United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR T CROXFORD (of Counsel) Instructed By: Metropolitan Police Service Solicitors Department New Scotland Yard Broadway London SW1H 0BG
For the Respondent	MR D OUDKERK (of Counsel) Instructed By: Messrs Russell Jones & Walker Solicitors Swinton House 324 Gray's Inn Road London WC1X 8DH


 


JUDGE J R REID QC:

Preliminary

1. This is an appeal against a decision of an Employment Tribunal held at London North on 18-21 January and 8 February 2000, the decision being sent to the parties on 28 March 2000. By the decision the Tribunal held "the Applicant's complaint of victimisation is made out." It was assumed before the Employment Appeal Tribunal that this finding was intended to indicate that the complaint had been made out against both the Appellants, though it is not possible to discern from the reasons given why (if this was the intention of the Tribunal) it held that the complaint had been made out against Mr Snaith.
2. Ms McGinley's claim was that she had been victimised contrary to section 4 of the Sex Discrimination Act 1975 whilst she was a serving police officer in that an attempt was made by the Property Services Division ("the PSD") of the Metropolitan Police to evict her from the police quarters which she occupied. It was alleged that this was done because she had previously made a claim of sex discrimination, a protected act.

The facts

3. In 1992 Ms McGinley brought a claim for sex discrimination against the Commissioner arising out of the actions of a Sgt White. This claim was settled before a hearing. Sgt White then brought a claim of sex discrimination against the Commissioner arising out of the investigation of Ms McGinley's complaint. The Commissioner chose to resist that claim and, amid considerable publicity, lost. A substantial award of compensation was paid to Sgt White.
4. Ms McGinley was granted a two-year contract to occupy a Metropolitan Police Service "married quarters" flat in Pondfield House from September 1994. The ostensible purpose of the provision of flats was to provide residential accommodation to serving officers who either did not own their own property or who owned property outside the London area. She did not fulfil the strict criteria for grant of such accommodation because she already owned a flat within the permitted area. She still owns this flat.
5. The Metropolitan Police took a decision to reduce the married quarters estate to 2000 properties. There followed from this a general tightening of the entitlement rules to Police flats and a stricter enforcement of those rules. By spring 1996 at the latest Ms McGinley was aware that if she did not sell her own flat, her entitlement to the Police flat would cease in September 1996. In fact nothing was done in relation to her flat until June 1997, when the PSD notified Ms McGinley of a review of her entitlement which would require consideration of her personal circumstances. It appears she did not reply to the letter of notification. In July 1997, Ms McGinley was informed that in the absence of a reply "it will be necessary to seriously consider your future occupation of your married quarter with a view to the possible termination of your tenancy agreement."
6. Ms McGinley replied to this letter saying that she was off work due to stress-related illness. In that letter, Ms McGinley stated that she had been unable to sell her own property because of her ill health and also that she intended to leave Pondfield House. As a result of this letter an extension of one year was granted to enable Ms McGinley to achieve this. Mr Snaith's evidence was that he informed Ms McGinley of this but the Tribunal made no finding on this point.
7. In April 1998, Ms McGinley was asked to provide details of her individual circumstances for a further review. Ms McGinley simply responded that she was still sick and that she could neither move nor make any decisions as to her living circumstances. Mr Snaith recommended a further delay to await further developments.
8. Ms McGinley's circumstances were considered at a meeting of the PSD on l July 1998 at which the decision was taken to hand the file over to the Housing Recovery Officer (Joan Osborne) for her to recover vacant possession. The meeting was chaired by Mr Willis, Mr Snaith's line manager. Ms McGinley was informed of this decision on l3 July 1998. The Appellants contended that the recommendation for a further delay by Mr Snaith had been rejected at the PSD meeting on 1 July 1998. The Tribunal refer to it having been rejected prior to that meeting.
9. Joan Osborne sent a letter on l7 August 1998 asking for Ms McGinley to arrange a mutually convenient time for serving the usual three month notice to terminate her tenancy, but as a result of the intervention of the Assistant Commissioner no notice to terminate her tenancy was in fact served until after Ms McGinley retired from the Police Service in September 1999.

The comparators

10. The Appellants produced evidence relating to four other officers who they asserted were comparators. The Tribunal's findings in relation to them was as follows:

"Mr Snaith recommended to his superior Mr Willis that PC A should be given a final breathing space to sell his property. Mr Willis noted PC A had not made clear his position and he felt that a 12 month extension would be too long and that PC A should give some details of his position. It appeared from Mr Snaith's evidence that PC A eventually had an extension to August 1998 but that what had happened was that he had financial problems and that his wife was pregnant and that he was seeking a transfer to the Cheshire Constabulary. He had only a two year entitlement to occupy the property and occupied it in lieu of a housing allowance. In relation to the second case police constable B which begins at page 153 of the bundle of documents the evidence was that the Respondents had terminated his tenancy and managed his property until his transfer to the Northumbria Constabulary. Police Constable B had transferred from the Northumbria Constabulary to the Metropolitan Police but had a house in Newcastle which he could not sell because of a negative equity situation. Police Constable C whose papers begin at page 179 of the bundle was a case where an extension was not recommended because the police constable had made no arrangements to sell his property. In another case which was mentioned police constable D had had to be given police accommodation because it was discovered that he was having difficulty because he and his wife and children lived in a street where there was a house occupied by a known criminal one of whose associates police constable D had arrested. His wife and children were being harassed as a result of this."

Each of these officers had been in occupation of police flats when not meeting the criteria for occupation. In each case their circumstances were investigated. In these cases the process followed was practically the same as the process followed in the case of Ms McGinley. The only notable difference was that the other officers were all called for interview while Ms McGinley, being on long-term sick leave, was not. In three cases there were said to be financial difficulties and in one there was a problem over harassment of the officer's family, as a result of an arrest he had made, by relatives of the criminal. In essence each of the four, like Ms McGinley was putting forward personal circumstances as a reason for being allowed to remain in police accommodation when they had no entitlement to do so.

The Tribunal's decision

11. The Tribunal decided that the PSD did have "knowledge of the Applicant's particular situation mainly that she had brought proceedings for sex discrimination against the First Respondents". Contrary to what the Tribunal appears to have thought it is clear from the witness statements which we have seen that this was never in issue. The Tribunal formed an unfavourable view of Mr Snaith as a witness, regarding him as evasive. This appears to have stemmed largely from the erroneous view of the Tribunal that Mr Snaith was asserting he did not know about Ms McGinley's sex discrimination claim. They expressed no views as to the credibility of the other persons present at the meeting of 1 July 1998 at which the decision to hand over the file to Ms Osborne was taken. The Tribunal took the view that a press cutting about the resolution of Sgt White's claim which was on the Ms McGinley's file could not have been there merely because someone at PSD happened upon it. The Tribunal went on to reject any comparison between the four comparators offered by the Appellants and Ms McGinley on the ground that none of them had made a sex discrimination complaint against the Police and were off sick because of stress. The Tribunal pointed out that the proposed comparators had financial problems or required extensions on compassionate grounds. The Tribunal then expressed the view that Ms McGinley "seems to have been singled out for attention in respect of her occupation of this married quarter" and that "Suddenly … she was singled out to be considered for possession of the property by the writing of a series of letters indicating that her tenancy will be terminated…." The Tribunal concluded that the only inference it could draw was that pressure was put upon her because of the previous claim for sex discrimination and that consequently the claim for discrimination had been made out. The Tribunal decided Zafar v Glasgow City Council [1997] ICR 120 was distinguishable because it was a case of direct racial discrimination and not victimization and then went on to hold that because of the distress that Ms McGinley had suffered as a result of the actions against her to recover possession she had suffered detriment, but "what exactly that detriment might be is a matter for consideration at a hearing on remedies".

Grounds of appeal

12. The Appellants' submissions can be categorized under four heads.

(1) Perversity

12.1 The finding as to Mr Snaith's credibility underlay the entirety of the decision. On the basis of that finding, the Tribunal inferred that there was less favourable treatment and inferred that such treatment was by reason of the protected act. It relied upon the express assumption that the individuals at the PSD meeting of 1 July 1998 asserted that they were unaware of the protected act. This was not the case. The press cutting in question stated Ms McGinley alleged she too suffered discrimination and that her claim for damages was settled by Scotland Yard before it reached a Tribunal. The statements of three of the witnesses present at the meeting on 1 July 1998 expressly referred to this matter. In addition all four were questioned closely in examination in chief and cross-examination and questioning by the Tribunal as to their level of knowledge. All admitted to knowledge of the claim. For the Tribunal then to base their decision on a denial of knowledge was, it was submitted, perverse. It met the test as stated by May LJ in Hereford and Worcester County Council v Neale [1986] IRLR 168 at 174, CA, to the effect that when an employment tribunal has not erred in law, neither the EAT nor the Court of Appeal should disturb its decision unless one can say in effect: "My goodness, that was certainly wrong".

12.2 Without that decision as to the credibility of Mr Snaith, the Tribunal would not have determined the case as they did. The finding underpinned the entirety of the decision. There was no express decision as to the credibility or otherwise of the other three present at the meeting of 1 July 1998. Their evidence was to the effect that there were sound reasons for the decision that were unrelated to Ms McGinley's earlier complaint of discrimination.

12.3 The Tribunal failed to make any or any proper finding as to Mr Snaith's attempt to obtain an extension of Ms McGinley's occupation of the flat in July 1998. Such an attempt by him was the strongest possible evidence that he did not seek to treat Ms McGinley less favourably. Whilst this is referred to in the decision, it was stated that the rejection of his recommendation occurred prior to the case conference rather than at the case conference. There was no factual or evidential basis for such a finding. It was not put to any of the Appellants' witnesses in examination. Further, even on this basis, the Tribunal erred in failing to treat this as a relevant factor when considering whether to draw adverse inferences against Mr Snaith. This attempt by Mr Snaith was inconsistent with a finding of victimisation against him.

(2) Comparators

12.4 The Tribunal erred in law in holding that the comparators in a victimisation case were not true comparators by reason of the fact that they had not brought a claim of sex discrimination. The logic of this approach is that there can never be a proper comparator in a victimisation case because all such comparators would have undertaken a protected act. The Tribunal ought to have held that the true comparator in a case of this nature was a person who sought an extension to her tenancy after the end of her housing entitlement but had not brought a discrimination claim against the police. The Appellants relied on Chief Constable of West Yorkshire Police v Khan (2001) UKHL 48, Brown v TNT Express Worldwide [2001] 1CR 182 at 189F-192F and London Borough of Hounslow v Bhatt, EAT/337/99 at paragraphs 13 to 16.

12.5 In any event, the Tribunal failed to consider or give proper weight to the evidence found by them in relation to the comparators. Ms McGinley's case was that, in effect, the enforcement action taken against her would not have been taken against someone in her situation who had made no complaint of discrimination. Ms McGinley was ill, beyond her entitlement and owned another flat in her possession. Thus, on the Appellants' case, demonstrating that others who were beyond their entitlements but had compassionate circumstances were treated in the same way as Ms McGinley was of the utmost relevance.

12.6. The Tribunal wrongly distinguished Zafar v Glasgow City Council [1997] ICR 120 on the basis that it was a case concerning discrimination rather than victimisation. The Appellants relied on Nagarajan v London Regional Transport [2000] 1 AC 501 in this regard. As Lord Steyn made clear in Nagarajan at 521 H-522C, parallel interpretations are to be given to the victimisation and direct discrimination provisions. Lord Nicholls' speech is to similar effect: see 512D-H. This provides fundamental procedural safeguards in that it ensures that tribunals do not leap to conclusions without expressed, logical bases for such conclusions. The explicit rejection of Zafar was not only incorrect as a matter of law but also demonstrated that the approach taken by the Tribunal was incorrect. In particular, the Tribunal failed to make sufficient findings of primary fact to reach the conclusions made by it. In this case, given that the finding of less favourable treatment was also by way of inference, this applies to both less favourable treatment and the reason for any such treatment. The second aspect of Zafar that was not applied by the Tribunal was the injunction not automatically to make inferences of discrimination in circumstances where the reasons put forward by the respondent have been rejected. This was particularly important in a case such as this where the tribunal have formed a negative view of the Appellants' main witness. In such circumstances, it was crucial that the Tribunal consider carefully the alternative explanations for what took place. In this case, the tribunal formed a negative view as to Mr Snaith's credibility, misdirected themselves as to comparators and then drew an automatic inference as prohibited by Zafar: the Tribunal said: "…as the comparators are not in our view true comparators and the Applicant seems to have been singled out that the only inference with which we can draw is an inference that that pressure was put upon her because of the previous claim of sex discrimination which she had made".

(3) Presumptions

12.7 The Tribunal presumed, without explanation, reasons or justification, that the individuals within the PSD would desire to victimise an individual because of a complaint of discrimination or that they would have a subconscious tendency to do so. Where there is no obvious reason or latent tendency to discriminate, a finding of discrimination ought to be that much less likely. The two features of a protected act that would normally give rise to such an inference are (a) personal animosity against a complainant by the subject of the complaint or his colleagues and (b) a desire not to have someone who "rocks the boat" within the organisation. Neither of these factors applied to the PSD or its decision-makers. Indeed, the individual decision-makers asserted their sympathy for the victims of discrimination and harassment and there was no apparent reason for them to have alternative motivations whether conscious or subconscious. Of the four decision makers at the meeting on 1 July, the most senior person (Mr Willis) gave evidence of his role in ensuring equal property rights for homosexuals within the Police Service; Mr Snaith sought a contrary decision to that of which Ms McGinley complained; and the remaining two were both female and gave unchallenged evidence as to their sympathy with victims of harassment and discrimination. The person about whom the Applicant had complained of harassment was unknown to the individuals within the PSD.

12.8 The Tribunal failed to provide reasons that meet the test of comprehensibility set out in Meek v City of Birmingham District Council [1987] IRLR 250.

(4) Position of Mr Snaith

12.9 The Tribunal failed to provide any reasons or express findings as to the liability of Mr Snaith. Given the paragraph headed Decision, it was assumed that Mr Snaith was also liable, but the basis for his liability was wholly unclear. Whilst the Tribunal made a negative finding as to the credibility of Mr Snaith, that conclusion did not provide an answer to whether Mr Snaith himself is liable for victimisation. The Tribunal appears to have accepted that Mr Snaith sought to prevent steps being taken to evict Ms McGinley and in those circumstances it is impossible properly to find him liable.

Ms McGinley's case

13. In response counsel for Ms McGinley made the following submissions.

(1) Credibility

13.1 The tribunal's findings of fact as to credibility made after seeing and hearing from the witnesses cannot be interfered with upon appeal. The tribunal had the benefit of hearing the cross-examination of Mr. Snaith and was entitled to take the view that the general tenor of his evidence was "evasive". The tribunal's careful approach to the issue of credibility accorded with the guidance of the Court of Appeal in Anya v University of Oxford and Another [2001] ICR 847 CA (decided after the tribunal decision was promulgated). In Anya the Court of Appeal held that the employment tribunal erred in directing itself that if an employer behaves unreasonably towards a black employee, it is not to be inferred, without more, that the reason for this is attributable to the employee's colour in that the employer might very well behave in a similarly unreasonable fashion to a white employee. Such hostility may justify an inference of racial bias if there is nothing else to explain it. Whether there is an explanation will depend not on a theoretical possibility that the employer behaves equally badly to employees of all races but on evidence that he does.

13.2. The employment tribunal was entitled to have regard to the striking fact that a copy of a press article dealing with the case subsequently brought by the person against whom the Applicant had made allegations of sex discrimination in which the Applicant's case was referred was placed on the Applicant's property file. It is clear that the press cutting was not something that should or could have been on the file. The tribunal were entitled to take into account the absence of a proper explanation for this and the generally evasive tenor of Mr. Snaith's evidence.

(2) Comparators

13.3. The tribunal did not err in holding that the comparators suggested by the respondent were not true comparators. Reference was made to the judgment of Sedley L.J. in Anya in para 14 (at 856G-857B):

"The industrial tribunal in paragraph 5 of its reasons directed itself correctly in law about this, with one arguable exception: it concluded the paragraph with this remark:

'If an employer behaves unreasonably towards a black employee, it is not to be inferred, without more, that the reason for this is attributable to the employee's colour; the employer might very well behave in a similarly unreasonable fashion to a white employee.'

As Neill LJ pointed out in King, such hostility may justify an inference of racial bias if there is nothing else to explain it: whether there is such an explanation as the industrial tribunal posit here will depend not on a theoretical possibility that the employer behaves equally badly to employees of all races, but on evidence that he does."

13.4 The tribunal correctly directed itself at paragraph 10 when it said:

"We then have to consider whether the Applicant was treated less favourably than other person in the same or similar position might have been treated and this leads us to an examination of those person put forward as comparators by the first Respondents. It is necessary of course in the case of victimisation to look at the question of comparators because Section 4 requires that a person should be treated less favourably than others person have been treated... We did not find that the comparators to be of assistance. Three of the comparators has financial difficulties of various kinds and the case of the fourth had to be considered on compassionate and other grounds because of harassment of himself, his wife and family by known criminals."

It was not suggested by the Respondent that the Applicant had financial difficulties or that she had been harassed by criminals and the tribunal was entitled to find, as it did, that these cases were not comparable. The Applicant expressly addressed the Appellants' comparators in her closing submissions and the tribunal, which had the benefit of hearing the detailed evidence, was entitled to hold they were not true comparators.

13.5. In considering whether or not the Applicant was victimised the employment tribunal correctly directed itself according to the guidance given by the House of Lords in Nagarajan. When the tribunal dealt with Zafar it was addressing the question of whether or not the Applicant suffered a detriment rather than whether or not she was victimised. The Tribunal's reference to Zafar disclosed no error of law.

13.6 The employment tribunal has produced a carefully reasoned decision. Its factual conclusions were sufficient to tell the parties why they had won or lost and the challenge based on Meek was ill-founded.

The law

14. This case is not affected by the addition of section 63A to the Sex Discrimination Act 1975 as from 12 October 2001: see regulation 2(2) of the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001.
15. In order for a person to establish discrimination by victimization that person (the victim) must establish that the discriminator has treated the victim less favourably than in those circumstances the discriminator treats or would treat other persons and does so by reason that the victim has done or intends to do or intends to do a protected act (or is suspected of having done or intending to do such an act): see section 4(1) of the Sex Discrimination Act 1975. By section 6(2) "It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her … (b) by…subjecting her to any other detriment."
16. In deciding whether the victim has been treated less favourably it is necessary to determine who are the appropriate comparators. In the Khan case (a race discrimination case, but the same principles apply to a sex discrimination case) Lord Nicholls said at paras 25 to 27:

"25. As appears from my summary of the authorities, different views have emerged on the correct way to identify the 'others' or the comparators or control group, as they are usually known. One approach is that, to continue with my example, if an employee is dismissed the control group comprises the other employees. The complainant was less favourably treated because he was dismissed and they were not. There may be good reasons for this difference in treatment but, on this approach, that is a matter to be taken into account at the third stage when considering why the employer afforded the employee less favourable treatment. This was the approach adopted in Aziz v Trinity Street Taxis Ltd [1989] QB 463. It was the approach adopted at all levels in the present case. Sergeant Khan was treated less favourably than other employees, because references are normally provided on request and Sergeant Khan was refused a reference. It was also the approach adopted in Brown v TNT Express Worldwide (UK) Ltd [2001] ICR 182.

26. The other approach is that when considering whether a complainant was treated less favourably there should be factored into the comparison features which make the situation of the complainant and the control group fairly comparable. The control group should be limited to employees who have not done the protected act but whose circumstances, in the material respects, are fairly comparable. This approach was adopted by the Employment Appeal Tribunal in Kirby v Manpower Services Commission [1980] 1 WLR 725 and by the Court of Appeal in Nagarajan v London Regional Transport [1998] IRLR 73, 76, para 13 (this point was not the subject of the subsequent appeal to your Lordships House [2001] 1 AC 501).

27. There are arguments in favour of both approaches. On the whole see no sufficient reason for departing from the former approach, adopted by Slade LJ in the Aziz case~ [1989] QB 463. p483. The statute is to be regarded as calling for a simple comparison between the treatment afforded to the complainant who has done a protected act and the treatment which was or would be afforded to other employees who have not done the protected act."

17. Similarly Lord Mackay of Clashfern said at para 39:

"In my view, in order to ascertain who are the "other persons" with whom comparison should be made in any particular case one must identify the circumstances relevant for the purposes of any provision of the Act in which the discrimination is said to have occurred and then consider how other persons in those circumstances have been treated."

18. In our judgment it follows from those statements of the law that the proper comparators in the present case are other police officers who were beyond their strict entitlement to remain in police accommodation but for personal reasons were seeking to do so.
19. In deciding whether the difference in treatment was "by reason that" the victim has done a protected act it is necessary to see what was the reason for the discriminator acting as he did. This, as Lord Nicholls pointed out in Khan at para 29 is a subjective test. The reason why a person acted as he did is a question of fact. If there is a difference of treatment, then the Tribunal must look to the reason given for the difference. The key question is "Why did the victim receive less favourable treatment?" If no reason, or no convincing reason, is given, then the Tribunal is entitled to draw such inferences as it thinks proper from the primary facts which it has found. The Tribunal may legitimately infer from the fact that a victim has been treated differently and that the victim has done a protected act that the difference in treatment arises from the protected act.

Conclusions

20. The Tribunal in the present case did not have the advantage of the decision of the House of Lords in Khan, which was decided only on 11 October 2001. Without the benefit of that authority the Tribunal fell into error. It wrongly held that the Appellants' comparators were not true comparators. It held "the differences are that one has brought a claim of sex discrimination and is thereafter off sick because of stress while the others have financial problems they are finding difficult to sort out or need their cases considered on compassionate grounds." What the Tribunal should have done was look at the comparators to see if, like the Claimant they were officers seeking on personal grounds to retain possession of police accommodation when they did not satisfy the appropriate criteria for doing so. If it had done so, it would have seen that all four officers were proper comparators. It would also have seen that the course adopted in each case was markedly similar. The only difference was that Ms McGinley was not called to interview. In our view the only proper finding if the Tribunal had directed itself properly in law would have been that there was no material difference in treatment. Ms McGinley was not treated less favourably than the comparators. That alone is sufficient to determine the case against Ms McGinley.
21. Beyond that, the decision that Mr Snaith was guilty of discrimination was perverse. Whatever the Tribunal may have thought of his evidence, the fact was that he recommended that Ms McGinley should be allowed to remain in her flat. The Tribunal did not make clear the basis upon which it found Mr Snaith was guilty of victimization. There was, in fact, no evidence on which the Tribunal could properly find that he victimised Ms McGinley.
22. So far as the decision of victimisation against the Commissioner is concerned, it appears to rely heavily on a finding that the persons present at the meeting of the PSD on 1 July were asserting that they were unaware of Ms McGinley's discrimination claim. That finding cannot be sustained. The Tribunal went on make findings that Ms McGinley had been "suddenly" "singled out". Those findings were not supported by the evidence. The evidence showed that her case was being regularly reviewed. It could not properly be said either that the PSD acted "suddenly" or that she was "singled out". If it had not been for the error of law in rejecting the comparators it would have been necessary to send the case back to be re-heard before a differently constituted tribunal. However, given the error of law, that course is not necessary.
23. Accordingly the appeal will be allowed and Ms McGinley's complaint of victimisation will be dismissed.