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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Commissioner of Police of The Metropolis v. Ledlie [2003] UKEAT 1215_01_0403 (4 March 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/1215_01_0403.html Cite as: [2003] UKEAT 1215_1_403, [2003] UKEAT 1215_01_0403

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APPEARANCES

 

For the Appellant	SUZANNE McKIE (Of Counsel) Instructed by: The Directorate of Legal Services The Metropolitan Police Service New Scotland Yard Broadway London SW1H OBG
For the Respondent	CATRIN LEWIS (Of Counsel) Instructed by: North Lambeth Law Centre 14 Bowden Street Kennington London SE11 4DS


 


MR JUSTICE KEITH

1. Patricia Ledlie is employed by the Commissioner of Police for the Metropolis as a traffic warden. On 8 December 1999 she presented a complaint of racial discrimination against the Commissioner to an Industrial Tribunal (as it was then called). By a decision promulgated on 31 August 2001 an Employment Tribunal (as it had by then become) held at London South found that Ms Ledlie had been unlawfully discriminated against on racial grounds. The Commissioner now appeals against that finding.
2. The relevant background facts which the Tribunal found were as follows. Ms Ledlie was one of six traffic wardens based at Brentford Police Station, which was one of the police stations in the Hounslow Division of the Metropolitan Police. The Traffic Warden Manager at Brentford Police Station began a long period of sick leave, and in May 1998 Ms Ledlie was promoted to act in the post of Traffic Warden Manager in his absence. In June 1999 one of the other traffic wardens at Brentford Police Station, Mandy Edwin, made a number of complaints about her treatment by Ms Ledlie which Ms Edwin subsequently alleged was racially motivated. Ms Edwin is a black Afro-Caribbean woman, whereas Ms Ledlie, who is Anglo-Indian by ethnic origin, has regarded herself, for the purposes of this case at any rate, as white. Ms Edwin's complaints were investigated by Chief Inspector Baker, the Divisional Head of Traffic, under the relevance grievance procedure, and Chief Inspector Baker also considered whether the complaints justified the invocation of the relevant disciplinary procedure against Ms Ledlie.
3. Before Chief Inspector Baker had completed his investigation of Ms Edwin's complaints, two things had happened. First, in the course of his enquiries Chief Inspector Baker had identified two camps among the traffic wardens at Brentford Police Station, one camp supporting Ms Ledlie and the other camp supporting Ms Edwin. He discussed the matter with Simon Brown, the Traffic Warden Area Manager, and Cathryn Marsh, the Personnel Officer. They noted that Ms Ledlie was about to go on leave, and that she had appointed one of her supporters to act as the traffic warden manager in her place during her absence. They thought that that was unwise. Accordingly, they appointed a substantive traffic warden manager to act as the traffic warden manager at Brentford Police Station during Ms Ledlie's absence, and they decided to reconsider the matter when Chief Inspector Baker had submitted his report. Secondly, on 31 August 1999 Ms Edwin presented a complaint of racial discrimination against the Commissioner to the Industrial Tribunal. That was not a complaint about the way Ms Ledlie had treated her but a complaint that Ms Ledlie had been treated more favourably than her.
4. Chief Inspector Baker submitted his report on Ms Edwin's complaints on 2 September 1999. He had not considered all the complaints because some of them were more appropriate for line management to deal with and he left those for Mr Brown to consider. Chief Inspector Baker's report dealt with all of the complaints which he considered, and he concluded that there were no grounds for taking disciplinary action against Ms Ledlie. She had not done anything to harass Ms Edwin or to single her out for unfavourable treatment. However, Chief Inspector Baker thought it right to comment on the atmosphere at the police station and the implications for management of the situation uncovered by Ms Edwin's complaints. He concluded that Ms Ledlie had been at fault in trying to deal with everything herself, that she had been naïve over who she could or could not trust, and that she had been indiscreet at times over comments which she had made. However, he recognised that Ms Ledlie had not been "trained in the art of management", that she had been left to "sink or swim", and that the difficulties which had arisen could have been settled sooner if they had been dealt with by line management. He recorded the fact that none of the other traffic wardens who he had interviewed, including Ms Edwin's supporters, had thought that any of Ms Ledlie's actions towards Ms Edwin had been racially motivated.
5. As for the future Chief Inspector Baker recommended that a new traffic warden manager should be appointed at Brentford Police Station immediately, and that the new manager should bring Ms Edwin and Ms Ledlie together in an attempt to settle their differences. He considered that it would not be possible for their differences to be settled while Ms Ledlie was acting as traffic warden manager, and he recommended that she be returned to the post of traffic warden. He noted that Ms Edwin would not be satisfied until Ms Ledlie had been "demoted", transferred or in a position where the two of them would not have to work beside each other.
6. Chief Inspector Baker's report was considered by Mr Brown, Ms Marsh and Superintendent Finnimore to whom Mr Brown reported. They agree that there was no basis for instituting disciplinary proceedings against Ms Ledlie, and that she should return to the post of traffic warden. However, the ultimate decision as to what should happen rested with Superintendent Finnimore, and he decided that Ms Ledlie should be moved from Brentford Police Station to Hounslow Police Station. The critical question is what findings the Employment Tribunal made as to why Superintendent Finnimore reached that decision.
7. His evidence, and we underline that to make it clear that we are at present only summarising his evidence, was that he did not see how a unit of only six traffic wardens could function if the working relationships between two of them had broken down and the others had taken sides. In his opinion, either Ms Edwin or Ms Ledlie had to be moved. He knew about the complaints of racial discrimination which Ms Edwin had presented, and he believed that Ms Edwin could legitimately claim that she had been victimised if she were moved. Moreover, he thought that Ms Ledlie's position as a traffic warden would be invidious at a police station where she had previously acted as traffic warden manager for over a year. He therefore decided that Ms Ledlie should be moved, and since there were plans for all the traffic wardens at Brentford Police Station shortly to move to Hounslow Police Station as part of a programme of restructuring, it was to Hounslow Police Station that Ms Ledlie was transferred. In short, on Superintendent Finnimore's evidence, her return to the post of traffic warden and her transfer to Hounslow Police Station would be no more than the bringing forward by a few months of what was likely to happen anyway. Superintendent Finnimore informed Ms Ledlie of his decision on 21 September 1999. Ms Ledlie was transferred to Hounslow Police Station, and she was still there when the Employment Tribunal heard her case.
8. The acts of discrimination of which Ms Ledlie complained in the Employment Tribunal were (a) her return to the post of traffic warden and (b) her transfer to Hounslow Police Station. As for her return to the post of traffic warden, the Tribunal in paragraph 29 of its extended reasons said "that the division within the Brentford team of traffic wardens could not be healed while one of the protagonists remained as the manager and we therefore do not conclude that race was a factor in the ending of her temporary rank of manager." There is no cross appeal by Ms Ledlie against that finding. As for Ms Ledlie's transfer from Brentford Police Station, the Tribunal dealt with that in paragraphs 30 and 31 of its extended reasons. They read:

"30. We reject Mr Finnimore's explanation. In the face of two managers who have met both parties and had recommended that Ms Ledlie stay at Brentford, he decided without seeing her or hearing her side to move her. We can understand that a person of his rank should expect managers to be accountable, and if they fail in their management task they cannot complain about being moved. But equally he could have taken into account that Ms Ledlie was put into the post without any training in management, that all the charges against her were unfounded, and were in Simon Brown's words 'more vindictive than positive'. Whilst he may not have understood the extent of Ms Ledlie's dismay he should at the very least have sought her reaction before making his final decision, even though in his view her period of management of Brentford and indeed Hounslow would have ended within the next three months.

31. We conclude that a major factor in Mr Finnimore's decision was that if he moved Ms Edwin she would complain of victimisation. Her complaint to the Tribunal was of race discrimination against the Police for treating Ms Ledlie more favourably than her. If therefore there had not been a difference of race between her and Ms Ledlie, she could not have brought that complaint. Therefore Mr Finnimore's decision was only possible if there was a difference in race between the two and his decision was therefore on racial grounds. A non-discriminatory course was perfectly possible. Mr Finnimore could as recommended by Chief Inspector Baker and Mr Brown have trusted Mr Brown to run the unit and deal with the problems between Ms Ledlie and Ms Edwin. We had heard no evidence that the unit was dysfunctional as described by Mr Finnimore and we therefore conclude that a substantial factor in his decision to move the Applicant was the difference of race between the two traffic wardens. Therefore in respect of the move to Hounslow but that only, we find for the Applicant."

We shall return to those two paragraphs a little later in this judgment.

9. The appeal raises two issues. First, was the Chief Constable of a police force liable for acts of racial discrimination carried out by police officers in his force towards his civilian employees in September 1999 when the decision to transfer Ms Ledlie to Hounslow Police Station was made? We shall refer to that as the liability issue. Secondly, did the decision to transfer Ms Ledlie for such reasons as Superintendent Finnimore did amount in law to an act of racial discrimination? We shall refer to that issue as the discrimination issue. At the preliminary hearing, this Tribunal did not permit a further argument to go to a full hearing namely that such finding as the Tribunal made relating to Superintendent Finnimore's reasons as to why he decided to transfer Ms Ledlie was perverse. We shall refer to that issue as the perversity issue.
10. The liability issue was not raised in the Employment Tribunal. Nor was it relied on in the Commissioner's Notice of Appeal. It was raised for the first time by an amendment to the Notice of Appeal which the Registrar allowed on 4 February 2002. But this Tribunal did not refer to the liability issue at all when it is allowed the discrimination issue to go forward to a full hearing, but did not allow the perversity issue to go forward. Accordingly, despite the Notice of Appeal having been amended to raise the liability issue, this Tribunal has not yet allowed the issue to go forward to a full hearing.
11. However, the liability issue no longer raises an important issue of principle - at any rate for the future. That is because the effect of the Court of Appeal's decision in Chief Constable of the Bedfordshire Police v Liversidge [2002] ICR 1135 has been negatived by a recent statutory amendment. In Liversidge it was held that a Chief Constable was not liable for an act of racial discrimination committed by one police officer on another because of the particular wording of section 16(1) of the Race Relations Act 1976 ("the 1976 Act"). That is no longer the law in respect of acts of racial discrimination committed by police officers after 2 April 2001, since the police are now separately provided for by section 76A of the 1976 Act, which was added to the 1976 Act by section 4 of the Race Relations (Amendment) Act 2000. The effect of section 76A is that an act of racial discrimination done by a police officer in the performance, or purported performance, of his functions is treated as having been done in the course of what is deemed to be his employment by the Chief Constable, thereby making the Chief Constable vicariously liable for that act of racial discrimination. As it is, in view of the conclusion which we have reached on the discrimination issue, we have not thought it appropriate to consider the liability issue. The change in the law has made it doubly inappropriate for us to do so.
12. We return to paragraphs 30 and 31 of the Tribunal's extended reasons. There are two very contrasting views as to what the Tribunal was saying in those two paragraphs. The argument advanced by Ms Suzanne McKie for the Commissioner is that what the Tribunal was rejecting in paragraph 30 was Superintendent Finnimore's view that Ms Ledlie should be moved. The Tribunal was not finding that the reasons which he had given in his evidence for transferring her from Brentford Police Station were not his true reasons. And of the two reasons which he had advanced for transferring Ms Ledlie from Brentford Police Station (one being the difficulty of her remaining at Brentford Police Station as a traffic warden where she had previously had a managerial role, and the other being the concern that if Ms Edwin was moved the Commissioner might be faced with a claim for victimisation from Ms Edwin), the Tribunal found in paragraph 31 that the principal reason for the move was the latter. For reasons which it is not necessary to develop, Ms McKie argued that if the latter had been the principal reason for Ms Ledlie's move, the decision to move her could not in law have amounted to an act of racial discrimination having regard to the definition of direct discrimination in section 1(1)(a) of the 1976 Act and the need to compare like with like. Ms Catrin Lewis for Ms Ledlie did not seek to argue otherwise on this last point.
13. What Ms Lewis argued was that the Tribunal was indeed rejecting Superintendent Finnimore's evidence as to the reasons he had for moving Ms Ledlie from Brentford Police Station. So when the Tribunal found in paragraph 31 that "a substantial factor in [Superintendent Finnimore's] decision to move [Ms Ledlie] was the difference of race between the two traffic wardens", that was not the same factor as the one referred to at the beginning of paragraph 31, namely that "if [Superintendent Finnimore] moved Ms Edwin she would complain of victimisation". What the Tribunal must therefore be taken to have found is that when it referred to the difference of race between Ms Ledlie and Ms Edwin, the Tribunal was referring to the fact that one was black and the other was white, not to the fact that Ms Edwin might claim to have been victimised if she was moved. On this last point, Ms McKie did not suggest that if that had been what the Tribunal had found, the decision to move Ms Ledlie was not an act of racial discrimination.
14. It follows that the outcome of the appeal on the discrimination issue is entirely dependent on what the Tribunal in fact found was the reason (or at any rate the principal reason) for Superintendent Finnimore's decision to transfer Ms Ledlie from Brentford Police Station. Having read paragraphs 30 and 31 a number of times, we are inclined to the view that Ms McKie's reading of it is correct, but we are far from being sure about that. In these circumstances, we see no alternative but for the case to be remitted to the Employment Tribunal for the appropriate findings of fact to be made. We have considered whether we should remit the case back to the same Employment Tribunal for it to produce further reasons which explain what its findings of fact are, but in the circumstances of the case we have concluded that that would not be the right course. The Tribunal might be tempted, albeit completely unconsciously, to find the facts in a way which would not alter its ultimate view of the outcome of the case. We therefore think that the case should be reheard by a differently constituted Employment Tribunal. We very much regret the inconvenience and expense which this will cause to the parties, but we do not think that we have any other alternative.
15. For these reasons, therefore, this appeal must be allowed, the decision of the Employment Tribunal must be set aside, and we remit the case to the Employment Tribunal to be reheard by a differently constituted Tribunal. In the normal course of events, it would not be open to a party to take a new point on a remission to the Employment Tribunal, but the reason why we are not deciding the liability issue ourselves is because the discrimination issue is being remitted to the Employment Tribunal, and it is desirable for the liability issue to be decided in the Employment Tribunal before being considered by this Tribunal. In the interest of completeness, we should add that, although the liability issue will be at large in the Employment Tribunal, the discrimination issue is limited to the question: did the transfer of Ms Ledlie from Brentford Police Station to Hounslow Police Station in September 1999 amount to an act of direct racial discrimination?