![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
United Kingdom Employment Appeal Tribunal |
||
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Dattani v West Mercia Police [2005] UKEAT 0385_04_0702 (7 February 2005) URL: http://www.bailii.org/uk/cases/UKEAT/2005/0385_04_0702.html Cite as: [2005] UKEAT 0385_04_0702, [2005] UKEAT 385_4_702 |
[New search] [Printable RTF version] [Help]
At the Tribunal | |
On 6 December 2004 | |
Before
HIS HONOUR JUDGE MCMULLEN QC
MS K BILGAN
MR A E R MANNERS
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MS H GOWER (Of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors Landore Street Cardiff CF10 2GD |
For the Respondent | MS D ROMNEY (Of Counsel) Instructed by: Messrs Dolmans Solcitors 17-21 Wiondsor Place Cardiff CF10 3DS |
(1) ET erred when, in considering whether C had made out a prima facie case of race discrimination, it paid attention at that stage to evidence and explanations of the… R. Sinclair Roche & Temperley [2004] IRLR 763 EAT applied.
(2) Inferences may be drawn under RRA 1976 Section 65 from material given by a respondent in response to a statutory questionnaire, or otherwise, including a Response and additional information.
HIS HONOUR JUDGE McMULLEN QC
Introduction
"The applicant is Indian by descent, that is his ethnic group. He was and is the only minority ethnic police officer in the Division."
The other errors, while a distraction, are not serious.
"1 By an Originating Application dated 3 November 2000 the applicant, Mr Allan Dattani, complains of Unlawful Discrimination Race Relations 1976. After setting out a history of being with the Respondents, West Mercia Constabulary, the Originating Application says that on 25 October 2000 he was transferred from Hereford Police Station to Ross on Wye Police Station. He says, "On questioning why, and the duration of this transfer I was informed that I performed by duties as a supervisor in a competent, diligent and meticulous manner. The transfer was to be a permanent one. I have never applied for this transfer nor any other. On scrutinizing the circumstances it is clear that there are other officers similar in rank, with similar or more skills, less service, same length of service and more service as well. None of these was subjected to this enforced transfer. I believe this transfer and the given reasons for it is highly discrimatory and clearly breach the Race Relations Act 1976".
2 The Notice of Appearance in the case, entered on behalf of the West Mercia Police Authority and four named police officers Respondents says: "That as part of the restructuring the Hereford command team carefully considered the roles, experience and qualities of all the Herefordshire sergeants. They decided that the applicant and PS Payne (a white officer) should fill the vacancies at Ross. In each case it was felt that the officer had the qualities to provide drive and energy to the Ross team. Neither had worked outside Hereford city during the service. The applicant's appointment was permanent and PS Payne's was temporary to cover for PS Thomas". The Notice of Appearance then refers to the transfer of three further white officers two into Hereford and one to Leominster. IT is denied that there has been any discrimination of the ground of race against the applicant."
The facts
"7 The applicant, who has a background of service in the Armed Forces, became a police constable with the respondents in July 1985. He was based at Hereford city police station and remained there until the events with which the Tribunal are concerned. In 1991 he received a commendation for dedication to his service. He was involved in Operation to Bumblebee in 1994. He became an acting sergeant in 1997. He was promoted to the permanent post of sergeant in May of 1998. There is an agreed chronology of events which it is not necessary to refer to in detail although certain matters set out will be considered further in this decision."
It went on to record the considerable favourable reports made on behalf of the Respondent about the Claimant's record.
"10 The respondents, the West Mercia Constabulary, have about 1,950 police officers. The Constabulary is divided into divisions. Division E is the Hereford Division. That encompasses not only Hereford City Police Station and centre but also there are section stations at Leominster, Ross-on-Wye, Ledbury, which are much smaller than Hereford. The statistics concerning Herefordshire and the Division are set out at page 325 of the bundle. These are statistics headed 'Stop Search Data' but they give some general statistics as well. For the year April 1999 to March 2000 Hereford E Division had a white population of 153,952 individuals; Asian 263; black 216; and others 420. In the period 1 April 2000 to 31 March 2001 – which is page 325a – the population is shown as follows for Hereford E Division: 166,608 white; 284 Asian; 234 black; 455 others. It can be seen therefore that this Division has a very small number of ethnic minority living within it. The applicant is Indian by decent, that is his ethnic group. He was and is the only ethnic minority police officer in the Division."
"31 In September 2000 the applicant was not expected to be moved from being based at Hereford Police Station. His personal expectation was that he would go into the custody section at Hereford Police Station. We find that on 18 September that there was a meeting between Supt Rutter, temporary Chief Inspector Harcombe, acting Chief Inspector Scott, and the substantive position as it was the permanent Chief Inspector Howard. At the end of a meeting Supt Rutter asked what about the sergeants, regarding part of this major re-structuring exercise and told the three chief inspectors to get on with it. We find that there was no discussion about how this was going to be done by Supt Rutter at that time. Mrs Nash, who is the Divisional Personnel Officer, and who gave evidence to the Tribunal, said that she was called in at the end of that exercise of restructuring of sergeants but may well have said to Chief Inspector Harcombe at the commencement of that exercise to bear in mind the service not outside Hereford. There was no policy written regarding the transfer of sergeants from Hereford Police Station to Section stations at that time. The process adopted by the Chief Inspectors was to use Post-it documents, put them on a white board in the way in which a reconstruction was made by Chief Inspector Harcombe in photographs put before the Tribunal to establish first of all that they had the thirty-nine sergeants who were the relevant sergeants at that time to ensure that no one was missed. There was a conscious decision we find on the part of the chief inspectors not to refer to any development reviews or appraisals or any other personal information because, amongst other things, some records would not exist for officers or other records would be so out of date as to be of no particular value. The exercise lasted for about one hour. Chief Inspector Howard had limited knowledge of the personnel because of his involvement at that time but acting Chief Inspector Scott, concerned with the CID or CMU management unit at the police station, did know of the background of many of the officers as did temporary Chief Inspector Harcombe.
32 Chief Inspector Harcombe said that a number of officers then went down from thirty-nine to eleven. That was because there had been no need to consider the Crime Management Unit changes because there had been a restructuring in relation to that and that was a matter that had been settled. The number went down to eleven and then others were excluded on a number of grounds and the last two left was the applicant and sergeant Tim Powell. At this time skills and roles and experienced were not considered, Chief Inspector said, until the end of the exercise. Sergeant Payne was one of the thirty-nine but he was what Chief Inspector Harcombe called a "given", namely that his future had been decided in November 1999 in relation to the change with Sergeant Thomas. Chief Inspector Harcombe said that the Further and Better Particulars statement was not correct regarding the process, that the service outside Hereford, he said, was the criteria from the start. Chief Inspector Harcombe had never undertaken before this a major restructuring exercise. …That evidence is entirely consistent with the objective information before the Tribunal how superior officers were regarding the applicant and his initiatives and attitude in relation to matters which were proceeding at that time."
51 In this case, we accept the evidence of the three chief inspectors as to the process which was undertaken in relation to the transfer. Whilst we take on board the difference in expression of what was the reason for the transfer it is plain in the documents (page 88) generated by Supt Rutter, the explanations given at the subsequent meetings, the notice of appearance and reference in Further and Better Particulars that the objective criteria of not serving outside Hereford was the reason why the applicant was transferred to Ross-on-Wye. Whilst accepting there are these differences of expression, nevertheless, we come to that conclusion. Not only for that reason but we also come to the conclusion in looking at the reasons why others were not transferred and the evidence in respect of other sergeants. either through personal reasons, illness, already. Set decisions having been made and the service background of the individuals. It is also consistent with the policy in respect of police constables. If this were a criteria which had never been mentioned at any stage or was not consistent with any other policies of the respondents, then indeed there would be some real question marks about whether as the applicant says is the case, which we reject, that this was a criteria adopted purely to justify after the event, the decision to transfer the applicant. In fact it is an objective criteria consistent with all these matters. Unlike the process which the applicant himself was involved him in moving police constables as part of the restructuring where people were consulted for their views and where superior officers consulted police constables, police constables being asked about their views, and expressing them to their senior officers, who would then put forward their views for consideration in restructuring. This did not .happen in the sergeants' restructuring. By the fact that volunteers are specifically referred to as being something which should be considered -all these matters were not undertaken by the respondents. There was no express request for volunteers for transfer before the reorganization of sergeants in September. There was no clear written criteria given to the acting Chief Inspectors by, for example, the personnel section or by the command team or the headquarters having a clear policy, in writing, as there was with police constables, so that there could be little confusion and doubt about the matter.
52 It almost goes without saying that a proper and reasonable approach for an employer to take is to consult about significant changes to people's work place because it does affect domestic arrangements that have to be made and it does affect how people see their role and would like to see their role and would like to see their professional development. The personal views of individuals can in proper circumstances be taken into account in reaching the decision. But the critical question which we have already decided on the evidence and after considering the primary findings of fact and the disputes of evidence taking into account The Code of Practice which we do take into account - as we need to -and the burden of proof looking for explanations from the respondents and whether they are credible explanations, which we do so, is that we do accept the explanations given by the respondents for the transfer of the applicant.
53 There is no evidence in this case that the transfer was on racial grounds or connected with matters of race. We have expressly found as fact that at no time did Supt Rutter in the Stop Search policy indicate that officers should stop more white members of the community or less ethnic members of the community. There is nothing which links anything in relation to that suggestion which we reject as ever having been made by the superintendent to the transfer. There is -accepted by the respondents, quite properly -a lack of proper consultation, communication and we mention in relation to Police Federation involvement as well because one of the recommendations of Supt Molloy was the involvement of UNISON or the Police Federation in such matter and again it is common sense reasons why it is good practice to do so because it avoids people leaping to assumptions. Individuals become involved in giving information which do not accord with the facts such as Mr Hornett and people such as the applicant accepting inaccurate information. This is particularly unfortunate in a case where it is common ground there was a canteen culture of bad mouthing. It is perhaps easy to see how the frustration of the applicant about not having access to clear criteria and the processes led to the situation unfortunately in which the investigation has been left to the Employment Tribunal."
"… A reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work."
The legislation
"1 Racial discrimination
(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if –
(a) on racial grounds he treats that the other less favourably than he treats or would treat other persons;"
"54A Burden of proof: employment tribunals
…
(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation tht the respondent –
(a) has committed such an act of discrimination or harassment against the complainant, or
the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act."
"65 Help for aggrieved persons in obtaining information etc
(1) With a view to helping a person ("the person aggrieved") who considers he may have been discriminated against [or subjected to harassment] in contravention of this Act to decide whether to institute proceedings and, if he does so, to formulate and present his case in the most effective manner, the Secretary of State shall by order prescribe –
(a) forms by which the person aggrieved may question the respondent on his reasons for doing any relevant act, or on any other matter which is or may be relevant; and(b) forms by which the respondent may if he so wishes reply to any questions.
(2) Where the person aggrieved questions the respondent (whether in accordance with an order under subsection (1) or not) –
(a) the question, and any help by the respondent (whether in accordance with such an order or not) shall, subject to the following provisions of this section, be admissible as evidence in the proceedings;(b) if it appears to the court or tribunal that the respondent deliberately, and without reasonable excuse, omitted to reply within a reasonable period or, where the question relates to discrimination on grounds of race or ethnic or national origins, or to harassment, the period of eight weeks beginning with the day on which the question was served on him or that his reply is evasive or equivocal, the court or tribunal may draw any inference from that fact it considers it just and equitable to draw, including an inference that he committed an unlawful act."
Regulations were made by the Secretary of State: Race Relations (Questions and Replies) Order 1977. The short point of construction is: May inferences be drawn from replies given by a Respondent in a form not prescribed by the Order?
The Claimant's case
The Respondent's case
The legal principles
"6 It is apparent that, particularly given the reversal of the burden of proof, it is essential that, if the tribunal satisfies itself that there has been on the face, of it unfavourable treatment,, it has effectively only reached halfway; it must set out clearly its conclusions as to the nature and extent of such unfavourable treatment, and it must then fully and carefully consider, having thus identified the conduct which requires explaining, what the explanations of the employer were, and why, if such be the case, such explanations provide no answer..
The President also cited the judgment of Elias J in Law Society v Bahl [2004] IRLR 640@paragraph 100 when he said:
"Where the alleged discriminator acts unreasonably then a tribunal will want to know why he has acted in that way. If he gives a non-discriminatory explanation, which the tribunal considers to be honestly given, then that is likely to be a full answer to any discrimination claim. It need not be, because it is possible that he is subconsciously influenced by unlawful discriminatory considerations. But again, there should be proper evidence from which such an inference can be drawn…"
Conversely, if an employer acts reasonably, the reason is likely to be non-discriminatory – see paragraph 99 of Elias J's judgment.
"I am unable to accept that, in all the circumstances where deviations from ordinary practice occur where there are differences of treatment which emerge in the selection process, the employer must invariably give an explanation and the tribunal must find it a satisfactory explanation if it is to fail to infer that the decision was reached in breach of the Act. In my judgment there must be a nexus between the facts relied on and the discrimination complained of before such an explanation can be required. Some conduct of employers will require specific explanation; other conduct or events can be dealt with by way of the general finding which the tribunal made. It is a matter for analysing the facts of the particular case and is a question of fact and degree
The facts that a tribunal should examine are those relevant to the issues before it."
"10 The general structure required for a discrimination finding by an employment tribunal is now clear from the decisions of Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332, as supplemented by the decisions in University of Huddersfield v Wolff [2004] IRLR 534 EAT/0596/02, and Chamberlin Solicitors v Emokpae [2004] IRLR 592 EAT/0989/03 (at paragraphs 32 to 40). The tribunal must set out the relevant facts, draw its inferences if appropriate and then conclude that there is a prima facie case of unfavourable treatment by, reference to those facts (identifying it), and then look to the respondent for an explanation to rebut the prima facie case. The employment tribunal must plainly make quite clear what the unfavourable treatment is which is prima facie discriminatory, so that the respondent can I understand what it is that it has to explain. It then , explains, if it can. Such explanations, if any, must be fully onsidered and:
(i) It may be either obviously or after analysis, that there is no explanation.(ii) There may be an explanation which only confirms the existence of discrimination.(iii) There may be a non-discriminatory explanation which redounds to its discredit - eg it always behaves this badly to everyone.(iv) There may be a non-discriminatory explanation which is wholly admirable.
But the employment tribunal must address the respondent's response.
11 The nature of such addressing of the explanations is set in the context of the words of Peter Gibson LJ in Chapman v Simon [1994] IRLR 124 at paragraph 41, namely that in discrimination cases it is 'appropriate that ... [employment] tribunals should perform their duties with meticulous care'. In the EAT case of Port v Royal Mail and others EAT/0045/99 Holland J required 'an analytical recitation of such explanations as are advanced by the respondents for those [arguable] instances [of sexual discrimination]'. The nature of the requirement is made clear by the Court of Appeal in Anya v University of Oxford [2001] IRLR 377. At 379 (paragraph 7) Sedley LJ cites Neil} LJ in King v Great Britain-China Centre [1991] IRLR 513 at 518:
'In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds.'
12 He continued in his own words at 380:
'Were racial grounds an effective cause of the difference in treatment? What explanation of the less favourable treatment is given by the respondent? In answer to each of those questions the tribunal must make findings of primary fact, either on the basis of direct (or positive) evidence or by inference from circumstantial evidence.'
13 And at 380 'The respondent has to respond to the introduction of those items. He may dispute some of them as factually incorrect. He may seek to introduce other evidence to negative any possible inferences of racial grounds eg non-racial explanations for his acts and decisions'.
14 In Wolff, I said as follows:
'26. [The tribunal] must therefore arrive at a conclusion that there is a prima facie case that the respondent has treated the applicant less favourably on the grounds of sex. Once it has done that, then it passes to consider the respondent's explanations; it must, if it has not already done so, make findings of fact, or draw inferences from findings of fact, for the purposes of concluding whether any of the explanations put forward by the respondent satisfies them, the burden being on the respondent to show that the less favourable treatment was not on the grounds of sex. ...
31. ...The reasons ...would ordinarily then be set out as to why the tribunal rejects the explanations and justifications put forward by the employer and concludes that the burden of proof has thus not been satisfactorily complied with. and thus that the only answer is that which was prima facie already found to exist when it transferred the burden under s.63A [of the 1975 Act] ...
34. ...We are satisfied that the failures by the tribunal to consider, set out and draw conclusions from the material facts related both to the establishment of the prima facie case, under s.63A, which was necessary even before the onus passed, and, even assuming it did correctly apply s.63A, to the consideration of the respondent's explanations after the passage of the onus.'
15 Elias J sets out the position in The Law Society u Bahl (2003] IRLR 640;
'100. ...Where the alleged discriminator acts unreasonably then a tribunal will want to know why he has acted in that way. If he gives a non-discriminatory explanation which the tribunal considers to be honestly given, then that is likely to be a full answer to any discrimination claim" It need not be, because it is possible that he is subconsciously influenced by unlawful discriminatory considerations. But again, there should be proper evidence from which such an inference can be drawn ...
116. ...The failure [to construct a hypothetical comparator] ...may raise doubts as to whether the tribunal has properly considered all potentially relevant explanations when identifying whether or not unlawful discrimination exists. It may raise a concern that the tribunal has failed properly to consider the possible lawful non-discriminatory reasons for the conduct in issue.'
16 It is apparent that, particularly given the reversal of the burden of proof, it is essential that, if the tribunal satisfies itself that there has been on the face of it unfavourable treatment, it has effectively only reached halfway; it must set out clearly its conclusions as to the nature and extent of such unfavourable treatment, and it must then fully and carefully consider, having thus identified the conduct which requires explaining, what the explanations of the employer were, and why, if such be the case, such explanations provide no answer."
The reason for transfer
Perversity
"Due to your service profile and length of the service in Hereford City as a Sergeant and your reputation of being a good competent operational officer you were selected and duly transferred."
The burden of proof
(a) The Applicant was transferred to Ross
(b) The Applicant is Indian by descent
(c) The Respondent selected an officer for transfer to Ross from a pool of eleven officers
(d) All other officers in the selection pool were white
(e) The Applicant did not have clear access to the criteria for selection and the selection process was not transparent
(f) The Applicant believed that white officers such as Sgt Powell could have been selected.
Inferences
"(6) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s.74(2)(b) of the Sex Discrimination Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within s.74(2) of the Sex Discrimination Act: see Hinks v Riva Systems EAT/501/96."
Disposal
(1) Proportionality must always be a relevant consideration.
(2) The passage of time.
(3) Whether there is bias or partiality.
(4) Whether there is a totally flawed decision by reason of a complete mishandling.
(5) Whether there is a real risk, on the Tribunal having a second bite, that it will, in human terms, wish to say "I told you so".
(6) The Tribunal's professionalism.
We have decided not to remit the whole of this case for a fresh hearing. We do not consider it is proportionate to do so. It must be borne in mind that the Claimant raised a number of discrete claims including complaints as to the discriminatory allocation of compassionate leave and the operation of the Respondent's stop and search policy, and a claim of victimisation under Section 2. The Tribunal found against him on all of these and yet there is now no appeal. The simple inference to be drawn from that is that neither party has lost confidence in the Employment Tribunal to make decisions in this case on the merits. We have been able to give a clear direction to the Tribunal as to the correct approach to the burden of proof based on Sinclair Roche, which was not available to it at the time. Since it appears not to have had a submission directly made to it under Section 65, it can now consider the oral evidence of the Respondent's witnesses as against the answers given in the Notice of Appearance and the Further and Better Particulars as these are now within scope of Section 65.
(1) In the light of our finding that the Claimant has established a prima facie case (paragraphs 39-40 above) and the burden transfers to the Respondent, it is for the Tribunal to consider whether it has proved by its explanations that it did not discriminate.
(2) In the light of our finding that the documents referred to in paragraph 51 of the Employment Tribunal's reasons disclose matters relied on by the Respondent in addition to the "outside Hereford" condition, a finding should be made on what the criteria relied upon by the Respondent were.
(3) The Tribunal should make a finding on what precisely was the "outside Hereford" condition.
(4) The Tribunal should consider whether it is appropriate to draw inferences, and if so what, from the Respondent's Notice of Appearance and Further and Better Particulars and Mr Rutter's letter, pursuant to Section 65.
The way forward