Appeal No. EAT/1138/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 12th July 1995
		26th January 1996
	Judgment delivered on 7th May 1996

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR J R CROSBY

	MISS A MADDOCKS OBE

Ms L ROSTANT	APPELLANT

COMMISSIONER OF POLICE 	RESPONDENTS
 FOR THE METROPOLIS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J ANDRE ROSTANT
Representative

For the Respondents	MISS M CARSS-FRISK
(of Counsel)
Metropolitan Police Solicitors
New Scotland Yard
Broadway
LONDON SW1H 0BG

MR JUSTICE MUMMERY (PRESIDENT)                      This is an appeal from the decision of the Industrial Tribunal held at London (South) over a period of 16 days in April, May, June and July 1994.  In Extended Reasons (31 pages) notified to the parties on 24th October 1994 the Industrial Tribunal explained why they had reached the unanimous decision  that Ms Louisa Rostant had not been discriminated against by the Commissioner of Police for the Metropolis ("the Commissioner") contrary to the provisions of the Race Relations Act 1976 ("the 1976 Act").  She served a Notice of Appeal at the end of November 1994.  The hearing of the appeal started on 12th July 1995 and was adjourned part heard until 20th November 1995.  Unfortunately, because of other commitments of members of the Tribunal, the hearing was adjourned to 26th January 1996 when the arguments were completed.

	Ms Rostant's brother argued the appeal on her behalf.  Ms Carss-Frisk argued for the Commissioner.  We are grateful to both of them for their assistance.

Background Facts
	The findings of fact by the Industrial Tribunal were detailed and may be summarised as follows:-
	(1)  Ms Rostant is 30 years old and is recognised as a member of an ethnic minority.  Her mother is from the Republic of Ireland and is white.  Her father is from Trinidad and is of mixed race; his father was of mixed white Creole and Afro Caribbean race and his mother was of mixed Carib and Indian creole race.  She is not of mixed race in appearance.  She has spent most of her life in Vauxhall and Kennington.

	(2) On 28th November 1988 Ms Rostant joined the Metropolitan Police as a probationary constable.  She was with an intake of 200 at the Training College, Hendon.  The course involves assessment at various stages following formal tests.  A grade is awarded and percentage marks are given.

	(3)  Ms Rostant made a satisfactory start, but this standard was not maintained.  She was referred to the Training Support Unit which helps probationers experiencing difficulties.  Along with some others, she was required to repeat five weeks' training and joined the following course.

	(4)  According to reports at the end of her training she achieved the bare minimum of knowledge required to complete the course.  She sometimes displayed puzzling behavioural traits which were difficult to assess and to describe.  She had a tendency to assume that those advising her were wrong and that she was right.

	(5)  After training she was posted, at her request, to operational duties at Brixton, which was convenient for her home and of which she had prior knowledge.  She held firm views about policing policy in Brixton.  She thought that the police were too ready to stop and search Black people without good reason.  She attended a two-day course at Bristol for police from ethnic minority backgrounds.

	(6)  On arrival at an operational station after Hendon Ms Rostant was placed on a street duties course under the direction of an experienced sergeant (Sgt. Dawson), assisted by several course tutors of sergeant or constable rank.  There were three other probationers on the course.  Time on the course was spent in familiarisation with duties within the station and a variety of duties on foot and by vehicle outside the station.  For most of the time a probationer does not go out alone, but is accompanied either by a tutor or another probationer.  Ms Rostant was accompanied on occasions by a Sgt. Hadland and also by Acting Sgt. Young.  Soon after the course began Sgt Dawson became aware that she was from an ethnic minority, but acting Sgt. Young could not recall whether he knew of her ethnic background at that time.

	(7)  From an early stage in the first street duties course Ms Rostant was told by Sgt. Dawson and other tutors that she should be more assertive, that she should do more self-generated work in the form of stopping and searching suspected persons.  Self-generated work is of a pro-active type to which considerable importance is attached, throughout the street duties course and subsequently during probation, as providing evidence that a probationer constable can detect certain forms of crime and be sufficiently assertive when the occasion requires.  Examples of self-generated work are the stopping and searching of suspected persons for drugs or weapons, the stopping of motor vehicles after traffic offences  or on suspicion in order to detect such offences as driving without a licence or without insurance.  Probationary constables are not, however, given any specific achievement targets for self-generated work.  The amount and type of work depends on a number of variables, such as the area in which the constable is operating, the type of crime likely to be found there, the time of year and time of day.  It is, however, the practice to compare a probationer constable's performance over a period with that of other probationer constables working in the same station and the same policing areas at the same time.

	(8)  When Ms Rostant was told that she should do more self-generated work and show willingness to stop on suspicion, she was uneasy with that advice.  She felt that she was being ask to "bump up" her figures and that her powers of discretion were being removed or diluted without proper regard to her local knowledge.  She accepted that her pattern of work did not differ from that of other probationary constables on the street duties course.  She did not go out more or less frequently with tutors than other probationers did.

	(9)  On the completion of the street duties course the report prepared by Acting Sgt. Young was unfavourable to Ms Rostant.  That report was compiled on the basis of his own observations and of a record kept in the station compiled by all officers who accompanied probationer constables.  She was said to have produced an unsatisfactory record of work, particularly self-generated work.  She appeared to resent advice given to her and not to follow it.  The conclusion of the report was that serious consideration should be given to Ms Rostant's future.  It was the opinion of all the tutors who worked with her that her attitude and performance had been seriously lacking.

	(10)  After the first street duties course Ms Rostant joined the relief or shift on street duties at Brixton Station, in common with other probationer constables who had been on the course with her.  She was under the tutelage of Sgt Hadland who had assisted her in training on the first street duties course.  After supervising her for four or five weeks Sgt Hadland prepared a report on her performance.  The Inspector in charge, Inspector Algar, wrote a report on 9th October 1989 based on Sgt Hadland's report.  Sgt Hadland's report was critical of Ms Rostant's performance in various respects.  Inspector Algar agreed with Sgt Hadland's remarks and commented that he had spoken to Ms Rostant and told her that, if she wished to complete her probation, her work must improve significantly.  One of the areas in which she was told she needed to improve was that she must volunteer for more work and generate more work of her own.

	(11)  On 23rd October 1989 a case conference was held to review Ms Rostant's progress.  It was attended by Chief Inspector Aitchison, who was in charge of the station, Inspector Clark, Inspector Algar and Sgt Shell, who had by that time taken over from Sgt Hadland as Ms Rostant's tutor.  The case conference recorded that Ms Rostant had significantly under-achieved and had failed to become involved and take responsibility for her actions.  She appeared to lack confidence and undervalued her authority role.  It was also considered that her manner was disrespectful and ill disciplined towards her seniors.  It was decided that monthly reports on her, which had begun after the street duties course, would continue in November and December and that she would be served with a notice signifying low achievement on the practical side and be given clear indications of the need to make a sustained improvement.  She was given the document dated 31st October 1989 by Inspector Algar advising that she was required to demonstrate her sustained improvement in performance and that she should bear in mind and act on the advice given her during their discussion on 9th October.

	(12)  The next report on Ms Rostant was prepared by Sgt Shell.  That recorded that she had been posted on outside duties during the previous month, mainly foot patrol and on occasions in a police vehicle with a more experienced officer.  The comment was that she had shown slight improvement, but still appeared to lack confidence in dealing with situations on the street and in basic police procedure.  Sgt. Shell advised that she should remain on monthly reports until a significant improvement was shown.

	(13)  In December 1989 another monthly report was produced by Sgt. Shell.  Early in 1990 Ms Rostant attended the second street duties course for two weeks during which she was asked to tackle new areas of police work, such as detective work, which she had not attempted before.  On 10th May 1990 there was a further case conference to discuss her progress and development.  The conclusion of the case conference was that she was unlikely to become a good and efficient constable.  It was recommended that action should be instituted to terminate her employment under Regulation 17 of the Police Regulations 1987.

	(14)  On 1st July 1990 Ms Rostant wrote to Assistant Commissioner Wyn Jones, who was responsible for personnel and training in the Metropolitan Police.  She referred to the recommendation for dismissal and criticised various aspects of her probationary period.  That letter was stated by the Tribunal to contain the first recorded reference by her to alleged racial discrimination.

	(15)  The report of the case conference went to Acting Assistant Commissioner Mitchell, in the absence of Assistant Commissioner Jones.  Although he agreed the performance of Ms Rostant was far from satisfactory, he was concerned over the procedural issues, primarily because she had not been informed of or invited to the case conferences considering her future and had not had access to her personal file when it was requested.  He directed that application be made to the Home Office for a six month extension of the probationary period and that was granted.  He set down a programme of action requiring Ms Rostant's transfer to another division in the same area to enable her to gain a fresh start.  Ms Rostant was transferred to the Clapham division.  Ms Rostant was critical of the abrupt way in which the transfer was effected.

	(16)  There was a further case conference on 23rd August 1990, as required by Acting Assistant Commissioner Mitchell.  It was chaired by Chief Superintendent Miller Wilson, who was in charge of the Clapham division.  At the conference five points were addressed to Ms Rostant as requiring her attention if she was satisfactorily to complete her course; she was to be more assertive and firm where necessary and to be more willing to produce self motivated work.  Monthly reports would be completed on her progress commencing on 20th September 1990.  The first report was made by Sgt. Fullalove on 21st September 1990.  The report was commented on by the Inspector in charge of C Relief, Inspector Eldridge, who concluded that, if Ms Rostant was to succeed in the service, she must make a greater effort to produce some self generated work which she was not achieving, even with considerable help.

	(17)  There was a case conference on 26th September 1990 and further reports by Sgt Fullalove in October 1990, December 1990 and lastly on 28th January 1991.  There were further case conferences.  The next written report on Ms Rostant was made by Sgt Lumb on 24th March 1991.  Sgt Fullalove had left Clapham on his promotion.  That report again referred to the small number of arrests arising from self-generated work.

	(18)  On 8th May 1991 Inspector Eldridge completed a lengthy report on the whole of the extended probationary period which Ms Rostant had served in the Clapham division.  He made particular reference to her lack of self-generated work.  His conclusion was that Ms Rostant had not reached the standard which he would expect of a probationer constable and that her appointment should not be confirmed.  That report was counter -signed by Chief Superintendent Miller-Wilson who recommended that Ms Rostant should not be confirmed in appointment.  In interview on 14th May 1991 he informed her of his recommendation.  An appraisal interview was arranged for 17th May.  Ms Rostant informed Chief Superintendent Miller-Wilson that she had taken independent advice and did not wish to have an appraisal interview, as it would not be in her interests.  She made no representations about the recommendation, other than to intimate that she intended to resist any attempt to dispense with her services.  She did not attend the appraisal interview at the time stated.  She attended later and was told that the recommendation would be that she had failed to show sustained improvement in her work and that her appointment should not be confirmed.

	(19)  The reports recommending termination of Ms Rostant's service were received by Assistant Commissioner Winship, the officer authorised to take action to terminate the services of a constable.  He read the reports and formed the view that there were certain inconsistencies.  Accordingly he interviewed Ms Rostant on 20th May 1991.  The purpose of the interview was to give her a final opportunity to prove sustained progress during a limited period of time.  He decided to apply to the Home Office for a further extension of her probation.  She informed him that she decided not to accept another extension of her probation.  The probation was extended by four months until 28th September 1991.  Ms Rostant was informed of this by a letter dated 28th May 1991.  In the letter Assistant Commission Winship said that, if Ms Rostant was to be confirmed as a constable at the end of the probationary period, a significant improvement in her overall performance would be expected.  The letter set out particular areas in which progress was needed.  Reference was made for the need for improvement in the volume and quality of her self-generated work in the field of arrests and process reports of all kinds, stopping and search where justified.

	(20)  Ms Rostant replied on 26th June 1991 referring to the criticism of her failure to generate work.  Her comment was that it was not the business of a police officer to generate work.  She referred to certain documents, such as the Hendon Training Manual and the Attorney General's Guidelines.  She stated that pressuring new officers to generate work went against the spirit of PLUS, which set out the principles of policing and the police statement of common purpose and values.  It also represented an unrealistic approach to policing in Lambeth.  That letter was referred to Assistant Commissioner Mitchell.  He wrote to Ms Rostant on 31st July reiterating the points made by Assistant Commissioner Winship.

	(21)  Although Ms Rostant was opposed to the extension of her probation, she continued to report for duty at Clapham.  She continued to work on C Relief under the supervision of Sgt Lumb and Inspector Eldridge.  Sgt Lumb wrote another monthly report on 16th June 1991.  Ms Rostant saw it, but was not prepared to discuss it, because she did not agree with the decision to extend her probation.  She believed that she should be confirmed in her appointment.  Inspector Eldridge informed her that she was making it difficult for him to assist her by being almost obstructive, to which Ms Rostant replied that she did not mean to be obstructive or disrespectful, but she did not agree with the decision of Assistant Commissioner Winship.

	(22)  On 1st July 1991 Ms Rostant was interviewed by Superintendent Rees.  He went through Sgt Lumb's report and referred to Assistant Commissioner Winship's letter of 28th May 1991 and the points listed in it.  He informed her that her self-generated work in all fields of police work continued to be inadequate.  In response to a comment about the need to improve her assertiveness Ms Rostant stated that she did respond to constructive criticism, but the criticism now levelled at her was the same as that throughout her service.  She disagreed with it.  Superintendent Rees noted at the end of the interview that Ms Rostant honestly believed that she had achieved a standard suitable for her confirmation in appointment and totally disagreed with the extension of her probation and the decisions made by her supervisors.

	(23)  On 27th July 1991 a further report was completed and was discussed with Ms Rostant on 1st August.  That report indicated an improvement in performance.  The final report of her extended probationary period was dated 27th August 1991.  That again contained the comment that Ms Rostant failed to generate sufficient work.  Sergeant Lumb and Inspector Eldridge recommended that her services be dispensed with.  That recommendation was supported by Superintendent Rees.

	(24)  On 10th September 1991 Ms Rostant was interviewed by Deputy Assistant Commissioner Metcalf, who had been in charge of No. 4 Area throughout the time Ms Rostant had served at Brixton and Clapham police stations.  He was acquainted with her service history.  Ms Rostant declined to discuss the reports on her.  He made a report recommending that her appointment as probationer constable should be terminated.

	(25)  On 24th September 1991 Ms Rostant had a final interview with Assistant Commissioner Winship.  She was accompanied by her brother.  She read a lengthy statement to him in which she set out her approach to policing and her criticism of the emphasis placed throughout her probation on self-generated work.  She referred to the earlier meeting with him on 20th May 1991.  She said that his instruction to her to generate stops and arrests was contrary to the spirit of PLUS, which set out the principles and guidance on professional behaviour of officers of the Metropolitan Police.  She denied that her performance had been an issue and said it was rather her behaviour and attitude.  Assistant Commissioner Winship asked her to explain why she believed there was a racial dimension in the criticisms of her superiors.  She responded.   After discussion of other aspects of her probation, the hearing was adjourned to enable Assistant Commissioner Winship to arrive at a decision.  Following deliberation a decision was taken to dispense with Ms Rostant's services forthwith in accordance with Regulation 17 of the Police Regulations 1987.   She was given notice of that decision orally and in writing on 24th September.

Complaint to the Industrial Tribunal
	In those circumstances Ms Rostant presented an Originating Application to the Industrial Tribunal on 23rd December 1991 complaining of race discrimination, unfair dismissal and victimisation.  The essence of her case was that, during the course of her employment, she received unjustified adverse reports on her work performance; that she was repeatedly pressured to resign and was instructed by senior officers to make arrests, stops and searches than other officers; and that she was criticised for not being assertive enough and was not given adequate supervision.  She was dismissed from the Force on 24th September 1991 on the ground that she had failed to produce a sufficient number of self-generated arrests and stop and searches.  In those circumstances she believed that she had been the victim of unlawful racial discrimination and contended that, had she been white she would have been confirmed as a Police Constable.  The Commissioner served a notice of appearance dated 12th March 1992 stating that Ms Rostant was dismissed in that her services were dispensed with, in accordance with Regulation 17(1) of the Police Regulations 1987, on the ground that she was not likely to become an efficient and/or well conducted constable.  The Notice of appearance contained details alleging that her performance during her period of service was unsatisfactory in that she did not carry out policing duties efficiently: she was lacking in initiative, firmness and self-confidence when dealing with members of the public; she was unable to complete necessary written work reasonably quickly and efficiently; and proved to be unable to accept and act upon advice to improve her performance of her duties as a police officer.  It was denied that her colour, race, nationality or ethnic or national origins were to any extent the reason for the Commissioner's actions.

The Decision of the Industrial Tribunal
A	Discrimination
	The Industrial Tribunal rejected the claim of direct discrimination contrary to S.1(1)(a) of the 1976 Act and held that Ms Rostant was not treated differently and less favourably than a probationer constable of a different race and ethnic origin in the same circumstances.  The claim under S.1(1)(b) alleged in the Particulars was abandoned at the start of the hearing.  It had been notified in the Particulars that the requirement or condition applied to her was that she should carry out a number of stops and arrests before she could be confirmed as a Constable and that was biased and unrelated to her merits.  

B	Victimisation
	The Industrial Tribunal rejected the complaint of victimisation based on S.2(1)(c) and S.2(1)(d) for the following reasons:-
	(1)  The allegation of race discrimination was made in a letter of 1st July 1992 to Assistant Commissioner Wyn Jones.

	(2)  Her immediate superiors (Sgt. Fullalove, Sgt. Lumb and Inspector Eldridge) were not aware of that letter or of the allegation.

	(3)  The letter of 1st July 1990 was known to Assistant Commissioner Mitchell, but had no adverse effect on the way that he treated Ms Rostant.

	(4)  The letter was known to Assistant Commissioner Winship, but did not influence the way that he dealt with Ms Rostant.

Submissions of Ms Rostant on the Appeal
	Mr Andre Rostant, on behalf of Ms Rostant, made the following submissions in support of his overall contention that the Industrial Tribunal erred in law, that they made findings of fact unsupported by evidence and that the decision was obviously wrong and perverse.
	(1)  The Industrial Tribunal missed the main point of Ms Rostant's case, which was that the behavioural and personality traits of a racial group could give rise to discrimination.  The Industrial Tribunal were in error in relying, as the only possible source of discrimination and victimisation, on the skin colour of Ms Rostant and on knowledge of her racial origins.  They should have considered the effects of her ethnicity on her behaviour, attitude, outlook and approach and her understanding of certain groups

	(2)  It was also part of her case that the "stop and search" practice which Ms Rostant was ordered to comply with on the street was flatly contradictory of Metropolitan Police policy.  This was supported by oral and written evidence.  The Tribunal were wrong to find that there was no suggestion by Ms Rostant that her supervisors were departing from Metropolitan Police policy as such.  As a result of this erroneous finding, the Industrial Tribunal did not examine whether Ms Rostant's stand against the "self-generated" work practice was justified by policy.  The Tribunal were wrong to accept the criterion of 'stop and search' as a satisfactory explanation of the treatment of Ms Rostant.

	(3)  The Industrial Tribunal were wrong to find (paragraph 51) that the first mention of race discrimination by Ms Rostant was in the letter of 1st July 1990 and that there was no further mention of it in the evidence, other than in the recording of the interviews with Assistant Commissioner Winship.  The evidence showed that there was a constant stream of written and oral complaints of discrimination and victimisation.  eg, letter of 26th June 1990.

	(4)  The Industrial Tribunal erred in making a comparison between Ms Rostant who was on extended probation and two white officers in the first period of probation.  The material circumstances of the comparators were different.  The comparison was partial and was made on the criteria which Ms Rostant refused to comply with and were identified by her as racial discriminatory.  She made it clear at the time that she was fundamentally opposed to "stop and search" practice in Brixton and Clapham.  She was ordered in the interview with Assistant Commissioner Winship to generate arrests and she had no discretion in the matter.

	(5)  The Industrial Tribunal could not reasonably construe as "generous" (paragraph 51) the "hostile extension" of probation, which she refused.

	(6)  The Industrial Tribunal failed to address Ms Rostant's complaint under S.2(1)(c) (as well as S.2(1)(d)) of the 1976 Act.  Section 2(1)(c) applied to Ms Rostant's act of refusing to comply with the stop and search practices.

Conclusions
	We have considered Ms Rostant's criticisms of the Industrial Tribunal's decision in detail, but we have reached the conclusion that there is no error of law in the decision.  Ms Rostant is disappointed by the result and feels aggrieved about her treatment by the police and her lack of success in the Industrial Tribunal.  The Appeal Tribunal's jurisdiction is, however, limited to appeals on questions of law in decisions of, or arising in proceedings before, an Industrial Tribunal.  The Appeal Tribunal is not entitled to disturb a decision simply because the losing party thinks he or she should have been the winning party or because this Tribunal might have decided the facts or the case differently.  The critical question is whether there is a legal error in the Industrial Tribunal's decision.  We are unable to find one.

	In our view, the legal position is as follows:-
	(1)  The Industrial Tribunal correctly interpreted and applied S.1(3) of the 1976 Act to the case.  The Industrial Tribunal accepted and proceeded on the base that Ms Rostant belonged to a racial group, identifying her as of Irish Afro Caribbean origin for the purposes of S.1(3) of the 1976 Act.

	(2)  Her criticism of the Tribunal is that, because of her skin colour, they did not in fact treat her as a member of that racial group and accordingly failed to understand that the behavioural traits of a racial group could give rise to discrimination on the ground of race.  Her argument is that, because of her ethnic background and the behavioural characteristics of her racial group, she was unable to comply with the requirements of self-generated work against which she protested.

	The Industrial Tribunal made no legal error on this point.  It does not appear from Ms Rostant's application or from the decision or other documents that this was the way in which her case was presented to the Industrial Tribunal.  The case argued was one of direct discrimination only.  The claim of indirect discrimination was abandoned at the beginning of the Industrial Tribunal hearing by the counsel who then appeared for her.  The case now put is one of indirect discrimination: namely, that she was faced with a requirement or condition (ie to engage in self-generated work) which was discriminatory, because the proportion of the racial group who could not comply with it was substantially smaller than that of the group who could comply with it.  An assertion of that nature was not supported by any evidence in the Industrial Tribunal.  We understand Ms Rostant's argument, but the complaint now is essentially that she was treated less favourably on the ground of her conduct ie, her refusal to engage in self-generated work which she objected to, not on the ground of race.

	(3)  In order to decide a case of direct discrimination argued before it, the Industrial Tribunal had to make comparison of the treatment of Ms Rostant with the treatment of others of a different racial group: S.3(4).  The Industrial Tribunal made a comparison of Ms Rostant's performance and treatment with respect to self-generated work with that of two white probationers (paragraph 31).  That was an appropriate comparison, because the Industrial Tribunal were entitled to take the view that the circumstances of her case were not materially different from those of the two white probationers.  We do not accept Mr Rostant's argument that the Industrial Tribunal erred in that because there was a material difference.  Ms Rostant claimed that the material difference was her refusal to comply with the requirements of self-generated work, whereas the two white probationers did not refuse.  It was argued that the requirement which she refused to comply with was discriminatory so far as she was concerned, but not so far as the two white probationers were concerned.  In our view, this is not an argument about the validity of the comparison for the purpose of S.3(4).  It is another way of restating the complaint of indirect discrimination which was not supported by evidence and which was abandoned as head of claim at the hearing.

	(4)  A further argument on the appeal was that the Industrial Tribunal's decision is erroneous, because it does not deal with the point that the requirement of self-generated work is contrary to police policy.  This argument cannot be pursued on the appeal for a number of reasons.  The Industrial Tribunal stated (paragraph 45) that there was no suggestion by Ms Rostant that her supervisors were departing from Metropolitan Police policy.  It is not open to her to raise a point of this kind on appeal which was not made in the Industrial Tribunal.  In any event, there was no evidence on which the Tribunal could have found that the Commissioner had departed from policy in taking into account a level of self-generated work when judging the performance of probationers.  Even if there had been a departure from policy, that would not have been relevant to the question whether there was less favourable treatment of Ms Rostant on the ground of race.  The same demands were made of all probationers.   Ms Rostant was not treated any differently than the others.

	(5)  As for the argument that the Tribunal were wrong to find that the letter of 1st July 1991 from Ms Rostant to Assistant Commissioner Wyn Jones was the first recorded mention of possible race discrimination and that there was no further race discrimination until the record of her interviews with him, that is not a point of law but an argument on the evidence and the facts.  It is not a point which can be taken on the appeal.  In any event, there was no factual inaccuracy in the finding of the Industrial Tribunal.  According to the documents, the letter of 1st July 1990 is the first recorded mention of an allegation of race discrimination.  The letter to Chief Superintendent Aitchison in May 1990 does not contain an allegation of that kind.  There was no further complaint of race discrimination until the record of her interviews with Assistant Commissioner Winship.  Ms Rostant's case before the Industrial Tribunal relied on only one protected act namely, the letter of 1st July 1990 to Assistant Commissioner Wyn Jones.  No other allegation of discrimination amounting to a protected act was pleaded or relied upon in submissions to the Industrial Tribunal.  It was no part of the case before the Tribunal that her act of refusing to comply with stop and search practices was a protected act on which she could make her claim of victimisation.  The Tribunal found as a fact that the reason why Ms Rostant's service was dispensed with was not because she had committed a protected act, but because of her unsatisfactory performance as a probationer, in particular, her failure to produce an acceptable level of self-generated work.  That was not a protected act done "under or by reference to" the Race Relations Act 1976, S.2.

	(6)  As for the complaint that the Tribunal were perverse in concluding that the Commissioner had been "generous" in extending Ms Rostant's probationary period, when she had made it clear that she was fundamentally opposed to the stop and search practices, we are unable to detect any error of law in that conclusion.  If there is an error, it is one of fact; but, on the material before us, we are unable to find what criticism there can be of that factual statement.  There was ample evidence before the Tribunal to justify the view that the extension of probation was generous.  Even if there was substance in the complaint, we are unable to understand its relevance to the conclusion of the Tribunal that she was not treated less favourably than other probationers on racial grounds.

	For all those reasons this appeal is dismissed.