Appeal No.	EAT/0652/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 September 2002
Judgment delivered on 14 January 2003

Before
MR RECORDER UNDERHILL QC
MR G LEWIS
MR S M SPRINGER MBE

(1) SECRETARY OF STATE FOR THE HOME OFFICE
(2) SUPERINTENDENT ADDISON	APPELLANTS

MISS L M ORD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellants	MR ADAM TOLLEY
(of Counsel)
The Treasury Solicitor
Queen Anne’s Chambers
28 Broadway
London
SW1H 9JS	
For the Respondent	MS MELANIE TETHER
Messrs Baxter McKay LLP Solicitors
Third 104 Green Portland Street
London
W1W 6PE	

MR RECORDER UNDERHILL QC

1.	The Respondent to this appeal, to whom we will refer as PC Ord, is a Police Officer in the City of London Police Force.  Between 4 January 1999 and 25 March 1999 she was seconded to the Police Training Centre at Ashford in Kent as a “law trainer”.  The Home Secretary, who is the First Appellant, is responsible in law for the operation of the Centre, including the terms and conditions of officers working there.  The Second Appellant, Supt. Addison, was at the material time the “Head of Centre” at Ashford.

2.	By a decision promulgated on 11 April 2001 an Employment Tribunal sitting at London South upheld two claims made by PC Ord arising out of her secondment to Ashford.  The claims can be summarised as follows:

(1)	She was seconded to Ashford in the rank of Police Constable and received pay and other benefits on that basis.  She claimed under the Equal Pay Act 1970 to be entitled to receive pay and benefits on the basis of the rank of a Police Sergeant.

(2)	Her secondment was brought to an abrupt end as a result of misconduct on her part.  She claimed that on the grounds of her sex she was treated more severely than a male officer would have been treated in similar circumstances; and she claimed accordingly to be entitled to a remedy under the Sex Discrimination Act 1975.

3.	The Home Secretary appeals against both decisions.  A third complaint, of victimisation contrary to s. 4 of the 1975 Act, was rejected by the Tribunal and is not the subject of an appeal before us. We consider the two claims in turn.

THE EQUAL PAY ACT CLAIM

4.	It is necessary first to set out the relevant history of the arrangements as regards the rank of seconded trainers at Ashford.  This can be summarised as follows:

(1)	Trainers from a number of different Forces are seconded to work at Ashford.  The basic position is that during the period of secondment, which might be for as long as three years, they remain members of the seconding Force, and their entitlement to pay and conditions depends on their rank held in that Force.

(2)	Prior to 1995 the general practice was that seconded officers should have the rank of Sergeant.  If a secondee did not (as most did not) already hold that rank, he or she was promoted by the seconding Force, either permanently or on an acting or temporary basis.

(3)	In April 1995 the National Director of Police Training notified all Chief Officers of Police that the Police Training Council had (on the basis of a report made the previous year) decided that it was unnecessary that all trainers should hold the rank of Constable and that “the six PTCs [Police Training Centres] in England and Wales are now able to accept Sergeants or Constables in their own ranks without the need for Constables to be given temporary or acting promotion”.  The new policy recognised that Forces might prefer to continue seconding trainers in the rank of Sergeant; but they no longer had to do so.

(4)	In June 1997 a report was produced by Ms McKillop on the use of Constables as trainers at PTCs.  She found that, following the change of policy in 1995, there was a divergence of practice between different Forces, some seconding trainers to PTCs in the rank of Constable and others seconding them as acting or temporary Sergeants.  This did not reflect any difference in the work which they actually had to do, and she regarded the discrepancy as unfair and likely to lead to tension and dissatisfaction.  She reviewed various options for change.

(5)	In the light of the McKillop report, it was decided to pilot at Ashford a new system under which the day-to-day work of training would be carried out exclusively by trainers holding the rank of Constable, with Sergeants performing a supervisory role.  The pilot commenced in October 1997.  It was planned to last for three months.  It was duly carried through and was regarded as a success.  It is plain (though this is a matter to which we will have to return) that, following the formal conclusion of the pilot, the new system was carried on on a permanent basis.

5.	In February 1985 PC Greenwood (a man) was seconded to Ashford by the City of London Force as a trainer.  For the first two years, he held the rank of Constable.  In November 1996 the Force decided that from 1 January 1997 Constables selected for secondment to a PTC would be appointed acting Sergeants for the duration of the secondment.  In accordance with that policy, PC Greenwood was in January 1997 promoted to Acting Sergeant.  That decision was not contrary to the policy of the National Police Directorate as it then stood (though it might be said to be somewhat against its trend), because, as noted above, the policy recognised that individual Forces would be entitled to send Sergeants if they wished.

6.	PC Greenwood’s secondment was due to end in September 1998, although it was in the event extended to the end of the year.  The City of London Force advertised internally for a successor, indicating that the job was for an Acting Sergeant.  PC Ord, who had been an Acting Sergeant since August 1997, applied and was chosen.  It became clear, however, from preliminary contacts between the City of London Force and Ashford, that, by reason of the change of practice following the McKillop report, Ashford required PC Greenwood’s replacement to be seconded in the rank of Constable.  The point was discussed in a telephone conversation between CI Moore, the Training and Career Development Officer for the City of London Police, and Supt Addison, and in an exchange of letters between them dated 12 and 15 June 1998.  CI Moore made it plain that his Force wished to second PC Greenwood’s successor as an Acting Sergeant.  Supt Addison pointed out that this would be out of line with the recently introduced changes at Ashford.  Since the Tribunal attached some importance to precisely how he formulated his position, we should set out the relevant part of Supt. Addison’s letter of 15 June 1998:

“Thank you for the opportunity to provide clarification in respect of our telephone conversation concerning A/Sgt Greenwood’s replacement.  Ashford PTC is moving to a trainer base which consists of PC and civilian law trainers.  The intention is that in the future those groups of trainers will be supervised by substantive sergeants. There are 3 reasons for this … [The reasons are then set out].

I am aware that there is an argument which suggests that this is being done to cut costs, however, the profile on lengths of service related to pay of trainers means that such savings are negligible and are not the main driver.

The centre started moving towards PC and civilian trainers in 1997.  The appointment of a trainer as an acting sergeant would be a backward step in that process.  It is also one which, if NPT were to decide to formalise this policy, could cause problems in the future.  The issue of acting and temporary sergeants being employed whilst the centre employs PC trainers, and civilian trainers, is also an issue which has given rise to several grievances and which could be in breach of the equal pay act.

For all of the above reasons, and accepting your concern that this may affect the quality and quantity of people coming forward for secondment to Ashford PTC, I would urge that your Force re-visit its policy in order to accommodate our needs.”

The letter went on to discuss some possible alternative ways of dealing with the problem, none of which Supt. Addison favoured.

7.	In the event, as the Tribunal found, PC Ord accepted the secondment in the following month on the basis that it would be in the rank of Constable.  She did so, in the knowledge that it was accepting a reduction in salary and rank, because she wanted the career development opportunity which the secondment would offer.  It appears therefore - though the Reasons do not find precisely how this occurred - that CI Moore and the City of London Force had bowed to the insistence of Supt. Addison. 

8.	The position accordingly was that when PC Ord started work at Ashford in January 1999 she was paid on the basis of her rank as a Constable, whereas her immediate predecessor, PC Greenwood, had been paid as a Sergeant.  Since, as is conceded, she was plainly doing like work with him, her complaint is that this situation involved a breach of the equality clause implied into her contract by virtue of s. 1 (2) (a) of the 1970 Act.  The Home Secretary, however, contends that the variation between her pay and his was due to a material factor other than the difference of sex, namely (to summarise) the “post-McKillop” arrangements at Ashford.  On that basis, he contends, he has a defence under s. 1 (3) of the Act.

9.	On the face of it, that defence seems plainly good.  As Mr. Tolley, who appeared for the Home Secretary, reminded us, the House of Lords has made it quite clear that the Tribunal has no concern whether the reason for a variation is good or bad, so long as it is genuine and neither directly or indirectly discriminatory: see Strathclyde Regional Council v. Wallace [1998] ICR 205 and Glasgow City Council v. Marshall [2000] ICR 196.  There was no suggestion here that the requirement that PC Greenwood’s successor be a Constable was influenced in any way by the fact that PC Ord was a woman: indeed the Tribunal expressly found that at the time when Supt. Addison adopted the position that he did he was unaware of this.  Nor was there any suggestion in the Tribunal’s Reasons that CI Moore’s eventual agreement to Supt. Addison’s position was because he was influenced by PC Ord’s gender; and Ms. Tether, who appeared for PC Ord, did not contend that such a finding should have been made.  (Indeed on the face of it any such finding would not have constituted discrimination by either of the Respondents.)

10.	The Tribunal, however, rejected the Home Secretary’s defence under s. 1 (3).  It did so on essentially two grounds, which are set out in paragraphs 98-100 of the Extended Reasons.

11.	First, it held that the Home Secretary had failed to prove that there was in place at Ashford in mid-1998 any “policy” relevant to the rank at which PC Ord was seconded.  The Tribunal makes three points:

(a)	It states that “the documentary evidence shows that the pilot project had ended”.  It relies on the minute of a meeting dated 27 January 1998, in which Supt. Addison is reported as saying:

“The experiment has now concluded and it has been a positive experience.  He will produce a final report for 3 March meeting.”

(b)	It refers to Supt. Addison’s letter of 15 June, of which we have set out the material parts above.  It comments:

“His letter … uses wording which does not reflect an existing governing policy, but rather reflects a future aspiration. He does not state that he is relying upon a policy: he refers to The City of London Force Policy but in respect of the Training Centre, he refers to accommodating “our needs”.”

(c)	It refers to PC Ord’s formal letter of appointment from Ashford, which is dated 12 August 1998, which contains a reference to the terms which would apply “if your Force grants you temporary promotion for the purpose of this appointment”.  The Tribunal comments that this is “clearly inconsistent with any such governing policy being enforced as Supt. Addison contended”.

12.	With respect to the Tribunal, that reasoning is inconsistent with the primary facts it had itself found and the inferences necessarily to be drawn from those facts.  We take the Tribunal’s points in turn.

13.	As to (a), the Tribunal appears to have thought that the “conclusion” of the pilot necessarily meant that the arrangements which had been operating during it lapsed – at least in the absence of any formal decision to adopt them on a permanent basis.  That would be extremely surprising.  The pilot had necessitated the introduction of new working arrangements – that is, arrangements under which the front-line training was delivered by Constables alone, with Sergeants taking a supervisory role.  If those arrangements proved satisfactory, as the unchallenged evidence showed that they did, what one would naturally expect would be that they would be continued.  It would be remarkable if the Centre decided that the experiment had been a success but simply brought it to an end and reverted to what they had been doing before.  The documents show no sign of anything of the kind occurring.  On the contrary, they show plainly that, following the successful conclusion of the pilot, the Centre continued with the arrangements in question, albeit that they had not yet formally become national policy.  That is entirely clear from Supt. Addison’s letter of 15 June 1998 which we have set out above.  This makes plain that the “mov[e] towards PC and civilian trainers” had started in the previous year and was a continuing process.  Further, the bundle contains a document headed “Report on Team Approach and Constable Trainers at Ashford PTC 12 months on”.  This is dated May 1999 and purports to describe the experience of the Ashford PTC in operating the arrangements initially introduced in the pilot.  The entire report is predicated on the basis that those arrangements have been in operation from the conclusion of the pilot to date.  The point could be made from many passages, but is sufficiently illustrated by the opening sub-paragraph of the final “Comments” section, which reads as follows:

“5.1  Constables Trainers are a reality – they deliver the current package. The HMCIC and NPT Strategic Board agree that this is good practice. Constables at Ashford value the opportunity and recognition that goes with the role.”

14.	Mr Tolley referred us to other material pointing in the same direction which it is common ground was before the Tribunal but to which it did not refer; but the foregoing is enough.  It is clear to us that the only conclusion to which the Tribunal could properly have come on the evidence was that the arrangements introduced in the 1997 pilot - whether they be described as a continuing “policy” or “practice” or by whatever other term - remained in place thereafter and, specifically, were in place at the time that Ashford insisted on PC Ord being seconded in the rank of Constable; and that the existence of those arrangements was the reason for that insistence.

15.	As to (b), the distinction which the Tribunal makes between a “policy” on the one hand and a “future aspiration” or the Centre’s “needs” on the other hand seems to us without substance.  There is no magic in the formal status of the arrangements in force at Ashford.  What the Tribunal was concerned with under s. 1 (3) was what was the cause of PC Ord being seconded as a Constable rather than as a Sergeant.  If, as seems to us beyond argument, the cause was that Ashford insisted on all new trainers being seconded as Constables in order to fit in with the “post-McKillop” arrangements which had been piloted in 1997, it is entirely irrelevant what label is attached to that reason.

16.	As to (c), the inclusion in the letter of 12 August 1998 of a reference to a possible promotion for the purpose of secondment could undoubtedly – if read in isolation – be capable of being construed as an indication that Ashford were content for her to be seconded as a Sergeant.  But it cannot be read in isolation.  Supt. Addison’s letter of 15 June 1998, and PC Ord’s subsequent secondment as a Constable, shows beyond doubt that that was not Ashford’s position.  It is neither necessary nor possible for us to find as a fact what the explanation for the wording of that part of the letter of 12 August 1998 is.  But it is not difficult to identify possible explanations.  One is that the draftsman of the letter was catering for the possibility that PC Ord might receive a promotion during the course of the secondment: typically, the secondment might last three years, and even under the new arrangements there was a role for Sergeants as supervisors.  Another possible explanation is simply that this was a standard-form letter originating in the “pre-McKillop” era.  But, whatever the explanation, all that matters is that in our view the fact that a letter containing this provision was written could not justify the Tribunal in ignoring what is otherwise the plain conclusion to be drawn from the evidence.

17.	Secondly, the Tribunal said, in paragraph 100 of the Reasons:

“Furthermore, in our judgement, it is not enough simply to show that there is a notional policy.  The Respondent must show that there is a practice which follows and reflects that policy.  In this case, it is apparent that there were anomalies and exceptions prevailing at the time of the secondment, and they were all in favour of male officers.”

The “anomalies and exceptions” referred to are trainers working at Ashford at the relevant time but holding the rank of Sergeant: see para. 25 of the Reasons.

18.	In considering that ground for rejecting the Home Secretary’s s. 1 (3) defence, it is important to be clear what the significance of any “anomalies and exceptions” might be.  It might, in principle, be the case that an asserted “policy” could be shown to be so widely disregarded that the Tribunal was entitled to conclude that it did not exist at all and was a sham.  However, the mere fact that a policy is not perfectly applied or implemented does not necessarily mean that it is not genuine or therefore that it cannot be relied on as a defence in those cases where it can be shown to have been the reason for the treatment complained of.  In the present case, Mr. Tolley demonstrated – and Ms. Tether did not dispute – that the unchallenged documentary evidence before the Tribunal showed that all those trainers at Ashford who held the rank of Sergeant at the material time or shortly thereafter either had been seconded from their Forces with that rank prior to the introduction of the new policy or had been transferred to Ashford on the closure of another PTC at Shotley in July 1999.  There was no case in which Ashford had, after the beginning of 1999, taken a new trainer on secondment otherwise than with the rank of constable.  That being so, the existence of the “anomalies and exceptions” referred to by the Tribunal casts no doubt on the genuineness of the policy.  It was in fact inevitable that it would take some time for trainers seconded before the new system came in to work their way through.  

19.	The Tribunal also claims that all of the “anomalies and exceptions” were men.  That fact by itself could not be a sufficient basis for inferring either direct or indirect discrimination.  Its significance would depend on the numbers involved (both absolute and proportionate), which the Tribunal does not review, and on the strength of the evidence of some non-discriminatory reason for the anomalies.  In the present case, we would have been prepared to hold that the absence of any female Sergeants was purely fortuitous in the light of the clear evidence as to why these anomalies occurred.  In any event, however, the Tribunal can be conclusively shown to have been in error: there was in fact a woman among the “anomalies”, PS Corder, who was one of the transferees from Shotley.

20.	We accordingly conclude that on the evidence before the Tribunal there was no basis on which it was entitled to reject the Home Secretary’s defence under s. 1(3) of the Act.  The appeal in this respect must be allowed and PC Ord’s claim under the Act dismissed.

THE SEX DISCRIMINATION ACT CLAIM

21.	The factual background to this claim can be summarised as follows.  On 23 March 1999 PC Ord went out for the evening with some of her students.  The students were obliged to return to the Centre by midnight.  At about 11.30 p.m. she and five of the students went back to her flat, which was some way from the Centre, for drinks.  PC Ord telephoned the Centre to say that a taxi which had been ordered had not turned up and the students would therefore be late.  This was a lie.  No taxi had been ordered: she was simply making an excuse for the students being late.  They finally returned to the Centre at about 1.00 a.m., where they were seen by Supt. Addison.  The next morning, when she knew there was to be an investigation of the students’ lateness, PC Ord discussed the position with her supervisor, Sgt Leighton, and another officer.  In her first account to Sgt Leighton she did not tell the whole story (though she subsequently did so).  Sgt Leighton reported the matter to Inspector Harding.  Inspector Harding saw PC Ord and understood her to accept that she had acted dishonestly.  Inspector Harding in turn reported the matter by telephone to Supt. Addison, who was away for the day; and he took the decision there and then to return PC Ord to her own Force.  Her secondment was formally ended the next day.  She suffered no disciplinary sanctions from the City of London Force on her return.

22.	The gist of PC Ord’s complaint under the Sex Discrimination Act was that, although she accepted that she had indeed behaved badly, there had been several other, broadly comparable, instances of misconduct by officers at the Centre, none of which had resulted in such a precipitate and serious sanction.  Some of the “comparator” officers had not been returned to their Force at all.  Some had been, but only after a period during which there had been a proper investigation and they had been given an opportunity to state their case.  All these officers who had, on her case, been more leniently treated, were men; and the Tribunal was invited to conclude on that basis that PC Ord had been less favourably treated than a man would have been had he committed the same misconduct. 

23.	It needs to be noted that PC Ord complained separately of (a) the process by which the decision in her case was arrived at, i.e. the fact that she was sent back ‘overnight’, and (b) the decision itself.  In other words, her primary case was that a man in the same circumstances would not have been sent back at all; but she complained in the alternative that he would in any event not have been sent back at once and without some kind of due process.  Success on the latter basis only would have been a very limited victory.  Ms. Tether, while she maintained before us that the distinction was a valid one, made it clear that she relied on the ‘process’ discrimination primarily as supporting her allegation of discrimination in relation to the outcome.

24.	The Tribunal found both aspects of the complaint proved.  It was prepared to draw an inference of discrimination on essentially two grounds:

(1)	It accepted PC Ord’s case that there had been a number of other instances in which men found guilty of broadly comparable misconduct had been treated differently from her.  It relied on four incidents (involving five officers) which it analysed in some detail between paragraphs 52 and 68 of the Reasons.  There had in fact been evidence before it of eight other cases of misconduct, but the facts of those cases were not examined in detail, apparently (though this is not clearly stated in the Reasons) because the circumstances were accepted to be not as closely comparable as in the cases of the five officers which were examined in detail.

(2)	It was unimpressed by the explanations proffered by Supt. Addison for what it perceived as the differences of treatment between those cases and PC Ord’s.

The Tribunal also observed that the haste with which Supt. Addison acted created precisely the kind of situation where discriminatory conduct might occur.

25.	It should be noted, in fairness to Supt. Addison, (a) that the Tribunal’s finding was expressly no more than that PC Ord’s gender played “a significant part” in his treatment of her - which is, of course, sufficient to ground a claim under the Act – and (b) that this was not a case where there was any evidence of overtly sexist attitudes or conduct.  What, in effect, the Tribunal found was that Supt. Addison was to some extent affected by a subconscious prejudice which influenced his behaviour on this occasion.

26.	The drawing by the Tribunal of an inference of subconscious prejudice, using the kind of material relied on here, is of course the kind of exercise which Employment Tribunals very commonly have to perform in discrimination cases.  As has been pointed in numerous authorities, and in particular the decision of the Court of Appeal in King v. Great Britain-China Centre [1992] ICR 516, discriminatory motivation is very often subconscious and can only be established by inference; and the absence of a convincing explanation for apparently different treatment of men and women in comparable situations may well be a legitimate basis for drawing such an inference.  Whether the inference should be drawn in any given case is a question of fact for the Tribunal.  The Court of Appeal in Yeboah v Crofton [2002] IRLR 634 has recently re-emphasised that, in the absence of a patent misdirection, the Appeal Tribunal should be slow to overturn the decision of an Employment Tribunal arrived at by this route.  At paragraph 93 of his judgement (p. 643) in that case Mummery LJ said that an appeal on the grounds of perversity

“… ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable Tribunal, on a proper appreciation of the evidence and the law, would have reached.  Even in cases where the Appeal Tribunal has “grave doubts” about the decision of the Employment Tribunal, it must proceed with “great care”: British Telecommunications plc v. Sheridan [1990] IRLR 27 at paragraph 34.”

27.	Against that background, Mr Tolley faced an uphill struggle.  He acknowledged that he could not present this case as one in which the Employment Tribunal had no evidence from which to draw the inference in question.  His case had to be straightforwardly one of perversity.  He addressed separately the “outcome” and “process” complaints.  We take them in turn.

28.	So far as the “outcome” complaint is concerned, Mr Tolley’s broad point was that the disparities on which the Tribunal relied essentially related to the process by which PC Ord was sent back and were not capable of supporting a conclusion of discrimination in the outcome.  He pointed out that three of the five officers were in fact, like PC Ord, returned to their Force.  The only difference between her treatment and theirs was that they were given twenty eight days’ notice (and in at least one case in fact remained at the Centre for longer than that).  That fact has certainly given us pause.  It might well have been treated by the Tribunal as substantially undermining any case based on disparity of outcome.  But we must resist the temptation of second-guessing the Tribunal’s exercise, in circumstances where we do not have the full material before us and did not hear the evidence of Supt. Addison.  The Tribunal was well aware that the officers in question were (eventually) sent back: the circumstances in each case are analysed in the Reasons.  There remained two cases which the Tribunal regarded as comparable where the officer was not sent back.  In our view those cases constituted a sufficient basis for a finding by the Tribunal of less favourable treatment as regards outcome as well as process.

29.	Mr Tolley made five other points in relation to the outcome complaint:

(1)	He contended that the Tribunal failed to identify the “salient features” of PC Ord’s misconduct, which was necessary in order that a proper comparison could be made with the features identified in the other cases.  We do not accept that that is the case.  Although the Tribunal did not in her case, as it did in those of the five “comparators”, specifically itemise the features on which it relied for the purpose of the comparison, they are sufficiently apparent from its discussion of the differences between her case and theirs: see in particular paragraph 103 of the Reasons.

(2)	He contended that none of the other cases involved the same combination of circumstances as PC Ord’s: hers was sufficiently more serious to explain the difference of treatment.  In our view the degree of similarity between the cases, and thus whether they were legitimately comparable, was a matter for the assessment of the Tribunal.  It undertook that assessment analytically and with evident care.  It is neither appropriate nor possible for us to re-do that exercise.  There is certainly room for argument that PC Ord’s misconduct was worse than that of the comparators; but we cannot say that her case was so obviously and grossly worse than theirs that the Tribunal was bound to treat the cases as non-comparable.

(3)	He submitted that the Tribunal failed to take account of the fact that Supt Addison had been keen to heighten discipline at the Centre following a critical report by HM Inspector of Constabulary.  We do not accept that that is so.  The relevant facts are dealt with in some detail in paragraphs 70-73 of the Reasons.  We are not prepared to hold that the failure of the Tribunal expressly to refer to this aspect in the section of the Reasons where it states its conclusion evidences a failure to take the point into account.

(4)	He submitted that the Tribunal erred “[by treating] … the other disciplinary cases as actual comparators even though the relevant circumstances were not the same”.  He referred to the decision of the Northern Ireland Court of Appeal in Shamoon v. Chief Constable of the Royal Ulster Constabulary [2001] IRLR 520, and – by way of distinction – to Chief Constable of West Yorkshire v. Vento [2001] IRLR 124.  Ms. Tether in response referred us to Balamoody v. United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2002] ICR 646.  In our view it is important not to over-complicate the analysis.  What the Tribunal was doing in this case was looking at how men had been treated in certain broadly comparable cases in order to see whether there was a disparity which might justify an inference of discriminatory motivation.  That is, in principle, an obviously legitimate exercise and we doubt whether it matters how it is analysed conceptually.  It could be regarded as a comparison of PC Ord’s treatment with that of the other officers as direct comparators, with the Tribunal taking the view that the differences of detail between the relevant circumstances were not “material”: see s. 5 (3) of the 1975 Act.  Or, if the circumstances of the other cases were not regarded as sufficiently similar for that purpose, the comparison could be regarded as evidence of how a hypothetical man would have been treated had he been in precisely PC Ord’s situation (in which case the other officers would not be “comparators” in the strictest sense).  We believe that it was probably the latter exercise that the Tribunal was carrying out.  Either way, however, the exercise requires essentially the same assessment, namely whether the relevant circumstances are sufficiently similar for the disparity in treatment to count as evidence (not necessarily decisive evidence) of discrimination.  As we have said, that assessment was one for the Tribunal.

(5)	He asserted that “the tribunal ultimately failed to give any or any adequate reasons for its conclusion”.  We do not accept this.  Paragraphs 102-108 of the Reasons make it clear that the Tribunal based its inference on its conclusion that PC Ord was treated more harshly than the “comparator” officers and on the unsatisfactory nature of Supt. Addison’s explanations.

30.	As to the “process” complaint, Mr. Tolley made two further points:

(1)	He took issue with the Tribunal’s finding that the speed with which PC Ord was returned to her Force was unique.  Although in none of the five cases examined in detail had the officer been returned to his Force on less than twenty eight days’ notice, there were, he said, four cases among the other eight where, on the (apparently unchallenged) evidence the officers in question were sent back without notice.  The Tribunal had commented in relation to the eight that “there is not a single instance of an officer being returned overnight as was Miss Ord” (Reasons, para. 68).  Mr. Tolley said that that was demonstrably wrong.  But in fact, as we understand it, although those officers were not given twenty eight days’ notice, the Tribunal was correct to say that none was returned “overnight”: in all the cases there was – for reasons peculiar to the case – an interval between the discovery of the misconduct and the return to Force.  We can see the argument that what matters in substance is not so much whether they were “overnight” cases as whether they were “no notice” cases, but these details of the comparison process, are, again, matters for the assessment of the Tribunal.  It must also be borne in mind that the focus of the Tribunal’s enquiry was on the five cases which were judged to be closest to PC Ord’s on their facts: the officers in these other four cases were all sent back following allegations of indecent assault or other inappropriate sexual behaviour towards students.

(2)	He challenged the Tribunal’s observation (Reasons, para. 104) that where a person reacts hastily to a given situation “with a lack of consideration and foresight”, those are “circumstances in which a discriminatory act is more likely to be committed”.  No doubt there is room for argument about that proposition, but it does not seem to us self-evidently wrong.  As Ms. Tether submitted, it is reasonable to take the view that subconscious discriminatory prejudices or motivations are more likely to operate where the actor does not stop to consider whether proper grounds for action exist.  We can see no error of law in the Tribunal making this point.

31.	The result is that we dismiss the appeal in relation to the Sex Discrimination Act claim.  Our fundamental basis for doing so is that the decision whether material of the kind which was relied on in this case justified an inference of discrimination is quintessentially one for the Tribunal.  Its assessment must be respected unless there are very clear grounds for setting it aside.  The circumstances in the present case certainly do not demonstrate a glaring case of discrimination, and we do not say that if we had been in the Tribunal’s shoes we would necessarily have reached the same conclusion.  But it was and is not our decision, and we can see no error of law in the conclusion reached by the Tribunal.