Appeal No.	 EAT/0562/02/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 February 2003

Before
THE HONOURABLE MR JUSTICE RIMER
MR M CLANCY
MRS J M MATTHIAS

+

THE CHIEF CONSTABLE OF
CAMBRIDGESHIRE CONSTABULARY	APPELLANT

MRS S A McLACHLAN	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR A WATERS
(of Counsel)
Instructed by:
Cambridgeshire Constabulary
Legal Services
Hinchingbrooke Park
Huntingdon
Cambridgeshire PE29 6NP	
For the Respondent	MR M D BLOOM
(Solicitor)
Messrs Hegarty & Co
Solicitors
48 Broadway
Peterborough
PE1 1YW	

THE HONOURABLE MR JUSTICE RIMER

1	This is an appeal by the Chief Constable of Cambridgeshire Constabulary against the decision of an Employment Tribunal sitting at Leicester over about nine days in October and November 2001 and chaired by Mr C J Goodchild.  The extended reasons were promulgated on 17 April 2002.  The decision of the Tribunal was that the Chief Constable had directly discriminated against Mrs McLachlan by, in effect, dismissing her by reason of her sex.  In fact, she was invited to resign and did so, although if she had not, she would have been dismissed.  The hearing took place after the coming into force of the new provisions in section 63A of the Sex Discrimination Act 1975 as to the burden of proof.  

2	Mrs McLachlan had joined the Cambridgeshire Police Force at the beginning of 1990, having previously served as a bursar on a ferry.  The Tribunal found that by 1995 she had acquired a reputation as being a good police officer as well as something of a complainer.  She married and became a mother.  She took maternity leave and returned to the force in 1996 on a part-time basis.  Part-timers were then a rarity in the force and, at the date of the hearing, they still numbered only 20 out of a force of 1,250 officers.  

3	The Tribunal recognised that a police force has to be a disciplined service, one consequence of which is, as the Tribunal put it, that:
 “the normal flexibility and perhaps humanity that one would have expected from ordinary employers is not available to a police service that requires orders to be obeyed.”

This posed problems with part-timers, particularly those with babies to tend.  The Tribunal was told, and apparently found, that the disciplinary requirements in the force were such that its officers are expected to remain in their post if required to do so, even if this means staying on at the end of a shift.  Mrs McLachlan’s own views were that her primary duty was to her children, and the Tribunal had no doubt that she had made it clear to her police colleagues where her priorities lay.  The Tribunal said that this was a fruitful ground for conflict.  

4	One afternoon in Peterborough, on a date the Tribunal does not identify, Mrs McLachlan disobeyed an order requiring her to interview a complainant in a case involving an allegation of child abduction.  The details do not matter, but it appears clear that she disobeyed the order so that she could conclude her shift promptly at six o’clock and go home to her children.  Compliance with the instruction would have prevented her from doing so.  As a result of her disobedience, a complaint was made and a disciplinary hearing was held before the Chief Constable.  Mrs McLachlan was represented by Counsel, as was the police force.  

5	The Tribunal summarised the outcome of the hearing as follows:
“….. the Chief Constable had the evidence in front of him if he wished to make a finding that there was a deliberate disobedience of an order.  What he did, in fact, was to reject the explanation that that [Mrs McLachlan] gave.  Practically everything that [Mrs McLachlan] said he disbelieved.  Again he was entitled so to do.  In the end he believed what [Mrs McLachlan] was doing was deliberately delaying so that she could get off at 6 o’clock.”

Mrs McLachlan’s Counsel then made a plea in mitigation, but the result was that the Chief Constable asked Mrs McLachlan to resign.  A resignation would have preserved her pension rights which she would have lost on a dismissal.  She did resign, but had she not done so, the Tribunal inferred that she would have been dismissed.  Her appeal was dismissed.  

6	On those facts, the Tribunal considered whether Mrs McLachlan had been subjected to direct sex discrimination within the meaning of section 1(1)(a) of the Sex Discrimination Act 1975.  If she had been, then the discrimination would have been unlawful under part II of the Act (Discrimination in the employment field) since a police officer is treated as an employee for relevant purposes by section 17 of the Act.  

7	The Tribunal first asked themselves whether Mrs McLachlan had been  treated less favourably than a real or hypothetical comparator.  That was a correct starting point and the comparative exercise on which the Tribunal then embarked required them to make sure that they were comparing like with like.  Section 5(3) of the 1975 Act provides that:
“A comparison of the cases of persons of different sex or marital status under section 1(1) or (2) or 3(1), or a comparison of the cases of persons required for the purposes of section 2A, must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”

8	The Tribunal referred first to a list of officers that the Chief Constable had dealt with by disciplinary procedures and pointed out that of them “only four have in effect ended up leaving the service”  One had committed what the Tribunal described as an appalling list of sexual offences for which he received 18 years imprisonment.  Another was dismissed for having under age sex.  A third engaged in the transmission of sexually explicit e-mails, and when discovered wrongly blamed others.  The fourth was Mrs McLachlan.  

9	Those first three cases appear to us to be of no comparative value whatsoever, and nor do we understand the Tribunal to have regarded them as having any such value.  We would be amazed if anything other than instant dismissal had been visited on the first two of the three officers.  The misconduct in the third case may not have been of quite the same order of seriousness, although we do not know the details, but, again, we are not surprised that it led to dismissal.  These cases do not appear to us to provide any sort of comparison with Mrs McLachlan’s case, who was guilty of a deliberate breach of an order and was thereby flouting the discipline expected of her as a member of the force, but did not commit any criminal offence.  To compare her case with the cases of these three officers would not have been to compare like with like.  

10	On the other hand, the fact that her offence can be regarded as materially less serious than the offences committed by these three officers does not by itself show that dismissal was not appropriate for it; nor does it begin to provide a basis for an inference that she was being dismissed on the ground of her sex.  The relevant question was whether there was any basis on which the Tribunal could conclude that, in dealing with Mrs McLachlan in the way he did, the Chief Constable was dealing with her less favourably than he would deal with a male officer who could be regarded as representing a true comparator.  

11	By way of identifying potential comparators, the Tribunal then referred to 
“what we would regard as a whole series of similar offences albeit not described in the same way, where the individual, both male and female, but largely male, have been dealt with by way of a reprimand or varying days fines.”

The Tribunal volunteer no details of the nature of those offences in their reasons and we do not know their nature, although Mr Waters, who appeared before us for the Chief Constable, and who also appeared before the Tribunal, told us that none of the cases was similar to Mrs McLachlan’s.  Mr Bloom, who appeared before us for Mrs McLachlan, but did not appear before the Employment Tribunal, showed us a list of 35 offences committed by male and female officers over the period from 22 March 1995 to 16 February 2001, one of which was also before the Tribunal.  The list is uninformative as to the details of the particular offences referred to.  Five of the offences are described as “Disobedience to orders”, and they include Mrs McLachlan’s case.  Of the other four offenders, three were men and one was a woman.  The woman was reprimanded, two of the men were fined different amounts and the other man was required to resign.  We derive no help from a sight of this list since it is obvious that the seriousness of the relevant disobedience will vary from case to case and that different cases will or may merit different disciplinary measures.  

12	The Tribunal then said this:
“25  The comparator in our view - hypothetical comparator - looking at that list is not the person who is going to end up in prison.  Objectively in our view the offence that [Mrs McLachlan] was facing was a middle ranking offence.  We looked at the middle ranking offences that have been dealt with by the Chief Constable and the Chief Constable’s way of dealing with it was as prophesied by her Counsel and by the Senior Inspector as a few day’s fine.  We think she has been dealt with less favourably on a comparison with similar offences.  Is the comparator of the opposite sex or of a different marital status to Mrs McLachlan or from a different racial group.  We look at the comparators and we can see very largely they are male.  It seemed to us that at this point the burden shifted.  Can the respondents show that the reason for the less favourable treatment was not because of [Mrs McLachlan’s] sex?
26    Has the respondent given an explanation for the less favourable treatment?  On this particular occasion the Chief Constable explains to us the reason that he has taken the view that he has in that he has a disciplined service to run and that he regarded the disobedience of orders, irrespective of mitigation, as most serious.  He has given the explanation.  We find it unsatisfactory.  We think any reasonable employer running a disciplined service could have seen the mitigation here she, as a mother, had important other duties.  He should have asked himself and his own service ‘what is going wrong’.  Here was an excellent officer (described as excellent by a Senior Officer) who is about to be ruined and put in the same league as a man who has committed the most appalling acts with children or one that has blamed others for explicit e-mails.  He should have asked himself whether there was in this new world of part time workers a more flexible way in dealing with this problem. Why didn’t he? Having heard the Chief Constable and observed him we believe that he concluded that the clock-watching problem of this part-timer was given her family commitments insoluble.  We conclude there was discrimination.  Even under the old law we have no doubt that this was a case by inference when this woman has been treated differently because she was a woman.  Despite the protestation of the Chief Constable and his Senior Officers the fact remains is that her status as a young mother with children to look after was a factor and a deciding factor in the way she was adversely treated.  That is our conclusion after 9 days of hearing.”

We find that reasoning and conclusion difficult to follow.  The Tribunal provides no information as to the details of the “middle ranking offences” they had regard to which had been dealt with by fines.  Nothing in the Tribunal’s reasons enables us to be satisfied that any of those offences could fairly be regarded as closely similar in nature to Mrs McLachlan’s case.  The Tribunal’s reasons certainly do not demonstrate that and if any of the other cases to which they had regard were in fact truly comparable to Mrs McLachlan’s case, we would have expected the Tribunal to have identified those cases specifically.  Mr Waters assures us that in fact no case was truly comparable, and although Mr Bloom did not have the advantage of being before the Tribunal, he has not sought to identify any of the cases as being truly comparable.  Mrs McLachlan represented herself before the Employment Tribunal, and no doubt if any of the cases on the list did indeed amount to a true comparable, she would have drawn it to Mr Bloom’s attention.  

13	We infer, therefore, that there was no helpful actual comparator.  This being so, we consider that the Tribunal had a duty to construct a hypothetical comparator against which they could test Mrs McLachlan’s case.  Their failure to do so involved an error of law because it goes to the manner in which the Tribunal is to approach the case (see Balamoody -v- The United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2001] EWCA Civ 2097 [2002] IRLR 288 at paragraphs 51 to 60 in the judgment of Lord Justice Ward).  The obvious hypothetical comparator for the purposes of the exercise before the Tribunal in this particular case was a male part-timer with small children to care for and who would, or might, therefore, be as much of a clock-watcher as Mrs McLachlan, and had disobeyed an order so that he could go home on time in order to look after his child.  

14	The Tribunal gave no thought to such a comparator.  But if they had done so, would they have had any reason to conclude that the Chief Constable would not have meted out to him exactly the same treatment as he did to Mrs McLachlan?  On the face of it, we can see none.  The Tribunal appears to have been critical of the Chief Constable for not running his force in the way they considered he ought reasonably to have run it, and for imposing what they clearly regarded as an over-harsh disciplinary measure on a part-timer who was a mother.  We respectfully question on what basis the Tribunal considered it was appropriate for them to purport to tell the Chief Constable how to run his police force and, with like respect, we regard as irrelevant the Tribunal’s own view that the punishment visited on Mrs McLachlan was unduly harsh.  Even assuming it was, that is not the point.  The question for the Tribunal was whether there was a basis for an inference that the Chief Constable’s unreasonable treatment was reserved for part-timers who were women.  What evidence justified them in their conclusion that he would not have been just as unreasonable to clock watching part-timers who were men?  The Tribunal have not hesitated to jump to a conclusion that the Chief Constable’s unreasonableness was explicable only on the basis that Mrs McLachlan was a woman.  The findings in their reasons, which on the crucial matters of the particular comparisons they relied upon are almost wholly unexplained, appear to us to provide no basis at all for any such inference.  

15	We conclude that the Tribunal misdirected itself.  It appears to have allowed its personal views as to how a modern police force should deal with part-timers who were women and mothers to distract it from the critical question of whether the Chief Constable treated Mrs McLachlan less favourably than he would have treated a male part-timer committing a like offence.  The Tribunal did not ask themselves the right question, and, so, inevitably, they came up with an answer which may, in the particular case, be the wrong answer.  

16	In our view, it follows that the decision of the Tribunal was flawed.  Mr Waters has urged upon us that in these circumstances we should simply allow the appeal.  He says there is no point in remitting the matter for a re-hearing, since he says the answer to the right question is a foregone conclusion.  We do not consider that would be the right course to take.  This appeal tribunal is not a fact finding Tribunal and it appears to us that the matter should be remitted for a re-hearing.  

17	As to that, Mr Bloom suggests that we should simply remit the matter for a further hearing by the same Tribunal, at which they would have an opportunity to reconsider the identification of a true comparator, probably necessarily involving the construction of a hypothetical comparator, for the purpose of deciding the issue.  By contrast, Mr Water submits that we should remit the matter to a differently constituted Employment Tribunal for a re-hearing.  He submitted that the need for justice both to be done and to be seen to be done would be better met if the matter is dealt with by a different Tribunal.  

18	We have referred to the fact that the hearing before the Tribunal lasted several days, some nine or ten in all.  This was because Mrs McLachlan had also raised a whole raft of other allegations against the Chief Constable which had to be investigated, although to the extent that she was asserting that she had suffered long term abuse by the Chief Constable by reason of her sex the Tribunal rejected it.  There is no cross-appeal about those matters, and it is agreed by Mr Bloom that the only matter which, if this appeal were to be allowed, should be remitted is the relatively narrow issue as to whether, in requiring Mrs McLachlan to resign in the circumstances in which he did, the Chief Constable was, on the ground of her sex, treating her less favourably than he would treat a man.  There would be no need for a ten day hearing for that issue to be heard afresh, so that the re-hearing, even if before a fresh Tribunal, will be relatively short.  

19	We have come to the conclusion that we should accede to Mr Waters’ submission that if the matter is to be remitted, it should go back to a differently constituted Tribunal.  We are, of course, not thereby saying or suggesting that we do not consider that the same Tribunal would do other than re-hear the issue fairly and impartially.  But we consider that better justice is likely to be seen to be done if it is in fact dealt with by a different Tribunal.  

20	We shall, therefore, allow the appeal, set aside the Employment Tribunal’s decision, and remit the single issue we have identified to a differently constituted Tribunal for rehearing.