained of seems to me entirely plausible and consistent with its findings of primary fact. A reasonably clear picture emerges from those findings, and from the documents quoted, that what motivated all the various actors from early 2012 onwards was a belief – held as strongly in TITAN as in the GMP (indeed perhaps more so when DCS Horrigan came on the scene) – that the Claimant's secondment ought not to continue beyond the agreed term because it was anomalous: see in particular the findings referred to at paras. 15 and 25 above. From that point of view it is immaterial that the secondment had been made in the first place in order to compromise a discrimination claim. It is also immaterial that there was some delay in reaching that decision and then in implementing it.
- My reluctance to reach a different conclusion from Elisabeth Laing J, who considered the appeal with great care, is mitigated by the facts that she says at para. 53 of her judgment that she had not found the case easy and that she was herself critical of the way in which the ET had expressed its reasons.
(B) THE HANDLING OF THE COMPLAINT
THE FACTS
- On 26 November 2012, i.e. within a few days of being informed of the decision to terminate his secondment, the Claimant had a meeting with Assistant Chief Officer Lynne Potts of the GMP. He handed her a document headed "Chronology" which set out the history of his secondment and concluded:
"DC Bailey takes issue with the process and the persons responsible for his transfer that has taken place without his knowledge. DC Bailey wants the investigators to take cognisance of the following:
1. The number of BME members of NWROCU.
2. The process undertaken for the transfer of white personnel
3. The process undertaken for BME personnel.
This sequence is contrary to the policies:
GMP Posting Policy
Diversity and Equality in Employment 20th July 2012.
Equality Act 2010.
Standards of Professional Behaviour for Police Officers."
That is plainly an allegation of racial discrimination, albeit very unspecific, against the officers responsible for terminating his secondment. I will call the presentation of that document at that meeting "the complaint". At the meeting the Claimant told ACO Potts, as the document implies, that he wanted the matters raised by it to be investigated. He apparently told her that he did not want it dealt with under the GMP's grievance procedure, in which he had no faith, but as a "professional standards complaint".
- The following day ACO Potts informed the Claimant that she had passed the complaint to ACC Sheard, who was responsible for the Professional Standards Branch ("PSB") of the GMP, and that she would contact him (Reasons para. 4.55).
- ACC Sheard made some enquiries into the history of the secondment and its termination. On 28 November 2012 she asked DCS Horrigan whether it would be possible to extend the Claimant's secondment. He refused, for the reasons given in his e-mail of 30 November: see para. 25 above.
- I should set out in full paras. 4.61-4.64 of the Reasons, which explain how ACC Sheard proceeded thereafter:
"4.61 By e-mail of 4 December 2012 A/ACC Sheard wrote to the claimant … In this e-mail she explained the position as to why the claimant's secondment could not be extended, and why he would not be entitled to any travel expenses upon his return to the GMP. She referred to the claimant's belief that the conclusion of his secondment was 'unfair and contrary to what had been agreed', and that his return to GMP and posting to Nexus House, which would entail travel costs was also 'unfair'. She makes no reference to race or discrimination issues.
4.62 In this e-mail she reiterates the rationale advanced by Det. Ch. Supt. Horrigan in relation to the former issue, from the Regional standpoint. In conclusion in respect of this issue she said:
'In conclusion, GMP have honoured the commitment to your 2 year secondment and there are no grounds on which I can extend it. Your return to GMP will therefore need to take immediate effect.'
4.63 In relation to the second issue, the travel costs, A/ACC Sheard said that she had sought advice and had been told that the policy was clear that when an officer is seconded out of force, their original posting will not be held open, and upon their return they can be posted anywhere within GMP at the force's discretion and without recourse to travel claims. She ended her e-mail with the following:
'I know this is not the outcome you were hoping for but the enquiries that I have made do not support your assertion that GMP has acted outside the agreement reached with you in 2009 nor that our policies have been applied to you in a manner that is unfair or inconsistent with the way they have been applied to others.
If you think that I have missed a material fact in my assessment of the situation then please feel free to raise it.'
4.64 A/ACC Sheard did not proceed to action the claimant's complaints of 27 November 2012 as matters of Professional Standards, and the matter was dealt with by her in the manner described above."
- In short, having failed to persuade DCS Horrigan to reinstate the Claimant, ACC Sheard rejected his complaint that his treatment was contrary to the compromise agreement or "unfair or inconsistent with the way [GMP's policies] have been applied to others". She did not carry out any further investigation; in particular, she did not address the allegations of racial discrimination.
THE NATURE OF THE CLAIM
- In broad terms it is clear that the gist of claim (g) is that ACC Sheard was wrong not to do more than she did in response to the complaint. But the arguments before us were bedevilled by the failure of the Claimant either in the ET or the EAT to specify with reference to the relevant provisions what more it is said that she could or should have done. The Respondent is also open to criticism for not seeking to clarify the position and, as will appear below, choosing to interpret the nature of the Claimant's criticism in a surprisingly restricted way. I shall have to go with some particularity through the procedural history.
- As pleaded in the ET1, claim (g) was simply that the Respondent failed "to investigate the Claimant's complaints about these matters properly". This was of course wholly unspecific. The Respondent did not ask for further particulars.
- The Respondent in his ET3 pleaded to claim (g) simply by setting out what ACC Sheard had done and making the points (i) that the Claimant had expressly said that he did not want his complaint dealt with under the grievance procedure and (ii) that he had not taken her up on her offer to raise anything that she had missed.
- In August 2014 the Claimant served on the Respondent a statutory questionnaire. The questions relevant to claim (g) were nos. 24-28. I can summarise them, and the Respondent's answers, as follows:
(1) Question 24 asked about "the procedure for recording professional standards complaints". The Respondent's answer began:
"The Respondent has interpreted this question to refer to a complaint investigated by the Professional Standards Branch under the Police Reform Act 2002.
The procedure for the recording of complaints against police is governed by that piece of legislation.
Please refer to Schedule 3 of the Police Reform Act 2002, the IPCC Statutory Guidance and Recording Standards and the Police Complaints and Misconduct Regulations 2012."
It went on to give a short summary of the procedure required by those provisions. I give further details about the requirements of the Police Reform Act 2002 ("the 2002 Act") below, but I should note at this stage that it is the statute which establishes the Independent Police Complaints Commission ("the IPCC") and that all investigations under the procedures for which it provides are under the ultimate supervision of the IPCC, even if they may be carried out by the force concerned.
(2) Question 25 asked about "the procedure for investigating professional standards complaints". The Respondent's answer referred back to the previous answer to the effect that the procedure "is governed by legislation" and again gave a brief summary of the procedures in question by reference to the requirements of the 2002 Act.
(3) Question 26 asked about "the procedure for investigating professional standards complaints in relation to the protected characteristic of race". The Respondent's answer deals with the role of the IPCC when such a complaint is made.
(4) I should set out in full questions 27 and 28 and the Respondent's answers:
"Question 27:
Please confirm why my complaint (detailed in the Grounds of Complaint in case number 2402005/2013) was not investigated by the Professional Standards Branch.
Answer
The Claimant's complaint was investigated by Assistant Chief Constable Sheard, the Head of the Professional Standards Branch at that time. It was not considered a complaint under the Police Reform Act 2002.
Question 28:
Was my complaint recorded as a professional standards complaint ? If not, why not ?
Answer
As above, the complaint was not considered a complaint under the Police Reform Act 2002.
The Claimant specifically said that he did not wish for his complaint to be considered as a grievance under GMP's Grievance Policy as he had no faith in the grievance process.
T/Assistant Chief Constable Sheard investigated the issues he raised and wrote to him with her findings on 4th December 2012. The Claimant was offered the opportunity to revert to T/ACC Sheard about her response, but he did not do so."
- It will be seen that the explicit premise on which the Respondent's answers were based was that the Claimant's case was that his complaint should have been dealt with under the regime established by the 2002 Act and thus with the potential involvement of the IPCC. That being the premise, the reason for not dealing with it in that way was that it "was not considered [to be] a complaint under the Act". That was also ACC Sheard's evidence to the Tribunal.
- Before the ET there was no challenge by the Claimant to that characterisation of his complaint. The Tribunal was not referred to the terms of the 2002 Act at all – nor, to anticipate a point considered below, to the terms of the Police (Conduct) Regulations 2012, which govern the investigation of breaches of professional standards. There does appear to have been some evidence, referred to at para. 4.69 of the Reasons, about the stance taken by the IPCC to complaints by one police officer against another: the Tribunal there found that
"From April 2008 … the IPCC accepted that … allegations of discrimination … by one police officer against another could … be investigated by the IPCC as Professional Standards issues."
That finding seems to be based on a single page in the tribunal bundle extracted from the IPCC's then current "Statutory Guidance", which notes that such an allegation may constitute a "recordable conduct matter" (and thus fall under Part 2 of Schedule 3 to the 2002 Act).[3]
- The relevant parts of the 2002 Act and also the Police (Conduct) Regulations 2012 were in the bundle before the EAT. They were the subject of some submissions, though it is not clear to what issue they were addressed: Elisabeth Laing J refers to the statutory materials, at para. 70 of her judgment, but only in connection with a tangential point which is no longer live before us. We were, however, taken through them in a little detail. The position turns out to be more complicated than the ET appreciated. There are in fact two distinct regimes relating to police misconduct. In very broad (and possibly not perfectly accurate) summary:
(1) The 2002 Act. Schedule 3 to the 2002 Act is entitled "Handling of Complaints and Conduct Matters etc". Part 1 is concerned with "Complaints", which are defined in section 12 (1) of the Act as complaints "about the conduct of a person serving with the police" made by (essentially) a member of the public. Part 2 is concerned with "conduct matters", which are defined in section 12 (2) as matters which are not the subject of a complaint but where there is an indication that an officer may have committed a criminal offence or behaved in a manner which would justify the bringing of disciplinary proceedings. Both Parts set out the criteria governing whether a complaint or conduct matter should be referred to the IPCC, in which case its further handling would be the responsibility of the IPCC, although one course open to it is to require the investigation to be handled by the PSB of the force in question.
(2) The 2012 Regulations. The 2012 Regulations[4], which are made under the Police Act 1996, prescribe at Schedule 2 "Standards of Professional Behaviour". Those standards include an obligation not to discriminate unlawfully. "Misconduct" is defined by regulation 3 (1) as breach of the standards in Schedule 2. By regulation 12 (read with regulation 5), where an allegation of misconduct comes to the attention of (generally) the chief officer of a force an assessment must be made of its "severity". The action to be taken depends on that assessment; but if the conduct alleged would be capable of amounting to misconduct there must at least be an investigation, except where the regime of the 2002 Act applies. In practice all police forces have a professional standards branch which carries out such investigations where required.
- In a section of his skeleton argument for this appeal headed "Background and Essential Statutory Material" Mr Gorton said that the ET's reasoning appeared to imply that in every case where an allegation of discrimination was made, whatever the circumstances, a force would be obliged to refer it to the PSB for an assessment under regulation 12 of the 2012 Regulations; and that if so that was a matter of concern and of some general importance. I am bound to say that I find it hard to see how that could be said to be what the ET meant, in circumstances when it had not even been referred to the 2012 Regulations; but in any event Mr Gorton did not make any detailed reference to the Regulations, and the point in question was raised only as a preliminary to consideration of the actual grounds.
- In his skeleton argument for the Claimant Mr Gilroy gave a much fuller exposition of how both the 2002 Act and the 2012 Regulations worked. He accepted that the Claimant had not "technically" raised a complaint within the meaning of Part 1 of Schedule 3 to the 2002 Act: he did not say why, but I take it to be at least in part because, as noted above, the statutory definition does not cover complaints by one officer against another. He accepted that it followed that the position adopted by the Respondent in the questionnaire and by ACC Sheard in her evidence was correct on the basis of their apparent understanding of what his complaint was. But he contended that the Claimant should have been understood to be alleging a breach of the prescribed standards of professional behaviour within the meaning of the 2012 Regulations, calling for (at least) a formal assessment of its severity under regulation 12, and/or as raising a "conduct matter" within the meaning of Part 2 of Schedule 3 of the 2002 Act, which does apply to complaints by one officer against another. It was also part of his case that even if in the end a legitimate decision had been taken that no investigation was required the complaint should in any event have been formally recorded.
- In response to that aspect of Mr Gilroy's skeleton argument the Respondent lodged a supplementary skeleton argument from Mr Gorton advancing his own analysis of the application of the 2012 Regulations and of Part 2 of Schedule 3 to the 2002 Act in the circumstances of the present case. Mr Gorton argued among other things that neither the 2012 Regulations nor the 2002 Act imposed any relevant obligation in a case where no allegation was made against a named individual.
- It is very regrettable that the relevant statutory materials were not put before the ET and that issues about their detailed application only emerged in the late and piecemeal way described above. As a result, entirely pardonably, the ET's understanding of the relevant regimes was garbled. For example, as Mr Gorton submitted, its finding at para. 4.69 (see para. 70 above) that the IPCC could investigate "allegations of discrimination … as Professional Standards Issues" is wrong: allegations of complaints of breaches of professional standards are not, as such, a matter for the IPCC at all. Potentially more seriously, the cross-examination of ACC Sheard may have proceeded on an inaccurate basis.[5] I shall have to consider below to what extent this problem vitiates the Tribunal's reasoning and conclusion. Mr Gilroy acknowledged that the parties' failure to assist the Tribunal in this respect was "a matter of mutual embarrassment".
THE ET's REASONING
- As with the other part of the appeal, there are some problems about the way in which the Tribunal expresses its reasons, and I will have to go through them in some detail; again, in doing so I will at some points have to anticipate the issues before us.
- The ET begins its discussion of claim (g), at para. 39 of the Reasons, by recording that the reference to the complaints being investigated "properly" meant referring it to "Professional Standards". It says that there is "no dispute that they were not so dealt with" but that the question is whether that was done because of his race and/or because he had done a protected act.
- The statement that there was no dispute that the complaint was not referred to Professional Standards (which must mean the PSB), and so was not investigated properly, needs some unpacking. Strictly speaking, the Claimant's complaints had been referred to the PSB, because ACC Sheard was its head. However that is over-technical, because the gravamen of the claim clearly is that there were steps that the PSB should have taken by way of investigation beyond those that were in fact taken. As to that, the Respondent's case was, as we have seen, that it was unnecessary to investigate under the 2002 Act procedures, which were understood to be the only ones relevant, because the complaint did not fall within the terms of the Act. On that basis I do not think it is right to describe it as "not in dispute" that there had been a failure to handle the complaint properly. What I think the Tribunal meant is that it was not in dispute that no further steps had in fact been taken.
- At para. 38 the ET proceeds to identify the relevant protected act. It might be thought that this at least would be uncontroversial. The protected act pleaded by the Claimant was the bringing of its original discrimination proceedings, as in the case of claims (c)-(f), and the Tribunal so recorded. However, entirely of its own motion, it went on to identify a second protected act, namely the complaint itself, i.e. the Claimant's presentation of his "Chronology". This was, with respect, plainly illegitimate, because it is not for the tribunal to devise ways of putting the case which the parties themselves have not advanced; and if objection had been duly taken in the Respondent's grounds of appeal to the EAT I have little doubt it would have been upheld (though it is another matter whether it would have affected the ultimate outcome). But the point was initially overlooked and it was only later that an application was made to amend the grounds in order to take it. Permission was refused on the papers, and the application was not renewed orally. Accordingly the issue was not before Elisabeth Laing J. Despite that, the Respondent sought in his Appellant's Notice to revive the point before us, and a good deal of ink was spilt in the skeleton arguments about whether he was entitled to do so. But there is an obvious difficulty in allowing him to pursue a point before us which he was refused permission to take in the EAT and when the matter was not taken further at that stage. If the point were in truth a knock-out blow I might nevertheless have been tempted to make an exception, but I do not believe that it is, since the Tribunal relied also on the original protected act in any event.
- At para. 39 the Tribunal records that the Respondent has not argued that "not having his complaint investigated by Professional Standards" was not a detriment.
- The Tribunal begins para. 40 by stating that since, as established in the preceding paragraphs, the Claimant had done a protected act and suffered a detriment "the burden of proof then shifts to the respondent". That is of course the same error as it made in relation to claims (c)-(f): see para. 29 above. I return to the consequences of this error later. However on that basis the Tribunal goes on to consider ACC Sheard's explanation for not doing more than she did. It refers to the fact that in her evidence she had said that the reason why she did not "treat the complaint as a matter for Professional Standards" was that "it was not considered a complaint under the [2002 Act]"; and it noted that this accorded with the answer to question 27 in the statutory questionnaire. It continues, at para. 41:
"This explanation is hard to accept. If it was genuinely A/ACC Sheard's view, it is hard to see how she could reasonably hold it. The claimant's ["Chronology" document] clearly states that the matters of which he complains were contrary to the Standards of Professional Behaviour from Police Officers. It was received by ACO Potts, who by e-mail of 27 November 2012, copied to A/ACC Sheard, told him that she had forwarded his paperwork to her, and said that she was 'responsible for the Professional Standards Branch'. ACO Potts appears to have understood that it was a Professional Standards matter, and the e-mail copied to A/ACC Sheard should have alerted her to that fact as well."
At para. 42, which I need not set out, it amplifies the point that the attempts which ACC Sheard made to persuade DCS Horrigan to extend the Claimant's secondment did not meet the complaint because she did not "instigate that which he had asked for, and which, it seems clear, he was entitled to ask for, namely a Professional Standards investigation".
- The Tribunal then proceeds to its dispositive reasoning at paras. 43-45 of the Reasons, which I should set out in full:
"43. The question arises, therefore of whether this was less favourable treatment than was received by an actual, or would be received by a hypothetical, comparator. No actual comparator is relied upon, unsurprisingly, and hence the tribunal can only consider the position of a hypothetical comparator. The tribunal's view is that a hypothetical white comparator would not have been treated in this way, even one who was in the same position by reason of having made an agreement which resulted in a secondment which ended in these circumstances. Any other person complaining that his or her treatment was contrary to Professional Standards would have had their complaint dealt with appropriately, or an explanation of why it was not being dealt with by Professional Standards. A/ACC Sheard does not even explain that she is not referring the matter to Professional Standards, let alone why.
44. Whilst the claimant's ["Chronology" document] clearly makes reference to race – he actually refers to the number of BME members of NWROCU, and the processes for transfer undertaken for both white and BME personnel – and goes on to assert breach of the Diversity and Equality in Employment policy, and the Equality Act 2010 A/ACC Sheard's substantive reply to him by e-mail of 4 December 2012 … makes no reference at all to race. Instead she refers to the claimant's belief that the conclusion of his secondment was 'unfair and contrary to what had been agreed', and that his return to GMP and posting to Nexus, which would entail travel costs was also 'unfair'. She goes on to address those complaints, and to reject them. Nowhere, however, does she mention race, nor the claimant's obvious complaints that not only was his treatment 'unfair', and in breach of that was agreed, but also that it was discriminatory. In short, A/ACC Sheard avoids any reference to race, and the complaints that the claimant was actually making.
45. This brings us to the next consideration, the 'reason why' test. Why did A/ACC Sheard treat the claimant this way? In our view, the inference to be drawn from her evidence, the documents, the replies to the Questionnaire, and, though to a rather lesser degree, the reports and previous findings of racism within the respondent's force, is that she treated him this way because the very matters he was raising were connected to his race. There was clearly an embarrassment and sensitivity felt by the respondent about the claimant, and how his situation had been handled. The obvious inference is that A/ACC Sheard, consciously or sub-consciously, did not want to respond to the claimant's complaints as race complaints by referring the matter to Professional Standards, as this would potentially escalate the issue. Her initial attempts to resolve the matter by approaching the NWROCU were understandable, and might have achieved a practical resolution which may have satisfied the claimant. Once, however, that was not going to be possible, she clearly then, as she probably now realises, ought to have passed the matter on to Professional Standards. That she did not do so, in our view, was because the claimant had raised complaints of race discrimination, and either as victimisation, or direct discrimination, the claimant's claim in this regard succeeds."
- Although in those paragraphs the Tribunal again treats the "less favourable treatment" and "reason why" questions as distinct, its treatment of the two questions has to be read as a whole. The essential basis of its finding of discrimination and victimisation was that it found that ACC Sheard was, consciously or sub-consciously, affected by the embarrassment to the force of having to investigate a further race complaint by an officer who had already made such a complaint and that that influenced her decision not to take matters any further under whichever procedure was appropriate. That finding represents an inference from "[ACC Sheard's] evidence, the documents, the replies to the Questionnaire, and … the reports and previous findings of racism within the respondent's force".
THE GROUNDS OF CHALLENGE
- The pleaded grounds of appeal as regards claim (g) are rather diffuse, and in any event the oral argument took a rather different course as a result of the discussion of what the requirements of the 2002 Act and the 2012 Regulations in fact were. I think the best way forward is to take in turn the steps in the Tribunal's reasoning.
- The starting-point is that the Tribunal unquestionably misdirected itself at para. 40 about what was required to reverse the burden of proof: see para. 81 above. Elisabeth Laing J acknowledged this at para. 74 of her judgment, but I agree with her that the error is not material, since the Tribunal went on in the following paragraphs to make a positive finding about what motivated ACC Sheard based on inference from the particular factors which it identified.
- I therefore turn to paras. 41 and 42. This is where the Tribunal finds that ACC Sheard's explanation of why she had not "referred [the complaint] to Professional Standards" is "hard to accept". That finding is important because it was one of the matters on which the Tribunal expressly relies in para. 45 to find a discriminatory motivation. The confusion about the precise nature of the Claimant's case creates a real problem here. As I have shown above, the Respondent explicitly stated that it understood that case to be that his complaint should have been dealt with as a complaint under the 2002 Act. I am bound to say that I find that understanding surprising. Although the Claimant may or may not himself have understood the distinctions involved, I would have expected a PSB professional to have viewed the complaint as falling under the 2012 Regulations: the key point is that he was alleging a breach of "professional standards", which is the language of the 2012 Regulations, and indeed referred expressly to the "Standards of Professional Behaviour" which are scheduled to those Regulations.[6] But that was not the basis on which the Tribunal found ACC Sheard's explanation to be unreasonable. As I have explained, there had been no challenge to the Respondent's professed understanding of the way the case was put, and the Tribunal had accordingly not seen the terms of the 2012 Regulations, or indeed the 2002 Act. Rather, it based its conclusion on the broad point that because the claim raised a "professional standards matter" it required to be investigated. That was not an answer to the point actually being advanced by AAC Sheard, namely that the complaint was not a complaint within the terms of the 2002 Act – which, on the unchallenged premise on which she was proceeding, was not only reasonable but right (see para. 73 above).
- I am very tempted, however, to side-step this bog of confusion and conclude that the Tribunal was right to find ACC Sheard's stance unreasonable even if it got there by the wrong route. The gravamen of the Claimant's claim was not that she had failed to follow this or that specific procedure but simply that there had been no investigation at all. As I have already said, his complaint looks to me very like a complaint under the 2012 Regulations, in which case he was entitled to a formal assessment under regulation 12 and, perhaps, depending on the outcome of that assessment, to an investigation (see para. 71 (2) above), and I do not see why it did not look that way to ACC Sheard too, in which case her explanation based on the 2002 Act was irrelevant. I will for the present proceed on the basis that her failure to treat the claim as falling under the 2012 Regulations and requiring at least an assessment on that basis was unreasonable. But in doing so I must record two qualifications (which are indeed to some extent related):
(1) I feel uneasy about proceeding on a basis which was never put to ACC Sheard in cross-examination. It may be that if she had been asked why she did not consider the 2012 Regulations she would have had an answer that was reasonable, or maybe even right, even though I cannot at present see what it might be.[7]
(2) Mr Gilroy did not advance any answer to Mr Gorton's point (see para. 74 above) that there was no obligation to proceed further even under the 2012 Regulations in the absence of an allegation against an identifiable individual.
Those caveats should be regarded as parked at this stage rather than dismissed.
- That brings us finally to paragraphs 43-45 and to the four matters on which the Tribunal said that it based its decisive finding: see para. 82 above. Mr Gorton submitted that its reasoning in relation to each of those matters was flawed. I take them in turn.
- The first is "[ACC Sheard's] evidence". The reference must be to her evidence as summarised in para. 40 of the Reasons, in which she gave an explanation of her conduct which the Tribunal at para. 41 found to be unreasonable and "hard to accept". Mr Gorton submitted that that was not enough. An unreasonable explanation may nevertheless be a genuine explanation. If the Tribunal was going to find that the true explanation for ACC Sheard's conduct was other than one she gave it needed to make an express finding to that effect, which it did not do. He reminded us of the well-known decisions of the EAT and this Court in Bahl v The Law Society [2003] UKEAT 1056/01, [2003] IRLR 640, and [2004] EWCA Civ 1070, [2004] IRLR 799, and also of the EAT in Griffiths-Henry v Network Rail Infrastructure Ltd [2006] UKEAT 0642/05, [2006] IRLR 865. He submitted that in the absence of such a finding the claim must fail.
- I do not accept that submission. It is wrong to read para. 41 in isolation from the Tribunal's eventual finding in para. 45. Reading the two together, it is clear that it did indeed make a positive finding that the explanation given by ACC Sheard did not represent her actual motivation – or in any event the totality of her motivation. That does not mean that it found that she was lying in her evidence. The vitiating motivation may well have been entirely subconscious, as the Tribunal expressly contemplated, so that her evidence denying it may have been honest but wrong. It was entitled to rely on the unreasonableness of her conscious motivation as an indication that she was in fact also motivated by the other considerations which it identified.
- The second element which is relied on by the Tribunal in support of its inference is "the documents". Unfortunately there is no indication of what documents it is referring to, and Mr Gorton submitted that that was a serious breach of the Tribunal's obligation to explain its conclusions: see, classically, Meek v City of Birmingham District Council [1987] IRLR 250.
- Elisabeth Laing J rejected a similar submission on the basis that the reference was to "all the documents in the bundle" (see para. 75 of her judgment); but I do not think that gets round the problem. Mr Gilroy submitted that the reference to "the documents" was inadequate but not fatal. I will consider later whether I can accept that submission.
- The third element on which the Tribunal said it relied is "the replies to the questionnaire". This is evidently a reference to the statutory questionnaire, but the Tribunal gives no indication of which particular replies it had in mind or why they supported the drawing of the inference in question. It is of course very common for tribunals in the final section of their Reasons to refer summarily to points discussed in more detail at an earlier stage. But there is no relevant earlier discussion here. The Tribunal sets out at para. 4.68 part of the response to question 27 (see para. 68 (4) above) and observes at para. 40 that that is in line with ACC Sheard's explanation for not investigating the complaint accorded with the reply to question 27 (see para. 81); but there is no consideration of what inferences that answer might support.
- Mr Gorton submitted that the Tribunal must in fact have been referring to Ms Del Priore's written closing submissions, of which we were shown a copy. These set out (at para. 30) the terms of section 138 (4) of the 2010 Act, which provide that a tribunal may draw inferences (a) from a failure by an employer to answer a question timeously and (b) from "an evasive or incomplete answer". At para. 12 of those submissions Ms Del Priore refers to witnesses, including in particular Ch Supt Ball, having been cross-examined on the basis that the Respondent's answers to questions 30-32 were "incomplete or evasive". At para. 45 she invites the Tribunal to draw inferences "that the Claimant's race and/or his protected acts … were a material part of the Respondent's reasons … in treating him in the way he complains of" from all the circumstances including twelve particular matters labelled (a)-(l): the paragraph is concerned with the entirety of the claims advanced and not specifically with the claim about the handling of his complaint. The only item referring to the questionnaire is (f), which reads
"failure to answer the Statutory Questionnaire in time and failing to provide answers to certain questions, notably the questions at 30 to 32 of the Questionnaire".
Questions 30-32 are not concerned with "claim (g)" but are concerned with how widespread knowledge was of the Claimant's original claims and the compromise agreement. Mr Gorton submitted that it was apparently those submissions that the Tribunal had in mind but that if so they were plainly irrelevant to the question of ACC Sheard's motivation. He reminded us of the importance of not taking a mechanistic approach to the inferences that can be drawn from a failure properly to answer the statutory questionnaire: see D'Silva v NATFHE [2008] UKEAT 0384/07, [2008] IRLR 412.
- If those were indeed the "replies" that the Tribunal had in mind, Mr Gorton's point seems to be well-founded. But were they ? In para. 76 of her judgment in the EAT Elisabeth Laing J proceeded on the basis that the Tribunal was referring to the Respondent's answer to question 27 and had found it to be "evasive". She held that it was entitled to do so. That may be right, particularly as that answer is the only one which the Tribunal sets out. But I do not think it is self-evident. No submission had been made to the ET that that answer was evasive, at least so far as the written submissions show[8]: Ms Del Priore did refer to the answer to question 27 (see para. 26 of her submissions), but only as part of the evidence of ACC Sheard's approach and not in order to criticise its adequacy. I also think that, whatever else might be said about the answer, it is not easily characterised as "evasive". There is the further point that the Tribunal's reference is to "replies", in the plural: that is in no way decisive, but it tends to point away from a reference to question 27 on its own. The truth is that it is simply not clear what the Tribunal had in mind, which is itself a significant criticism of its reasoning.
- The final element is the Tribunal's reference to "reports and previous findings of racism within the respondent's force". This refers back to para. 4.70 of the Reasons, where the Tribunal says:
"Reports were provided to the tribunal in the Bundle which were relied upon as supporting a contention that the respondent was institutionally racist. These are the 'Learning Lessons' report by Nubian Consultants, 'Review of the case of Chief Inspector Karin Mulligan', and an IPCC report of July 2014, though this, of course, post dates the matters complained of."
Nothing more is said about the contents of those reports or how they supported the case that ACC Sheard was motivated, at least to some extent, by an embarrassment about the fact that the Claimant was alleging racial discrimination and had done so before.
- Mr Gorton submitted that it was wrong in principle of the Tribunal to take these reports into account at all, even "to rather lesser degree". It was concerned specifically and only with what motivated ACC Sheard. For that purpose it was irrelevant that other individuals in the force had on other occasions acted in a discriminatory manner. And even if, notwithstanding that submission, there was some material in the reports that could properly shed some light on her motivation it was necessary for the Tribunal to explain with sufficient particularity what that material was.
- The same submission was made to Elisabeth Laing J. She dealt with it briefly at para. 77 of her judgment by saying that it was legitimate for the Tribunal to give this material "limited weight" as "background information". She said that it was unfortunate that the Tribunal had used the phrase "institutional racism"[9] but that that did not constitute an error of law.
- I would not accept Mr Gorton's submission that material showing discriminatory conduct or attitudes elsewhere in a particular institution is always inadmissible in considering the motivation of an individual alleged discriminator. Authoritative material showing that discriminatory conduct or attitudes are widespread in the institution may, depending on the case, make it more likely that the alleged conduct occurred, or that the alleged motivations were operative. Or there may be some more specific relevance: in the present case, for example, it is not implausible that the fact that the GMP had been the subject of two recent reports of racist conduct or attitudes by its members might have served to increase the sensitivity or embarrassment which the Tribunal found had influenced ACC Sheard's thinking. But such material must always be used with care, and the Tribunal must in any case identify with specificity the particular reason why it considers the material in question to have probative value as regards the motivation of the alleged discriminator(s) in any particular case: as Elisabeth Laing J put it, there is no "doctrine of transferred malice". It is clear that the Tribunal's reasoning does not pass that test.
CONCLUSION
- The end result of that exercise is that there are flaws in the process by which the Tribunal drew the inference on which it relied and explained its reasons for doing so. I have considered anxiously whether those flaws are sufficient to vitiate its overall conclusion. Taken individually, they might not do so: for example, the single unspecific reference to "the documents" would certainly not be fatal. But when they are taken cumulatively I have come to the reluctant conclusion that its finding about ACC Sheard's motivation is unsafe. My reluctance is mitigated by the fact that, although I have been prepared to proceed on the basis that her apparent belief that the Claimant's complaint fell to be treated by reference to the 2002 Act, rather than the 2012 Regulations, was unreasonable, I am rather uncomfortable about that assumption for the reasons given at para. 87 above.
- Since none of those reasons means that it would not have been open to the Tribunal to make a finding of discrimination against ACC Sheard had a proper reasoning process been followed this part of the claim will have to be remitted to the ET. My strong provisional view, although I would consider any submission to the contrary, is that in the circumstances of this case the remittal will have to be to a differently-constituted tribunal. It is very regrettable that that means that there will have to be a further hearing on the facts; but at least the issues are comparatively limited.
- Having said that, I would strongly urge the parties to consider whether this sole remaining part of the claim cannot now be compromised. It was always, as I understand it, secondary to the claims based on the terms of the secondment and its termination, and although of course I am not in a position to express a concluded view it is hard to see that the compensation that the Claimant might recover if he were to succeed would be very substantial, particularly in circumstances where essentially the same complaint that he wanted the PSB to investigate has now been the subject of legal proceedings and has failed.
Sir Patrick Elias:
- I agree.
Lady Justice Gloster:
- I also agree.
