United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0406/09/DM

UKEAT/0320/10/DM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 16 March 2011

Judgment handed down on 18 April 2011

Before

HIS HONOUR JUDGE REID QC

MR J D EVANS CBE

MR J R RIVERS CBE

THE COMMISSIONER OF POLICE OF THE METROPOLIS APPELLANT

MRS A K GREWAL RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

SUMMARY

RACE DISCRIMINATION - Burden of proof

PRACTICE AND PROCEDURE - Review

The Claimant alleged race and religious discrimination, harassment on racial and religious grounds and victimisation against the Respondent in respect of her treatment on a training course.  The ET dismissed all but one of her claims of direct race discrimination but held in relation to one matter the onus of proof had been transferred to the Respondent and he had not discharged it.  In addition the ET made a finding of unlawful race and religious discrimination by victimisation in relation to another complaint.  On review the ET set aside the finding of victimisation on the basis that the claim had never been made as a claim in victimisation. The Respondent appealed against the finding of race discrimination and the Claimant against the decision on review.  Held: the ET’s judgment was not Meek-compliant but in any event the onus of proof had not been transferred to the Respondent and the review decision was correct.  Respondent’s appeal allowed and Claimant’s appeal dismissed.

HIS HONOUR JUDGE REID QC

1.            There are two appeals in this case. In the first, the Commissioner of Police of the Metropolis appeals against a judgment in favour of the Claimant Mrs Grewal of an Employment Tribunal held at Reading from 27 April to 1 May 2009, the decision being sent to the parties on 2 June 2009.  In the second appeal Mrs Grewal appeals against the decision on review of that judgment, following a hearing on 28 May 2010, the decision being sent to the parties on 16 July 2010.

2.            The original hearing was chaired by Employment Judge Thacker (the Tribunal), but by the time of the review hearing he had resigned and the review hearing was chaired by Employment Judge Lewis (the Review Tribunal).  He sat with the same lay members as had participated in the original hearing before employment Judge Thacker.

3.            In this judgment we shall refer to the parties as they were before the Employment Tribunal: Mrs Grewal as the Claimant and the Commissioner as the Respondent.

4.            In her claim the Claimant made a large number of complaints against the Respondent alleging unlawful race discrimination and religious discrimination, harassment on racial grounds, harassment on religious grounds, and discrimination by way of victimisation, during the course of her training as a police constable.  The complaints were set out at paragraph 43(a) to (q) of her Details of Complaint.  The Tribunal dismissed the great majority of her complaints, but made two findings in her favour. The first was that she was subject to unlawful race discrimination in that she was given negative feedback and was over-supervised by PC Rigby in relation to her to her Officer Safety Training (OST), and the second that she was subject to unlawful racial and religious discrimination by way of victimisation in that at a meeting on 18 March 2008 PC Rigby indicated that other students laughed at the Claimant.

5.            On the review hearing, the Review Tribunal varied the judgment of the Tribunal by deleting the finding that the Claimant had been subject to unlawful racial and religious discrimination by way of victimisation in that PC Rigby on 18 March 2008 indicated that other students laughed at the Claimant.  This was on the basis that the claim of victimisation had never been pleaded, despite the formulation and re-formulation by the Claimant of her many factual complaints and that the evidentiary basis for the claim of victimisation, namely as to the knowledge of PC Rigby of the protected act relied on, had not been fully canvassed in evidence at the Tribunal and so was unfair and prejudiced the rights of the Respondent and of PC Rigby.

6.            The Respondent’s appeal relates to the finding that Mrs Grewal was subject to unlawful race discrimination in that she was given negative feedback and was over-supervised by PC Rigby in relation to her to her OST.  The Claimant’s appeal relates to the Review Tribunal’s variation of the judgment of the Tribunal by deleting the finding that the Claimant had been subject to unlawful racial and religious discrimination by way of victimisation on 18 March 2008.

7.            The factual background to the case is that Mrs Grewal joined the Metropolitan Police as a comparatively mature recruit.  She is of Indian origin and Sikh religion.  She commenced her officer training at Hendon on 19 November 2007 and on 7 January 2008 moved to Sunbury for further training, where she was in a class with 11 other individuals, one of whom was re-classed for development.  The other individuals knew her from their time at Hendon, but some of her classmates had also previously been together at the Ministry of Defence, and so were more familiar with each other.  The training at Sunbury, which involved a substantial amount of role play, did not go entirely smoothly.  In particular the Claimant was perceived to have difficulties with her OST.  PC Rigby, who was one of the instructors, considered the Claimant’s OST was the poorest of all the trainees and concerns were also raised by her personal tutor, PC Wesolowski.

8.            As a result of the Claimant’s perception of the way in which she was treated she complained to her husband, also a police officer, who in turn took the matter up with Detective Inspector Aberdeen.  Following a meeting at which the Claimant, PC Rigby and DI Aberdeen were present another inspector, Inspector Wheeler, was appointed to deal with her complaints. She met the Claimant on 31 March 2008 and in due course, in accordance with the complaints procedure, there was a meeting on 28 May 2008 with Chief Inspector Dale, who informed her that her complaints were not upheld.  On 10 June 2009 she instituted proceedings in the Employment Tribunal.  She and the other members of the course (other than the one re-classed for development) passed the course.

9.            At paragraph 43(a)-(q) of her Details of Complaint, the Claimant made 17 allegations of less favourable treatment on the grounds or race (which were also alleged to be religious discrimination and race or religious harassment).  Although some of these allegations were stated to be specific instances of discrimination alleged to have taken place on a particular date, others described a type of conduct alleged to have taken place on various unspecified occasions. The allegation on which the Claimant succeeded was in this category: the Claimant “continually receiving negative feedback from Staff Rigby and being overly supervised, for example checking how she’d applied handcuffs”: paragraph 43(f).  The first part of this allegation is the allegation on which the Tribunal found the allegation which is the subject of the Respondent's appeal: it did not make any finding that the specific example in relation to the application of handcuffs was made out.

10.         The parties were at one on the relevant law.  Section 54A of the Race Relations Act 1976 provides as follows in relation to the burden of proof:

11.         The Court of Appeal in Madarassy v Nomura International plc [2007] EWCA Civ 33 reiterating Igen Ltd v Wong [2005] EWCA Civ 142 held that, in order to shift the burden of proof, a claimant must prove facts from which a reasonable Tribunal could properly conclude from all the evidence before it, in the absence of an explanation from the respondent, that the respondent treated the claimant less favourably on (in this case) racial grounds.  It further held that the burden does not shift simply on a claimant establishing a difference in race and a difference in treatment.  These do not, without more, constitute sufficient material from which a Tribunal could conclude that race discrimination occurred.

12.         In dealing with the pleaded allegation of negative comments and excessive supervision, the Tribunal inferred from the views expressed by the various trainers at Sunbury that there must have been more attention to the Claimant and negative feedback.  It observed the Respondent’s case was that the treatment of the students was fair and proportionate, correctly noting that the Respondent did not suggest that the actual amount of feedback was the same.  Based on this and its conclusion that excessive supervision is capable of being less favourable treatment, it found that the burden of proof had shifted to the Respondent.  It then went on (at para 107 of its judgment) to find that the only real possible explanation for giving her more attention was that the Claimant's OST was of a lower standard than the others, though it goes on to appear to suggest that, based on the lack of action by the trainers to improve the Claimant's OST, it does not accept that the trainers genuinely thought that the Claimant’s OST was poor.

13.         The Respondent submitted that although the Employment Tribunal found that there had been negative comments and excessive supervision by PC Rigby, it failed to identify what those negative comments were or what acts constituted excessive supervision and it is impossible to discern these from the judgment.  This, it was said, was more than simply a failure to provide adequate reasons on a central factual issue in the case: it was also a misapplication of the relevant law.  In an area of the law where the drawing of inferences is central, it was essential that the Tribunal set out with clarity the primary facts from which any inference of discrimination is drawn.

14.         A respondent is entitled to know with some degree of particularity what precisely is being said against it so that it can properly meet the case that it being advanced by the claimant but the Tribunal failed properly to consider or make findings on what precisely was being said against the Respondent.  It was incumbent on the Tribunal to make clear findings about PC Rigby’s conduct before seeking an explanation.  In the absence of factual findings as to the allegedly unlawful conduct, it was wrong in law to shift the burden to the Respondent and it was impossible for the Respondent to discern the conduct which it was called on to explain.

15.         The four other pleaded allegations of race discrimination (which could reasonably be described as ‘negative feedback’) were expressly found by the Tribunal not to have been acts of race discrimination. They were: “being shouted at on 17 January 2008 during a role play by [PC] Rigby”:  “being shouted at during role-play on 7 March by PC Rigby when she also ignored the Claimant's question”: “[PC] Packwood's comments to the Claimant during the meeting on 13 March which were designed to discourage her in pursuing a career with the police service”: and “[PC] Rigby's comments during the meeting with Inspector Aberdeen on 18 March about the Claimant's abilities”.  These were all rejected as being race discrimination.  It was important for the Tribunal to make clear the factual basis of a finding that discrimination did take place, but no further negative comments were identified by the Claimant in closing submissions and, although both sides referred to an incident where the Claimant’s handcuffing was checked, the Tribunal did not suggest in the judgment that there was over-supervision in relation to handcuff checking.

16.         The Tribunal misapplied sections 1 and 54A of the RRA by holding that the burden of proof shifted simply as a result of merely different, as opposed to less favourable, treatment. The Respondent had never asserted that each student received exactly the same feedback or even exactly the same amount of feedback: its case was that the treatment of each student was fair and proportionate. The Tribunal drew the conclusion that, as the Respondent did not claim that the treatment was ‘the same’, there was a difference in treatment which is sufficient to shift the burden of proof.  This is wrong.  The Tribunal should have considered whether a person in the same situation to the Claimant would have been treated in the same way.  Simply shifting the burden because others were treated differently ignores the central question of whether those others were treated differently because their need for feedback was different.

17.         The Tribunal considered that ‘excessive supervision’ might shift the burden of proof.  While the Respondent accepted that a finding of ‘excessive supervision’ might shift the burden of proof, there were no factual findings about excessive supervision and the Respondent could not reasonably identify what supervision it had to explain.  The Tribunal simply inferred from the fact that various trainers had negative views about the standard of the Claimant's OST that there was negative feedback and excessive supervision.  This does not follow.

18.         The Tribunal relied on the negative personal views held by the trainers about the Claimant’s OST in order to conclude that there must have been negative feedback but when considering the Respondent’s explanations, it apparently doubted the genuineness of these views, relying on this (it seems) to find that the Respondent had failed to show a non-discriminatory explanation. This approach was contradictory and highlighted the flaws in the Tribunal’s approach to the burden of proof.

19.         The Tribunal failed to give adequate reasons on a central issue in the case, contrary to Meek v City of Birmingham DC [1987] IRLR 250. There was no summary of basic factual conclusions on the allegation of over-supervision and negative feedback.  It was impossible to discern from the judgment what allegedly negative feedback there was, what the alleged acts of over-supervision were or how these were discriminatory. There was anyway no evidence of negative feedback, over-supervision or discriminatory treatment.

The Claimant’s Submissions

20.         The Claimant submitted that the Tribunal's finding that the Claimant was subject to unlawful race discrimination in that (a) she was give negative feedback and (b) was over-supervised by PC Rigby in relation to OST is correct.  The judgment was clear, logical and set out the case reasons for its finding.

21.         So far as the giving of reasons was concerned, r 30(6) of the Employment Tribunal Rules of Procedure 2004 sets out what must be done.  The Tribunal was clearly aware of its duties under the rule 30(6).  The judgment was carefully structured and the Tribunal explained that: “in this case, the fact-finding exercise has been inextricably linked with the task of drawing conclusions.  Accordingly, we have found it easier to first give a general background to the events and only embark upon the more detailed analysis of the facts when we make our findings”.

22.         The allegation of negative feedback and excessive supervision in relation to OST was never formulated in respect of specific words but were to do with the general environment in which the Claimant undertook her training. The Tribunal recorded her case as being that “she received negative feedback from PC Rigby in the course of her training.  In particular, she says that there were critical comments about her OST and that she was excessively supervised.”  In accordance with the Meek principles the Tribunal set out the evidence and where there is a dispute contrast the evidence before coming to a view.  “In our view, the evidence does point… to Mrs Grewal being treated differently in relation to OST compared to the other trainees”.

23.         In considering whether a decision is “Meek-compliant” it is important that the Tribunal are able to demonstrate coherent and intelligible explanations as to why the Respondent's case was rejected: see Roberts v Carlin UKEAT/0183/09/DA, 17 December 2010 at para 58.  This includes an assessment of the evidence, why one account was preferred to another and any necessary references to other evidence, documentary or otherwise.

24.         Having made clear what was being alleged by the Claimant, the Tribunal has considered the question of over-supervision and feedback.  The Tribunal did not merely draw inferences, but relied on direct evidence of conversations from which it is entitled and did make findings of fact and on documentary evidence: in particular the Respondent’s responses to the claim form and questionnaires and “Point 4” of a report dated 9 May 2008, which recorded the fact that concerns about Mrs Grewal's OST were raised by staff and students and refers to it as an area of weakness.  Having carried out its review of the evidence the Tribunal concluded that Mrs Grewal had shown both a difference of treatment and a different in race, there being no other students of Asian origin in her class”.  The Tribunal’s judgment was clear on why it concluded as it did.  Since the Tribunal demonstrated clear reasons for its findings, there could be no argument as to how it applied the burden of proof provisions set out in section 54A of the Act.

25.         The findings of fact supported a conclusion that the Respondent did commit discrimination on grounds of race.  In considering how section 54A of the Act should be applied the Tribunal reminded themselves of the guidance given by the Court of Appeal in Igen v Wong and Madarassy v Nomura International Plc.  The first stage was for the Tribunal to decide whether the Claimant had proved facts from which the Tribunal could conclude, in the absence of an adequate explanation that the Respondent had discriminated against her.  The outcome at that stage of the analysis was dependent on the inferences the Tribunal could draw from the primary facts found by it, on the assumption that there had been no adequate explanation for those facts. That is what the Tribunal did. It did not find the Respondent’s explanation satisfactory. The Tribunal accepted the Claimant had proved facts from which the conclusion could be drawn that she had been treated less favourably than other comparable employees because of her race.  In these circumstances the Tribunal was correct in saying that the burden of proof had shifted to the Respondent to prove that it had not discriminated against the Claimant.

26.         The facts necessary to prove that explanation were in the possession of the Respondent and the Tribunal rightly expected cogent evidence to discharge that burden of proof. The Tribunal was not satisfied by the explanations given, for example stating at para 121: “...whatever the reason, it militates against the suggestion of a valid non-discriminatory explanation.”  Thus the Tribunal applied the provisions of section 54A correctly and properly shifted the burden of proof.

27.         In the field of discrimination law it is particularly important to make findings as to primary fact (Anya v University of Oxford [2001] ICR 847).  As Mummery LJ observed in Madarassy v Nomura International Plc (referring to Chapman v Simon [1994] IRLR 124) in an area of the law where the drawing of inferences is central, it was essential that the Tribunal set out with clarity the primary facts from which any inference of discrimination is drawn.

28.         In the present case the Tribunal dealt in considerable detail with the specific incidents on which the Claimant relied and in each case held that she had not made out a case of race or religious discrimination.  It rejected all of the allegations made of race discrimination in her claim as amended bar one (leaving aside for the moment the victimisation claim which she did not make, even in her claim as amended on the last day of the hearing).  This makes the finding in relation to the generalised complaint of over-supervision and negative feedback the more puzzling.  As the Court of Appeal pointed out in Bahl v Law Society [2004] EWCA 1070 at para 127: “It is all the more surprising that the ET reached its conclusion given that it rejected the greater part of the allegations of discrimination, many more serious than those which it upheld, and yet found discrimination in relation to a few comparatively minor and inconsequential allegations.  It would be astonishing for a person subconsciously motivated by discriminatory considerations only to act in a discriminatory fashion in such a haphazard way. There is no explanation given by the ET for this.”

29.         The Tribunal does not make any findings of fact as to what the “excessive supervision” was. It is of no assistance for the Claimant to assert that there were critical comments about her OST and that she was excessively supervised without some particularity as to what comments were made and what the excessive supervision consisted of.  The specific example of over-supervision which she gave was the allegation in relation to checking handcuffs. The Tribunal makes no finding in relation to this point. She did make specific allegations of discrimination both in her statutory questionnaire under the Race Relations Act and in her claim form, but all these specific allegations were rejected by the Tribunal.

30.         In these circumstances the Respondent is quite entitled to say that the Tribunal has failed to make clear what (if any) were the findings of fact on which it based its conclusions.  In our judgment it cannot be said that the judgment is (to use the phrase coined by Sedley LJ) Meek-compliant.

31.         That however is not the end of the matter.  It is still possible to consider whether the Tribunal was correct in deciding that the onus of proof had shifted to the Respondent.  It was for the Claimant to prove on the balance of probabilities facts from which the Tribunal as a reasonable tribunal could properly conclude from all the evidence before it, in the absence of an adequate explanation, that the Respondent had committed an act or acts of discrimination.  This must depend on the inferences drawn by the Tribunal from the primary facts found.  The burden of proof does not shift to a respondent merely because a claimant establishes a difference in status (in this instance her race) and a difference in treatment. Those bare facts only indicate a possibility of discrimination: see Madarassy v Nomura International Plc.

32.         In the present case the Claimant was taking part in a course.  There is no dispute that she was the only Asian on the course.  During that course she was subject to feedback.  She and the other ten who completed the course managed to pass it.  As the Tribunal found, there was a view amongst the trainers and amongst some of the students that the Claimant’s OST was markedly worse than that of the other students.  Given that view, it is scarcely surprising that she suffered negative feedback and was subject to a substantial amount of supervision, more than other students. The Claimant characterised this as a difference in treatment in that she received more attention than the other members of the group.  The Respondent characterised it as each student receiving appropriate feedback and supervision, necessarily more in the Claimant’s case than in the case of other students.

33.         In our judgment, whichever way it is characterised it is not sufficient to shift the burden of proof.  The difference in race and the difference in treatment (assuming it to be such) are not enough by themselves enough to shift the burden.  The question then is ‘What else is there?’

34.         The nearest the Tribunal gets to it is in para 106 where it identifies the difference in treatment and in race and goes on to say “Furthermore, the excessive supervision is capable of being less favourable treatment.  In our view therefore, applying the burden of proof provisions, we consider that the Commissioner bears the burden of showing the reason for her treatment had nothing whatsoever to do with race.”

35.         The Tribunal however did not make any findings as to what amounted to “excessive supervision”.  There is no finding of any facts which could constitute the giving of excessive supervision.  Nor did the Tribunal make any findings of fact as to the nature of any negative feedback.  The only specific finding was that PC Rigby inappropriately informed the Claimant at their meeting on 18 March 2008 that other students had been laughing at her in the course of OST exercises, a fact which the Tribunal found was not an act of direct discrimination.

36.         There is, in these circumstances, nothing which could constitute the “something more” than the mere difference in race and in treatment (if such there was) required before the burden of proof was shifted to the Respondent.  The Tribunal erred in law in holding that the burden of proof had shifted.

37.         In our judgment the Tribunal’s finding as to the onus of proof was wrong in law.  Since there was no basis upon which it could properly have been said that the Claimant had discharged the onus of proof was on her, the Tribunal should have dismissed her claim for race discrimination.

38.         It follows that the Respondent’s appeal must be allowed and the Claimant’s claim dismissed.

39.         The Claimant by her counsel first submitted that throughout the proceedings a complaint had been pursued by her about the comments at the meeting of 18 March but this complaint was at all times formulated under the label of direct racial discrimination.  The Tribunal, it was said, had sought to establish the agreed issues and counsel (who had not been counsel before the Employment Tribunal) suggested that at this stage counsel then representing the Claimant had agreed that the 18 March comments did in fact constitute racial discrimination by victimisation as opposed to direct racial discrimination.  This was not accepted by counsel for the Respondent who had represented the Respondent below.  We are unable to accept the counsel for the Claimant was correctly instructed on this point since no reference to it appears in the original Tribunal’s decision, no attempt was made when the Claimant further amended her ET1 immediately before closing submissions to plead the comments of 18 March as victimisation and it was evidently not a point run before (or accepted by) the Review Tribunal.

40.         The Claimant submitted that although the facts on which this allegation was based remained the same, the label under which it was pursued was changed from direct discrimination to one of victimisation.  The original Tribunal came to a finding of facts as to the nature of the meeting between DI Aberdeen and PC Rigby, its duration, what it was agreed was said by PC Rigby to the Claimant in the meeting that “other students had been laughing at her in the course of the OST exercises’” (which the Tribunal held was “an inappropriate and potentially undermining comment”). The Tribunal then concluded “.....that the only operative cause of PC Rigby's response was the fact that a complaint of discrimination had been made.”

41.         The Claimant submitted that the original Tribunal was entirely correct to find the evidence supported a victimisation claim and in doing so no breach of natural justice and/or breach of any other principle occurred.  The factual basis of the claim remained the same, and whilst a Tribunal should not find a factual complaint proved when those facts had not been the subject of actual complaint, where the facts had been complained about it was acceptable for the Tribunal to find a different juridical basis for the complaint put forward, always providing that no prejudice was created as a result: see Southern Cross Healthcare v Perkins (UKEAT/0276/09).  As the factual basis of the Claimant's claim had remained constant, the Tribunal did not fall into error by looking at the claim in a different way.  Although the claim of victimisation required a finding of fact that the victimiser had knowledge of the protected act, there was no basis to suggest that this matter was not fully canvassed in evidence and there was ample evidence to show the Tribunal did inquire as to whether the victimiser did have knowledge of the protected act.  There could therefore be no prejudice to the Respondent in allowing this Appeal.

42.         The Respondent submitted that there was no error of law in the Review Tribunal’s judgment and none has been disclosed in the Notice of Appeal.  It was common ground that the allegation that PC Rigby had victimised the Claimant by her comments at the meeting of 18 March 2008 was not raised in the Claim Form, the Claimant's Schedule of Allegations handed up to the Tribunal at the hearing, the application to amend or the Claimant's closing submissions.  In the circumstances, it was submitted that there was no jurisdiction to make a finding of victimisation in relation to this allegation. In Chapman v Simon the Court of Appeal pointed out that the jurisdiction of the Employment Tribunal is limited to complaints which have been made to it.  Although Chapman was somewhat different in that it concerned an allegation which had not been pleaded at all, the principle applied equally where a set of facts is already pleaded under one cause of action. The Tribunal is precluded from applying a new cause of action to those facts, particularly where there are further factual elements which must be proved (not to mention a different legal test, e.g. the burden of proof operated differently).  The Review Tribunal correctly found that it was unjust to permit an allegation to be upheld against the Respondent and PC Rigby without her having been given the opportunity to answer the allegation, including the allegation that she had knowledge of the protected act.

43.         In our judgment the substance of the submissions for the Respondent is correct.  Southern Cross Healthcare v Perkins demonstrates that where the facts complained about have been canvassed fully it is acceptable for an Employment Tribunal to find a different juridical basis for the complaint put forward: see para 53 of the judgment. This, in our view, is subject to the parties having had the opportunity to address the Tribunal on the new proposed juridical basis for the decision.  However different considerations apply where the factual basis differs. As Chapman v Simon makes clear, the Employment Tribunal is limited to deciding the complaints made to it.

44.         In this case the Claimant chose never to put her case in respect of the meeting of 18 March as a claim for victimisation.  Although the original Tribunal held that “In our view [DI Aberdeen] would have informed her [PC Rigby] of the content of his earlier meeting with Mrs Grewal and would have mentioned the issues of race and religion” there was no evidence to support this conclusion. The matter was never investigated. Although DI Aberdeen and PC Rigby both gave evidence before the Tribunal it is not suggested that any questions on this topic were ever put to either of them.  This is not surprising, since a claim for victimisation arising from the disclosure to DI Aberdeen was no part of the Claimant’s case.  The Respondent never had any opportunity to address or deal with this claim.  Furthermore, the Respondent was never given any opportunity to address the legal implications of this new point.

45.         In these circumstances it was plainly right for the Review Tribunal to vary the judgment of the original Tribunal as it did and the Claimant’s appeal must be dismissed.