United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR HARBINDER SINGH LALLY (of Counsel) Instructed by: Messrs Salhan Solicitors 135a Corporation Street Birmingham B4 6PH


 


JUDGE PETER CLARK

1. This is an appeal by Mr Hussain, the Applicant before an Employment Tribunal sitting at Leicester under the chairmanship of Mr J A Threlfell, against so much of that Tribunal's Decision, promulgated with Extended Reasons on 8 May 2001, as found that the Appellant had not been unlawfully discriminated against on grounds of his race by Police Sergeant Cox, for whose acts the Respondent was vicariously responsible.
2. The facts are set out in detail in the Tribunal's Reasons and need not be repeated in full. In short, the Appellant was accepted by the Respondent as a probationer constable in November 1997. He is of Pakistani national origin. Between 26 July 1998 and 14 February 1999 Sergeant Cox was the Appellant's supervisor at the Melton Road Police Station, save for a period of absence, apparently, between 6 September 1998 and 4 January 1999, when Sergeant Cox was assigned to other duties.
3. The Appellant raised a number of complaints about Sergeant Cox's treatment of him, in particular:

(1) he was critical of the Appellant's conduct over his dealing with a crowd which gathered at the time of an arrest of a well-known burglar on 25 August 1998;

(2) he was unhappy with the Appellant's explanation for arriving late on shift on 5 January 1999;

(3) he complained about the Appellant taking time off to attend a medical appointment for an eye problem on 12 January;

(4) on 13 January he was sarcastic to the Appellant, whom he thought was trying to avoid foot patrol;

(5) on 24 January he was critical of the Appellant's failure to attend an emergency call because his radio was not tuned to the right frequency.

4. The Appellant contended that he was being less favourably treated on grounds of his race. The Tribunal assessed both witnesses, the Appellant and Sergeant Cox with some care. For the reasons set out at paragraph 17 of their Decision Reasons they preferred, where it arose, the account given by Sergeant Cox to that of the Appellant.
5. The Tribunal also received evidence, particularly from PC Hannis, as to Sergeant Cox's attitude to Asian people generally. For example, PC Hannis spoke of an occasion when Sergeant Cox had doubted the value of cash said to have been stolen from Asian occupied property. Further, that Sergeant Cox had told him that he did not trust some Asian police officers.
6. Asked about that, the Tribunal related, at paragraph 35 of their reasons, Sergeant Cox's explanation. He said that his previous supervising officer was an Asian officer who had been suspended and later sent to prison. He contended that he had referred to "one" or "all" Asian officers, not "some". Reading paragraph 35 of the Reasons it does not appear to us that Sergeant Cox gave a clear and convincing explanation for this remark to PC Hannis.
7. As to the burglary of Asian premises, he said that in a number of burglaries the value of property stolen was exaggerated. That was not peculiar to Asian complainants.
8. The Tribunal directed themselves as to the law of direct discrimination by reference to the well-known cases of King -v- Great Britain China Centre [1991] IRLR 513 and Zafar -v- Glasgow City Council [1998] IRLR 36 [House of Lords]. The test, they discerned from the cases is set out at paragraph 48 of their Reasons.

"48. ……The legal position is that it is for the applicant to satisfy us of his case. There are three stages, which we must consider. Firstly it is necessary for us to consider whether the applicant has shown that he has been treated less favourably than a real or a hypothetical person of a different race has been or would be treated in similar circumstances. If the applicant establishes such treatment then we have to look for the explanation for that treatment from the respondent. If the respondent is unable to satisfy us of the reason given we should then consider whether it is an appropriate case to raise an inference that the real reason was the applicant's race or that he had done a protected act. For that purpose we would in particular need to consider any other evidence, not necessarily involving the applicant, which might help us to indicate that the alleged discriminator had a particular view of people from an ethnic minority."

9. Applying that approach, they expressed their conclusions on the Cox discrimination complaint at paragraphs 49 and 50 of the Reasons.

"49. Applying that approach to the present case it is quite clear from our findings of fact that the applicant has failed to satisfy the first of those provisions. The applicant has concentrated on suggesting that he was not treated properly or well by Sergeant Cox and by the respondent generally in the investigation, but has failed to produce evidence to show to us that a person of a different race in a similar situation would have been treated any differently. On the contrary Sgt Cox's attitude to other officers was very similar to the attitude he showed to the applicant. We have not been shown any incident where he has treated another person, who he perceived as having developmental needs, in a different way from the applicant. It is also clear that Sgt Cox's perception of the applicant's deficiency was the same as supervising officers both before and after the time he was involved, none of whom the applicant makes any complaint about. Whilst there was some justification for the applicant in suggesting that he was not treated by Sgt Cox as he should have been that is well short of showing that he was treated differently from a person of a different race.

50. As the applicant has failed to show a difference of treatment by Sgt Cox from the way a similar person of a different ethnic background would have been treated, it is not necessary for us to consider what inferences should be drawn from the three incidents raised about Sgt Cox's attitude to asian people. Sgt Cox has also given an explanation as to why he should have made those comments on each occasion."

It is that approach and those conclusions which are principally attacked in this appeal.

10. Mr Lally submits that the Tribunal was wrong to discount the evidence which it had heard, and the facts which it had found, as to Sergeant Cox's attitude towards Asians in general, and Asian police officers in particular, when deciding whether or not the Appellant had been less favourably treated than an actual or hypothetical comparator.
11. We think that this and the other grounds raised in the Notice of Appeal are fit to go forward to a full hearing with both parties present For that purpose, we direct that the Chairman be requested to provide his notes of the evidence given in cross examination, both by Sergeant Cox and PC Zenka. Should any further evidence be necessary for the purposes of the appeal, then the Respondent has liberty to apply in writing, directed for my attention.
12. It may be following the discussion this morning, that Mr Lally will seek permission to amend his grounds of appeal. If so, then draft amended grounds must be lodged within fourteen days of today, marked for my attention, and I will consider whether or not to grant permission.
13. Finally, there will be an exchange of Skeleton Arguments between the parties not less than fourteen days before the date fixed for the full appeal hearing, copies of those Skeleton Arguments to be lodged with the EAT at the same time. Finally, we direct that the full appeal be listed for four hours, Category B, the parties to notify the Registrar if there is any alteration in that time estimate.