Appeal No.	 EAT/774/97, 	EAT/1116/97 
	& EAT/1117/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 April 1998
Judgment delivered on 28 July 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR P DAWSON OBE
MR R N STRAKER

CHIEF CONSTABLE OF THE WEST YORKSHIRE POLICE & OTHERS	APPELLANTS

MR R KHAN	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR JONES
(of Counsel)
Instructed by:
Mr A K Hussain (Solicitor)
West Yorkshire Police
Police Headquarters
Laburnum Road
Wakefield
WF1 3QP	
For the Respondent	MS M TETHER
(of Counsel)
Messrs Russell Jones & Walker
Solicitors
Quebec House
9 Quebec Street
Leeds
LS1 2HA	

	JUDGE PETER CLARK:	These three appeals come before us in the following circumstances.

	Mr R B Khan [“the applicant”] was at all relevant times a serving police officer in the West Yorkshire force. He commenced his service on 14th April 1975 and was promoted sergeant in about 1986. He is of Indian origin.

	On 1st September 1996 he presented a complaint of direct unlawful racial discrimination to the Industrial Tribunal (case no. 1800125/96) [“the first complaint”]. He contended that the Chief Constable [“the respondent”] and four named senior officers had hindered his prospects of promotion to inspector on racial grounds.

	In October 1996 the applicant completed an application form for promotion in the Norfolk Police. In accordance with the normal procedure that force applied to the West Yorkshire police for a reference and copies of assessments made of the applicant.

	The response was a short statement which read as follows:

“Sergeant Khan has an outstanding Industrial Tribunal application against the Chief Constable for failing to support his application for promotion.
In the light of that the Chief Constable is unable to comment any further for fear of prejudicing his own case before the Tribunal.”

	The request by Norfolk for the applicant’s last two staff appraisals and a copy of any computer printouts from their personnel system, was refused.

	That stance was taken on advice from the force’s solicitor, Mr Hussain, who gave evidence before the Industrial Tribunal.

	Having learned of this course of events the applicant made application to the tribunal by letter dated 9th January 1997 to amend his Form IT1 to add a complaint of victimisation based on the respondent’s refusal to provide a reference and other material to Norfolk. Leave was granted.

	The matter came before an Industrial Tribunal sitting at Leeds under the Chairmanship of Mr D J Latham for hearing on 10th to 13th February and 21st March 1997. Following a day in Chambers on 1st April 1997 the tribunal promulgated their decision with extended reasons on 22nd April. The claim for direct discrimination was dismissed; the victimisation complaint succeeded. The question of remedies was adjourned. Against the victimisation decision in what we shall call “the reference case”, the respondent brings the first appeal (EAT/774/97).

	The remedies hearing in the reference case took place on 15th July 1997. By a further decision [“the remedies decision”] with extended reasons dated 30th July 1997 the tribunal awarded the applicant £1,500 compensation for injury to feelings. Against the remedies decision the respondent brings his appeal EAT/1117/97 [“the second appeal”].

	Following the four days of hearing in the reference case the applicant returned to duty. He was then informed by a senior officer at Keighley Police Station, at which he was then serving, that his attendance at the Industrial Tribunal on those four days would not be treated as duty time and that he should make a retrospective application for annual leave to cover those days. The matter was taken up by his Police Federation representative, Mr Benn, with ACC (Designate) Charlesworth. No agreement was reached, and the force maintained its position.

	As a result the applicant presented a second complaint to the Industrial Tribunal on 19th May 1997 alleging direct racial discrimination and victimisation in connection with the respondent’s decision not to treat his attendance at the Industrial Tribunal as duty time (case no.: 1802382/97). We shall refer to this as “the off duty case”.

	The off duty case came on for hearing before an Industrial Tribunal sitting at Leeds, again chaired by Mr Latham sitting with different members from those who sat on the reference case, on 1st August 1997. For the reasons sent to the parties with a decision dated 18th August 1997 that tribunal dismissed the complaint of direct discrimination, but upheld the complaint of victimisation. The question of remedies was again adjourned and a subsequent award of £250 compensation for injury to feelings together with four days pay was made.

	Against the finding of victimisation in the off duty case the respondent brings his appeal EAT/1116/97 [“the third appeal”].

Victimisation
S. 2 of the Race Relations Act 1976 provides, so far as is material:

“2	Discrimination by way of victimisation
	(1)  A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has-
(a)	brought proceedings against the discriminator or any other person under this Act; 
	...
	(2)  Subsection (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.”

By s. 4(2):

	“(2)  It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee-
...
(b)	in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or
(c)	by ... subjecting him to any other detriment.”

	Similar provisions are to be found in ss. 4 and 6 of the Sex Discrimination Act 1975. 

	Guidance as to the correct application of the statutory provisions is to be found in the Court of Appeal cases of:

Cornelius v University College of Swansea [1987] IRLR 141
Aziz v Trinity Street Taxis Ltd [1988] IRLR 204
Nagarajan v London Regional Transport [1998] IRLR 73

from those cases the following principles emerge:

(1)	Generally, an appellate court cannot interfere with the findings of fact made by the tribunal of fact, nor with inferences drawn from such findings, provided that there was evidence for such findings and that the facts found are capable of justifying such inferences. Nagarajan paragraph 40.

(2)	For there to be discrimination by way of victimisation two tests must be satisfied by the complainant:

(i)	that in the relevant circumstances the discriminator treats the person victimised less favourably than he treats or would treat other persons who have not done the protected act, here, the bringing of proceedings against the respondent under the 1976 Act [“the comparator point”], and
(ii)	that the discriminator treats the complainant less favourably by reason that the complainant has done the protected act. This imports conscious motive on the part of the respondent connected with the race relations legislation. [“the causation point”]. Aziz paragraphs 45, 58-9; Nagarajan paragraph 13.

(3)	In applying that twofold test the complaint will not be made out if the treatment afforded to the complainant had nothing to do with his conduct in doing the protected act even though the existence of disciplinary proceedings may have influenced the respondent’s decisions. If those decisions would have been the same whoever had brought proceedings or whatever their nature, the claim will not succeed. Cornelius, paragraph 33.

Compensation
It is open to an appellate court to interfere with an award of compensation made by an Industrial Tribunal if they have acted on a wrong principle of law or have misapprehended the facts or have made a wholly erroneous estimate of the damage suffered. Skyrail Oceanic Ltd v Coleman [1981] ICR 864, 872B; per Lawton LJ.

The Appeals
(1)	The reference case:
	The tribunal rejected the respondent’s case that the applicant had brought the direct discrimination complaint concerning promotion in bad faith for the purposes of s. 2(2). They found that he had done a protected act, that is bringing that direct discrimination claim. On the comparator point they found that in circumstances where a request was made to another force in respect of candidate a proper reference and copies of previous appraisals on him would be provided. The only difference between the ordinary case and this case was that the applicant had done the protected act. They distinguished Cornelius, relied upon by the respondent, on its facts, and concluded that it was only because the applicant had done the protected act that the respondent treated him less favourably than an applicant to another force who had not done the protected act.

	In challenging the tribunal’s finding of victimisation in the reference case Mr Jones submits first that the tribunal used the wrong comparator. It was necessary to include the further element that the comparator had started proceedings against the respondent on grounds other than racial discrimination. We reject that submission. The tribunal was not required to include within the relevant circumstances on the facts of this case that the comparator was engaged in litigation with the respondent.

	Secondly he raises the causation issue. He contends that the tribunal did not reject Mr Hussain’s evidence that if a civilian employee of the Police Authority had been dismissed as a consequence of an act of dishonesty he would have similarly advised the respondent not to provide a reference whilst facing a pending unfair dismissal claim. Accordingly the tribunal ought to have found that the refusal to give a reference was not by reason of the complaint of race discrimination.

	We reject that submission. The fallacy in the proposed comparison lies in the difference between unfair dismissal protection and protection against racial discrimination. There is no statutory protection for unfair dismissal complainants against victimisation. The problem does not arise, since they are no longer employed. It is precisely because the person complaining of racial discrimination may still be employed by the respondent to the complaint that the victimisation provision is included.

	If follows, in our judgment, that the tribunal reached a permissible conclusion that the applicant had suffered victimisation in the reference case.

(2)	The off duty case
	The position here, we find, is rather different. The relevant comparison made by the tribunal was not between the applicant and a hypothetical comparator, as in the reference case, but with four actual comparators, namely the four senior officers who attended the Industrial Tribunal as named respondents in the reference case. They had been treated as on duty during that attendance. However, the tribunal also declined to treat as proper comparators those officers who were not named as respondents, but who nevertheless attended to give evidence in the reference case on behalf of the respondent in support of his case.

	In our judgment no such distinction can properly be made. The respondent did not seek to rely upon the statutory defence; he accepted responsibility for the acts of the four individual respondents. Accordingly they too were present to give evidence in support of his case. In our view the tribunal fell into error in drawing a distinction, for comparative purposes, between those police officers who attended to give evidence on behalf of the respondent but were not themselves named as respondents and those attended for a similar purpose and were named as respondents.

	Having found that the tribunal fell into error we have decided that we are in a position to substitute our own conclusion, based on the tribunal’s findings of fact. Here, the analogy with the case of Cornelius, relied on by Mr Jones, holds good. The tribunal found, at paragraph 5(j) of their reasons, that there was evidence of two civil claims for injury arising to two officers or employees and the evidence was to the effect that they were shown as being on rostered day leave on the days of the hearings and therefore were not treated as being “on duty”. That is the proper comparison to be made in the off duty case. It follows, in our judgment, that the applicant has failed to show that he received less favourable treatment by reason of his having done the protected act. Accordingly this second complaint fails.

(3)	The remedies decision in the reference case
	Mr Jones submits that at the remedies hearing the applicant gave no evidence as to his injury to feelings caused by the respondent’s act of victimisation. Accordingly there was no evidence upon which any award for injury to feelings could be made.

	We reject that submission, preferring Ms Tether’s submission that evidence as to injury to feelings directed to the relevant act of victimisation was given at the liability hearing in the reference case and reflected in paragraph 8 of the remedies decision reasons.

	Further, it is submitted that the award of £1,500 was excessive. Having considered the cases cited to us we are unable to say that the award was a “wholly erroneous estimate of the damage suffered”. Accordingly we reject the remedies appeal.

Conclusion
It follows that both appeals in the reference case are dismissed and that the finding of victimisation and the award of £1,500 compensation for injury to feelings are both upheld. The appeal in the off duty case is allowed and the finding of victimisation in that case and the consequent award of £250 compensation plus four days pay are both set aside.