Appeal No. UKEAT/0010/10/DM
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At
the Tribunal
On
9 June 2010
Before
HIS
HONOUR JUDGE PETER CLARK
MR G LEWIS
MR M CLANCY
(1)
THE COMMISSIONER OF POLICE OF THE METROPOLIS
(2) THE METROPOLITAN
POLICE AUTHORITY APPELLANTS
MR
A C NONYELU RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
RACE DISCRIMINATION
Comparison
Detriment
Finding of direct race discrimination. On analysis the act
relied on disclosed no difference in treatment nor detriment suffered by
Claimant.
Appeal allowed and finding set aside.
HIS HONOUR JUDGE PETER CLARK
1.
This is an appeal by (1) the Commissioner of Police of the Metropolis
and (2) the Metropolitan Police Authority, Respondents before the London
(Central) Employment Tribunal against the judgment of a Tribunal chaired by
Employment Judge Lewzey, promulgated with reasons on 19 October 2009
which upheld part of the Claimant’s, Mr Nonyelu, complaint of direct race
discrimination.
The Facts
2.
The Claimant commenced employment with the First Respondent on 13 May 1985. At the relevant time in 2007 he worked as a Security Officer Manager
(SOM) in the Palace of Westminster, where security is provided by a combination
of regular police officers and civilian security officers. As SOM in the pool,
as opposed to the search team, the Claimant managed civilian security officers.
3.
On 8 January 2007 Superintendent Vyse of the Metropolitan
Police Service took up a role concerned with the operational deployment and
management of police officers, security officers and fire officers within the Palace of Westminster. He very soon concluded that there was too much overtime being
worked both by police and security staff. On 26 January 2007 he produced a proposal for minimum staffing levels which would have the effect of
reducing overtime and thus saving wage costs. He introduced that policy on 19 February 2007.
4.
On 14 December 2006 the Respondents had introduced an Equality
Impact Assessment (EIA) policy. Annexed to that policy we see was an EIA Form P570.
Mr Vyse’s evidence to the Employment Tribunal was that he was unaware of that
policy when he prepared his proposal. He acknowledged that he ought to have
been aware of it and thus ought to have completed a Form P570. He did not do
so. However, he had received diversity training in the past, he told the
Employment Tribunal and had carried out an EIA in his head. The Employment
Tribunal appear to have accepted that he did so; in his proposal he records his
opinion that no diversity issues arose. However, at paragraph 42 the
Employment Tribunal say: “He (Mr Vyse) must have been aware that he had an
obligation to consider it (the EIA policy).”
5.
It is not absolutely clear to us from the Tribunal’s reasons whether the
Tribunal rejected his evidence that he was unaware of the actual policy. If
they did, that is the subject of ground 3 of the appeal. In the event,
for reasons which will become clear, we do not find it necessary to rule on
that ground of appeal. The minimum staffing policy led to a reduction in
overtime opportunities across the board. At paragraph 48 the Tribunal say
this:
“As to the reduction of overtime opportunities, the five highest
earners in 2006 were Mr Jaiteh, Mr Rajaratnam, Mr Nonyelu, Ms Long, Mr Wilson
and Mr Cameron.”
Pausing there, Mr Sykes tells us, and this is not in dispute,
that the first four named were black.
“In 2007, they were Mr Jaiteh, Mr Wilson, Mr Rajaratnam, Mr
Nonyelu, Mr Cameron and Ms Long. These figures are taken from page 598
and show a significant drop in overtime in 2007. In relation to the claim of
direct discrimination, the minimum staffing is a detriment but there is nothing
from which we could infer that a hypothetical white SOM would not suffer the
same reduction and indeed Mr Cameron also suffered a reduction as did the black
SOMs. For these reasons it is the unanimous judgment of the Tribunal that the
claim of direct discrimination in relation to the minimum staffing policy
fails.”
The Tribunal Decision
6.
The agreed list of issues arising from the claims of both direct and
indirect race discrimination raised by the Claimant are identified at
paragraph 8 of the Tribunal reasons. The finding of direct discrimination
made by the Tribunal is set out at paragraph (ii) of the judgment in these
terms:
“The claim of direct race discrimination succeeds only in
respect of the failure to undertake an Equality Impact Assessment in respect of
the minimum staffing policy prior to its implementation and the manner of
introduction of the minimum staffing policy on 19 February 2007. All other claims of direct race discrimination fail.”
7.
As a technical aside, the Tribunal do not formally identify which of the
two Respondents is liable for that unlawful discrimination. Mr Edwards submits
that it was the Second Respondent, but it matters not for our purposes.
8.
Focussing on the upheld complaint, the Tribunal correctly refer at
paragraph 38 to sections 1(1)(a) and 4(2)(b) and (c) of the Race
Relations Act 1976 (RRA); direct discrimination on grounds of race.
9.
As to the appropriate comparator, for the purposes of section 3(4)
RRA, the Tribunal rejected Police Sergeants (paragraph 40) and Mr Wilson,
a white SOM in the search rather than pool team (paragraph 41), as actual
comparators and instead settled on a hypothetical comparator that is a white
Caucasian SOM in the pool team who wished to do overtime (paragraph 42).
10.
We see some force in Mr Edwards’ submission that Mr Cameron, a white
Caucasian SOM in the pool team (referred to at paragraph 48) who wanted to
and did do overtime, precisely fitted that hypothetical profile such that he
represented an actual comparator for our purposes. However, the distinction in
ultimately immaterial in the present appeal.
11.
At paragraph 45 the Tribunal found:
“Mr Nonyelu has suffered a detriment in relation to the
introduction of the minimum staffing policy and the failure to undertake the
Equality Impact Assessment. On the evidence, the opportunities for overtime
diminished with a resultant loss of income. In relation to these detriments,
namely the minimum staffing levels and the failure to conduct an Equality
Impact Assessment, there is a situation where the Tribunal is in a position
where it could draw an inference under the Barton guidelines and therefore the
burden moves to the Respondent to demonstrate that they did not commit an act
of race discrimination in relation to these matters.”
12.
We should also set out paragraph 47:
“Appendix J at page 593, which is Mr Jaiteh’s report, refers to
transparency, parity and equality issues in the context of the sergeants’
review. We do not accept Mr Edwards’ submission that Mr Vyse was unaware of
the Equality Impact Assessment. He must have been aware that he had an
obligation to consider it. He told us that he did it in his head and that his
recommendation was that there were no diversity issues. There has been no
adequate explanation for the introduction of the minimum staffing levels and
the failure to do the Equality Impact Assessment, and therefore in relation to
those matters, the claim of direct discrimination must succeed.”
The Appeal
13.
Mr Edwards’ submission is simply this; in the light of the Tribunal’s
findings at paragraph 48 the operation of the minimum staffing policy did
not unlawfully discriminate between black and white SOMs in the pool team. The
failure by Mr Vyse to carry out a paper exercise in Form P570 cannot, by
itself, constitute a detriment. That is common ground before us. Nor can the
mere introduction of the minimum staffing policy without more.
14.
We agree. Therefore, (a) the Claimant suffered no material detriment;
(b) if he did, he was no less favourably treated than the hypothetical white comparator
(or Mr Cameron); and (c) there was no less favourable treatment on racial
grounds. The burden of proof under Igen principles did not pass
to the Respondent.
15.
Having considered Mr Sykes’ response we entirely accept those
submissions. What the Tribunal appears to have done, with respect, is to
elevate the mere fact of Mr Vyse’s failure to complete the Form P570 and then
introduce the minimum staffing policy as amounting to unlawful racial
discrimination; it did not. Upon proper analysis there was no less favourable
treatment of the Claimant.
16.
In his skeleton argument, Mr Sykes submitted (paragraph 7) that the
EIA policy was only for ethnic minority officers, as its preamble states. Upon
that proposition being challenged by Mr Edwards, Mr Sykes very properly
withdrew it. He was right to do so. We have been shown the policy, it
applies, unsurprisingly, to all groups (or “communities” as the policy puts it)
equally; to do otherwise would be to adopt an unlawful policy of positive
discrimination or to adopt the expression used in the United States
“affirmative action”.
17.
Mr Sykes sought, in argument, to rework paragraph 48 of the
Tribunal’s reasons to show that because black SOMs there referred to did more
overtime than the white SOMs, being more flexible, as Mr Vyse accepted in
evidence, the minimum staffing policy might adversely impact on those SOMs including
the Claimant, had a formal EIA been carried out.
18.
In the absence of any cross‑appeal against the findings at
paragraph 48 we cannot accept that submission. Nor do we think that
paragraph 48 is non‑Meek compliant, as Mr Sykes sought
to argue, again without foreshadowing that argument by way of cross‑appeal
or additional grounds for supporting the Tribunal decision.
19.
The meaning, it seems to us, is clear. The minimum staffing policy
impacted across racial groups within the SOM community, thus, either the
detriment of overtime lost opportunity was experienced both by the Claimant and
his comparator and, thus, there was no less favourable treatment on racial
grounds or at all. Or, the failure by Mr Vyse to complete the Form P570 and
then to introduce the minimum staffing policy did not, of itself, constitute a
detriment to the Claimant or, if it did, then the self same detriment was
suffered by the hypothetical comparator constructed by the Tribunal.
Disposal
20.
For these reasons this appeal succeeds. All claims now stand dismissed.
