United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR CHRISTOPHER KENNEDY (of Counsel) Instructed by: Mr W B Porter Greater Manchester Police Authority Salford Civic Centre Chorley Road Swinton Salford M27 4AE


 


JUDGE PETER CLARK: The respondent to this appeal, Andrew Hope, was at the relevant times a Police Sergeant in the Great Manchester Police.

He presented two Originating Applications to the Industrial Tribunal alleging sex and race discrimination and victimisation arising out of internal disciplinary proceedings brought against him. The individual complaints, some 16 in all, are summarised in a schedule which is before us.

Those complaints came before an Industrial Tribunal sitting at Manchester over seven days between 20th March - 1st July 1997. All complaints were dismissed, save one, for the extended reasons given with a decision promulgated on 22nd July 1997. ["The liability decision"]. It is necessary only, for the purposes of this appeal, to deal with the one successful complaint ["the material complaint"].

The material complaint

On 28th March 1995 Sergeant Hope was interviewed by Chief Inspector Butters and Sergeant Jones concerning, inter alia, a brief sexual relationship with a 17 year old Asian female YTS trainee. During the course of the interview Mr Butters put this suggestion to Sergeant Hope:

"Let me finish, it may viewed by, you know, it is obviously an Asian population, it may be viewed that this conduct wasn't the conduct of a sergeant who was taking advantage of one of their girls and it may have caused racial implications and ramifications would you .."

That suggestion is recorded at paragraph 45 of the tribunal's reasons in the form of following finding:

"45. On 28 March 1995 the applicant was interviewed by Chief Inspector Butters and Sergeant Jones about the allegations in the investigation. He had with him a Police Federation Representative, Police Constable Millington to assist him. That interview was taped and we have a full transcript at pages 102/1 - 102/160 of the bundle R1. It is agreed that the contents of the transcript accurately reflect the interview. The interview lasted a long time. We accept that the total was approximately 2 hours 30 minutes as recorded by Chief Inspector Butters. In the course of the interview we find Mr Butters put to the applicant that his conduct in forming a brief sexual relationship with Miss S could have jeopardised the Police Force's relations with her community if members of the community got to know of it."

In relation to that matter the tribunal concluded at paragraphs 74-75 that the suggestion made by Mr Butters amounted to less favourable treatment of the respondent on the grounds of his race and sex, and that such treatment was not de minimis. Accordingly the complaint of race and sex discrimination succeeded to that limited extent.

The Appeal

In the original appeal, by a Notice dated 22nd August 1997, the appellants challenged the tribunal's finding of unlawful discrimination in relation to the material complaint. The first point taken was that the tribunal erred in the comparison which it made for the purposes of ss.1(1)(a) and 3(4) of the Sex Discrimination Act 1975. We think that that point is arguable and should proceed to a full appeal hearing.

Secondly, there is a challenge to the tribunal's finding on the basis that even if unlawful discrimination was made out the respondent was not entitled to any compensation for injury to his feelings on the grounds of his conduct as found by the tribunal.

Although that issue was canvassed before and determined by the tribunal in the liability decision, it was again raised without success at a remedies hearing held on 16th October 1997. On that occasion the tribunal awarded £750 compensation for injury to feelings, together with interest, for the extended reasons promulgated with the tribunal's second decision on 28th October 1997. ["The remedies decision"].

At the preliminary hearing held before us on 1st December 1997 we canvassed with Mr Kennedy whether, for completeness, there should be a formal appeal against the remedies decision, and adjourned the preliminary hearing for him to consider his position, with the direction that any further Notice of Appeal should be lodged within seven days.

By a further Notice of Appeal dated 5th December 1997 the appellants now challenge the remedies decision.

We are satisfied that the further argument, that the respondent was not entitled to any compensation on the tribunal's findings of fact, ought also to go to a full appeal hearing.

Accordingly we direct that both Notices of Appeal be consolidated under the number: EAT/1131/97, and we shall allow the consolidated appeals to go forward to a full appeal hearing. Category B. Time: Case to be listed not before 11.30 a.m. for the remainder of the day. Skeleton arguments to be exchanged and copies lodged with the Employment Appeal Tribunal not less than 14 days before the date fixed for the substantive appeal hearing.