United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T CROXFORD (Of Counsel) Instructed by Metropolitan Police Service Solicitor's Dept New Scotland Yard Broadway London SW1H OBG


 


MR RECORDER BURKE QC

1. This is the Preliminary Hearing of an Appeal by the Commissioner of the Metropolitan Police and one of his civilian employees, Mr Snaith, against the decision of the Employment Tribunal sitting at London (North), chaired by Mr Flint, promulgated on 28 March 2000 and supported by Extended Reasons, by which the Tribunal decided that the present Respondent, the then Applicant, Miss McGinley had been subjected to victimisation contrary to section 4 of the Sex Discrimination Act 1975 by either or both of the Appellants. The reason why we put it that way will emerge in a moment.
2. The subject matter of the dispute was the manner in which Miss McGinley had been treated in relation to the bringing to an end of her occupation of police-owned residential accommodation. Miss McGinley had brought a claim of sex discrimination against the first Appellant in 1992, based on alleged harassment by a sergeant. The claim was settled. The sergeant then himself brought a sex discrimination claim based on the handling of the investigation. That claim succeeded. These matters apparently attracted some publicity. In the present proceedings, Miss McGinley claimed that steps taken to remove her from her accommodation were taken because of her earlier discrimination complaint, in other words because of a protected act.
3. The response of the employers and of Mr Snaith, as one of the employers' agents involved in the handling of the accommodation matter, was that there was a wholly adequate explanation as to the way in which Miss McGinley had been treated which had nothing to do with her previous sex discrimination claim.
4. We are going to allow this Appeal to go through to a full hearing of the basis on the grounds set out in the Notice of Appeal. There are many such grounds and we do not propose, because we are allowing this Appeal to proceed, to go through them. We have considered whether some of them should be eliminated but, having regard to the criticisms which we think can arguably be made of this Tribunal's decision, we regard it as right that all of those grounds should be open for argument, although it is plain that some of them are stronger than others.
5. In short, there appear to us to be the following areas, which give rise to arguable grounds of appeal. Firstly, the Tribunal in paragraph 9 of its decision set out their views as to the credibility of Mr Snaith and 3 other employees who together made up the case conference at which it was decided what should be done in relation to Miss McGinley's accommodation. The Tribunal found that Mr Snaith and the others present with him had denied that they had any knowledge of the existence of the protected Act.
6. However Mr Croxford tells us, supported by reference to the final submissions which were put before the Tribunal in writing, that each of those 4 persons had accepted during the course of the hearing that they did have knowledge of that protected Act; and certainly in the skeleton submission put in on behalf of the Commissioner and Mr Snaith, they appear so to accept. If that is so, then it is plainly arguable that the Tribunal approached the vital issue of the credibility of Mr Snaith and his colleagues on a false basis. We say that that is a vital issue, because central to this case, it may be thought, was the question as to whether or not the explanation offered by Mr Snaith and his colleagues as to their treatment of Miss McGinley was one which the Tribunal accepted. If the Tribunal assessed their credibility on a mistaken basis, then that erroneous assessment necessarily may arguably have coloured the rest of the Tribunal's approach to the decision which the Tribunal had to make.
7. Secondly, the Notice of Appeal and Mr Croxford's skeleton, supported by his arguments today, point out to us that the employers had put forward 4 comparators and that those comparators had been rejected by the Tribunal in paragraph 10 of its decision for reasons which appear to include the absence of any protected Act in the history of those 4 comparators. Certainly it is arguable that that absence forms part of the reasoning of the Tribunal in its approach to those comparators.
8. Mr Croxford submits that that approach was in error. Alternatively he submits that the decision because of that approach was perverse because the necessary task which faced the Tribunal was comparing what had happened to Miss McGinley not with other persons who had protected Acts in their history but other persons who did not have protected Acts in their history. It seems to us to be properly arguable that, in dealing with the comparators, the Tribunal has either erred in law or has reached a decision which is perverse.
9. The Tribunal then went on to decide, because it regarded those comparators as inappropriate, that the Applicant was singled out for attention and was the subject of victimisation. Again it seems to us to be arguable that the Tribunal, in reaching that conclusion, arguably leapt erroneously from the decision that the comparators were inappropriate to a decision that therefore the Applicant had been singled out. One reason why, if that was a mistake, they may have been caused to make it is that the Tribunal, again arguably erroneously, concluded that the principles established in the case of Zafar v Glasgow City Council [1997] ICR 120 did not apply to this case. And thus, the Tribunal may (it will be for others to decide whether they did or not) have failed to consider whether there was an explanation which was a satisfactory explanation from the Commissioner and from Mr Snaith which should have led them to the conclusion that an inference of victimisation should not be drawn.
10. Finally, the decision does not expressly say whether the Tribunal had concluded that Mr Snaith was or was not guilty of victimisation as opposed to the Commissioner through the agency of other employees who were involved in the decision to deal with Miss McGinley's case as they did. The facts, it is said appear to suggest that Mr Snaith had acted more favourably to Miss McGinley than the others. We are not for a moment suggesting that was necessarily true. But it was incumbent upon the Tribunal to consider the facts relating to Mr Snaith separately from the facts relating to the Commissioner; and it is arguable that that they failed to do.
11. For those brief reasons we think that this is a case which should go for a full hearing on all the grounds that are set out in the Notice of Appeal.