Appeal No. UKEAT/0436/06/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 December 2006

Before
HIS HONOUR JUDGE PETER CLARK
MR NORMAN
MR P A L PARKER CBE

1) CHIEF CONSTABLE OF NORFOLK	APPELLANTS
2) CHIEF SUPERINTENDENT CHERINGTON

MS C D ARTHURTON	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR J M ARNOLD
(of Counsel)
Instructed by:
Norfolk Constabulary Legal Services
Operation & Communication Centre
Falconers Chase
Wymondham
Norfolk NR18 0WW	
For the Respondent	MR R MORETTO
(of Counsel)
Messrs Russell Jones & Walker
Swinton House
324 Gray’s Inn Road
London WC1X 8DH	

SUMMARY
Sex Discrimination – Victimisation 
One good ground of appeal: victimisation; consideration of Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 and St Helens Metropolitan Borough Council v Derbyshire [2005] IRLR 801; appeal allowed in that respect. Remaining three grounds disclose no error of law.  

HIS HONOUR JUDGE PETER CLARK

1.	This case has been proceeding in the Norwich Employment Tribunal. The parties are Ms Christina Arthurton, Claimant, and 1) The Chief Constable of Norfolk, and 2) Chief Superintendent Cherington, Respondents. This is an appeal by the Respondents against certain findings adverse to them contained in the Judgment of a Tribunal Chaired by Mr J Goodrich, promulgated with reasons on 21 June 2006. That Judgment followed a seven day hearing and four days’ deliberations by the Tribunal in private. The Tribunal heard three combined claims brought by the Claimant, complaining of direct sex discrimination and victimisation, contrary to the Sex Discrimination Act 1975 (SDA), against the first Respondent and, in part, against the Second Respondent.

Background

2.	The Claimant commenced her police career with the Metropolitan Police in 1978. In 1982 she transferred to the Norfolk Constabulary. She was promoted to Sergeant in 1985. In 2000 she was posted to the Domestic Violence Unit in Norwich. In January 2003 she was appointed Project Manager for a research project relating to domestic violence and was engaged in that project full-time. In June 2003 the Second Respondent became Area Commander of the Norwich Central Police area. It was common ground that the Claimant had very little supervision in her project management and that she was poorly managed by her superiors, in particular DCI Gent and DI Graveling. 

3.	On 10 August 2004 the Second Respondent met with the Claimant and DCI Gent and DS Newcomb. He had received a report on the project prepared by the Claimant. He was unimpressed by that report. He thought it was poorly written and presented no proper business case. After the Second Respondent made his views known to the Claimant at that meeting an exchange of emails took place between them, the first from the Claimant dated 11 August 2004 and the Second Respondent’s reply dated 13 August. The Second Respondent’s email contained personal criticism of the Claimant. It was copied to five senior officers: DCC Port; DS Newcomb; DCI Gent; CI Francis, and Superintendent Myhill. 

4.	The Tribunal found that the personal criticism contained in the Second Respondent’s email amounted to humiliating criticism of her and was, to a considerable extent, unfair, particularly as the Second Respondent failed to acknowledge that fault lay with those responsible for managing the Claimant. The Tribunal noted that, following the 10 August meeting, the Second Respondent spoke to DCI Gent, a male officer, on a one-to-one basis. Insofar as that meeting involved criticism of DCI Gent’s management of the project, and the evidence of the Second Respondent and DCI Gent differed as to whether the former criticised the latter, it was done on a one-to-one basis, not disseminated as in the case of the Second Respondent’s email to the Claimant.

5.	The Claimant involved her Police Federation representative, Mr Reeve, to act on her behalf. A meeting was arranged between them and the Second Respondent on 9 September 2004. Further email exchanges followed. The Claimant was not satisfied. On 6 October she wrote to the Second Respondent saying that she believed he had discriminated against her; the first protected act. She then made a formal written grievance to ACC Taylor dated 11 October 2004; the second protected act. That grievance (the first grievance) raised a number of complaints. Material to this appeal were her complaints that the Second Respondent’s copying of his email of 13 August to the five named officers amounted to less favourable treatment than a man would have received. 

6.	Dissatisfied with ACC Taylor’s resolution of her grievance, the matter was referred to DCC Spence of the Cambridge Force. She reported in April 2005. Meanwhile the Claimant had raised two further grievances which were finally referred to Mr Ken Taylor of the Norfolk Police Authority. His undated report was sent to the Claimant with a covering letter from acting ACC Wilkins dated 9 September 2005. 

The claims

7.	The Claimant presented her three claims to the Tribunal on respectively 1 November 2004, 4 April 2005 and 8 December 2005. The second and third claims were brought against the First Respondent only, the first against both Respondents. In their careful and thorough reasons the Tribunal identified the issues raised in each claim at paragraph 7, setting out the Claimant’s claims and the Respondent’s response. Material to this appeal are the following: 
1) First claim, copying the Second Respondent’s email of 13 August 2004 to the five named officers; 
2) Second claim, a) posting the Claimant to Bowthorpe, which she described as a punishment posting after she had raised her first grievance, b) failing to make payment to her for overtime worked; 
3) Third claim, failing to apologise to her as recommended by Mr Turner in his report. 

8.	Each of those four claims, with one other, was upheld by the Tribunal as amounting to acts of unlawful sex discrimination or victimisation. Each of those four findings is now under appeal. We shall consider each in further detail when considering those grounds of appeal separately. 

The Appeal

Dealing with each of the four challenges to the Tribunal’s findings in this appeal separately: 

1. Copying the email of 13 August 2004. 

9.	We have earlier set out the factual background to this complaint as found by the Tribunal. Their conclusions are contained in paragraphs 144 to 150 of their reasons. Their task was (a) to identify an actual or hypothetical male comparator, (b) to determine whether the Claimant had proved facts from which the Tribunal could conclude in the absence of an adequate explanation that the Second Respondent, and through him the First Respondent, had treated her less favourably than that comparator on the grounds of her sex and thereby caused her to suffer a detriment, and (c) if so, the burden of proof shifted to the Respondents to provide an explanation for her treatment which was in no sense whatsoever on the ground of her sex: SDA section 63A, as explained by the Court of Appeal in Igen Ltd v Wong [2005] IRLR 258. 

10.	The Tribunal considered various actual comparators relied on by the Claimant, including DCI Gent. However, the Tribunal found that the relevant circumstances of these individuals were not the same or not materially different to those of the Claimant: SDA section 5(3). They therefore approached the matter on the basis of a hypothetical male comparator, drawing on the evidence as to the circumstances of the inappropriate actual comparators put forward, particularly DCI Gent. The Tribunal was satisfied that the Claimant had discharged the burden resting on her at the so-called first stage of the Igen test. 

11.	Interestingly, and it may prove to be prescient depending on the outcome of three conjoined appeals presently before the Court of Appeal on the question as to whether a strict two-stage approach is always necessary, particularly where the Respondent provides a satisfactory non-discriminatory explanation, the Tribunal recognised (paragraph 147) that the stages given in the guidance in Igen Ltd v Wong in certain circumstances tend to merge. However, the challenge here is not to the Tribunal finding that the Claimant had passed the stage one hurdle; rather it is directed to the Tribunal’s rejection of the Second Respondent’s explanation. 

12.	That last observation requires qualification. The Tribunal did accept the Respondent’s explanation for the less favourable treatment of the Claimant in part. They accepted that the five senior officers copied into the Second Respondent’s email each needed to be kept informed as to the progress of the project, and that the Second Respondent had cause to be concerned that it had overrun, and that the Claimant’s report in his view was open to criticism. What they did not accept was his explanation for circulating his personal criticisms of the Claimant to the five named recipients. They found those criticisms to be patronising and, comparing the Second Respondent’s treatment of DCI Gent on a one-to-one basis, they concluded that such personal criticism would not have been circulated in the case of a hypothetical male comparator. 

13.	In challenging that conclusion Mr Arnold invokes the approach of Gibson LJ, giving the Judgment of the Court of Appeal in Bahl v The Law Society [2204] IRLR 799, paragraphs 126-7. There His Lordship considers the “reason why” issue under the law as it stood before section 63A SDA was introduced. Although the Tribunal in that case had rejected some of the explanations given by Mr Sayer of the Respondent for his treatment of the Claimant, the Tribunal did not explain how they jumped from that rejection to the conclusion that race and sex were subconscious motivating considerations in the treatment meted out to Ms Bahl in the absence of any background evidence to support that conclusion. 

14.	Mr Arnold submits that the same criticism may properly be made of the Tribunal’s conclusions in this case, summarised at paragraph 150 of their reasons. We disagree. First we note that the law has been materially altered by section 63A since Bahl was decided. Once the Respondent’s explanation has been rejected at stage two the Claimant succeeds. It is now no longer necessary to ask the further question as to whether less favourable treatment on grounds of sex may be inferred: see in the Employment Appeal Tribunal Dresdner Kleinwort Wasserstein Ltd v Adebayo [2005] IRLR 515, paragraph 37, Cox J, and Laing v Manchester City Council [2006] IRLR 748, paragraph 53, Elias P. Secondly this Tribunal did draw on the surrounding evidence, particularly the treatment by the Second Respondent of DCI Gent in rejecting in part the Second Respondent’s explanation. 

15.	Further points are taken by Mr Arnold. He contends that, having rejected DCI Gent as an actual comparator, the Tribunal then used him for the purpose of the comparator exercise: cf. Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 (HL). Again we disagree. In our view the Tribunal was careful to construct a hypothetical comparator by reference to actual factual evidence. We can see no error of law in that approach. Nor do we see any error in drawing on the treatment of the Second Respondent by ACC Wilkins when he, the Second Respondent, was criticised in Ms Spence’s report on the Claimant’s first grievance, in building up that picture of how a hypothetical male comparator would have been treated in these circumstances. Finally we are unable to see any force in the criticism of the Tribunal’s finding that the Second Respondent was not consciously, but subconsciously, influenced by the Claimant’s gender when he circulated his email of 13 August 2004. In short, having considered the various ways in which this first finding is attacked, we are unable to identify any error of law such as to vitiate that finding. 

2. Transfer to Bowthorpe

16.	On 8 October 2004, three days before the Claimant presented her first grievance to ACC Taylor, she met with DI Francis to discuss where she would work after her period of secondment on the project ended. The Claimant expressed interest at that meeting in what has been called the Crime Prevention Post. The Tribunal considered the Force’s policy on posting officers, and also the policy on grievances. The latter contained the warning that transferring a member of staff who has raised a grievance against their will could be considered an act of victimisation. The Claimant did not move into the Crime Prevention Post. Instead Chief Superintendent Myhill decided to post her to Bowthorpe, an unpopular area since it did not attract a special priority payment for which the adjoining police area qualified. That payment represented additional salary of about £700 per annum. 

17.	The Tribunal found that the Crime Prevention Post was eventually filled by Police Sergeant Horobin. He was not required, under the Force’s posting policy, to apply for the post. The Claimant was also interested in a vacant position of ASBO Co-ordinator. This was eventually given to Police Sergeant McGivern, without the post having been advertised. The Tribunal found that the Respondent’s explanation for selecting Sergeant McGivern for that post, and not informing the Claimant that it was vacant, differed during the course of the case. In their conclusions (paragraphs 154 to 161) the Tribunal compared the treatment of the Claimant with that of Sergeants Horobin, McGivern and Bailey, who had been informed of the Crime Reduction post and had declined it (all male officers), and found using those three male officers’ circumstances to inform them as to how a hypothetical male comparator would be treated, that the Claimant had satisfied the first stage of the Igen test. 

18.	They then considered the “confusing collection of reasons” for the Respondent’s decision made in this respect and rejected the explanation. Accordingly her claim of direct sex discrimination in this respect succeeded. The challenge to this finding is based on the perversity ground. It is now well established that such appeals will only rarely succeed and in closely defined circumstances: Yeboah v Crofton [2002] IRLR 634. Quite simply we are not satisfied that the First Respondent begins to make out that case. The Tribunal’s reasons, we think, speak for themselves. 

3. Overtime payment

19.	Similarly we reject this further ground of appeal. The Tribunal compared the First Respondent’s failure to meet the Claimant’s overtime claim with that of a male officer, PC Boulter. Both had put in claims for overtime without providing evidence of extra hours worked and in the specified form. PC Boulter received a payment of £3000 plus several months’ time off in lieu. The Tribunal found the Respondent’s various explanations for the difference in treatment contradictory and, in one instance, simply wrong: reasons paragraph 165. They concluded that the failure to make overtime payments to the Claimant was an act of victimisation.

20.	Mr Arnold’s principal submission is that there was an inconsistency between the Tribunal’s finding that the Claimant had not quantified her overtime claim and that there was good reason therefore for not paying her and the finding of victimisation in the sense that she did not receive overtime payment. That, we think, entirely misses the point. The Tribunal thought that there was good reason not to pay both the Claimant and PC Boulter: reasons paragraph 167. It was the difference in treatment (one was paid, the other was not) which founded the conclusion as to victimisation. In these circumstances we reject this third ground of appeal. 

4. An apology

21.	Here, we think, lies the only point of law raised in this appeal. In his undated report provided to the Claimant by acting ACC Wilkins, under cover of his letter dated 9 September 2005, Mr Turner made certain recommendations as to an apology. He said this:
“Finally I believe that CA (the Claimant) is owed an unreserved apology by her immediate superior officers for the way in which her grievance 2 was handled. Norfolk Constabulary as a whole should also apologise for its lack of management oversight which has contributed directly to her present medical condition.”

In his covering letter acting ACC Wilkins said:
“Mr Turner has also recommended that you should receive a number of apologies, both from individuals in the Force and from the Force as a whole. He has not, however, identified such individuals by name. He stated that “the form these apologies should take should involve personal contact by senior managers with the officers who became caught up in this grievance and the appropriate representative of the Police Federation”. I do not consider it would be appropriate for either the Respondents or their witnesses in the ongoing ET proceedings to meet you and your representative to discuss issues which are the subject of those proceedings.” 

22.	The failure to give an apology was raised by the Claimant as an act of victimisation in her third claim, presented on 8 December 2005. The Tribunal was referred to and considered the leading cases of Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 (HL) and St Helens Metropolitan Borough Council v Derbyshire & Others [2005] IRLR 801 (CA). From those cases the following principles emerge when considering a complaint of victimisation under here, section 4 SDA, in circumstances where existing discrimination proceedings are in train:
1. Where a Claimant, who has done a protected act, is less favourably treated than a suitable comparator who has not done a protected act, and thereby suffers a detriment, the question is whether that treatment was afforded by reason that she had done the protected act.
2. In Khan the House of Lords, reversing the determinations of the Court of Appeal, EAT and Employment Tribunal below, held that the reason why P S Khan was not given a reference was not because he had brought discrimination proceedings against his employer but because his employer needed to preserve his position in the outstanding proceedings. A “but for” test was not appropriate; that is, but for the proceedings, the Claimant would have been given a reference.
3. The approach of Bingham LJ in Cornelius v University College of Swansea [1987] IRLR 141 (CA) was explained and approved by the House: see per Lord Nicholls, paragraphs 30-31. His Lordship drew a distinction between a failure to act in giving a reference due to the existence of the pending proceedings and the Claimant’s conduct in bringing the proceedings. Section 4(1)(a) SDA provides, so far as is material: 
“A person, the discriminator, discriminates against another person, the person victimised, in any circumstances relevant… if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has (a) brought proceedings against the discriminator… under this Act.”
4. A Respondent who acts honestly and reasonably in taking steps to preserve his position in the outstanding proceedings will not be guilty of victimisation under the Act.
5. That approach was applied by the Court of Appeal in the St Helens case. The majority, Mummery LJ dissenting, held that there the employer had taken honest and reasonable steps to protect its position in equal pay proceedings brought by the Claimants, when writing to them individually, pointing out the consequences to employment generally in the authority, of where continuing rather than compromising those claims. 

23.	In the present case the Tribunal asked themselves, at paragraph 191 of the reasons, whether the First Respondent’s decision not to make an apology was an honest and reasonable step to protect its position in the litigation. Their answer is contained in paragraph 193; we should set it out in full:
“We conclude that, whilst the Respondent’s legal representatives were preparing their defences to the first and second claims, not giving an apology would have been an honest and reasonable step in the proceedings. By the time, however, that the third claim was issued, and the issues in the litigation had become clearer, we are not satisfied that it was. The Claimant had, by then, been off work sick for a long time and she and Mr Reeve have made it clear that the resolution of her grievances was important to her. Giving an apology would have been likely to have given her some satisfaction. Included in the bundle of documents for the Tribunal were the minutes of a meeting which took place on 21 June 2005 between the Second Respondent and ACC Wilkins, in which the Second Respondent accepted that the copying of his email to five officers “had not been a good idea”. The Second Respondent accepted readily at the Tribunal that the Claimant had not been well managed. Mr Turner, whilst criticising various officers of the First Respondent, made it clear that he did not believe that there had been sex discrimination against the Claimant. It would have been easy, therefore, for the Respondents to have given the apologies that were recommended, whilst making it clear that, by doing so, they were not accepting that she had been subjected to unlawful sex discrimination.”

24.	We believe that that reasoning requires close analysis in this appeal. There is no doubt that the Claimant was less favourably treated than her chosen comparator, CI Coggle, who also submitted a grievance which led to the recommendation of an apology, which he duly received. He had not then done a protected act. Equally it is clear that, as a result of that treatment, she suffered a detriment; the question is the “by reason that” question considered in Khan and St Helens. 

25.	It is apparent from the first sentence of paragraph 193 that, whilst the Respondents’ legal representatives were preparing their defences to the first and second claims, the decision not to give an apology was an honest and reasonable step in those proceedings. We note that the form ET3 in response to the second claim was lodged on 18 May 2005 and later amended on 3 October 2005. Mr Wilkins wrote to the Claimant with Mr Turner’s report on 9 September and the third claim was lodged by the Claimant on 8 December 2005. What then changed to render an honest and reasonable step in the proceedings; that is the first and second claims, as Mr Moretto accepts, dishonest and unreasonable? 

26.	We have to say that on this aspect of their decision only we find the Tribunal’s reasoning wholly unconvincing. Looking at paragraph 193 we have the following observations: 
(1) The fact that the issues in those proceedings had become clearer by the time that the third claim was issued, 8 December, seems to us to confirm the reasonableness of the Respondents’ position, not undermine it. What was clear was that all of the Claimant’s claims were disputed. An apology, as recommended by Mr Turner, could damage their defence.
(2) The fact that the Claimant had been off sick for a long time and that an apology would have ameliorated the position goes to the detriment which she suffered, not the “by reason that” question.
(3) Whilst the First Respondent accepted that the Claimant had not been well managed, that did not meet Mr Turner’s requirement that there be an unreserved apology for the way in which the second, including the third, grievance had been handled; one of the disputed issues in the second claim.
(4) Mr Turner found that the Claimant’s treatment was not motivated by reason of deliberate and premeditated acts of gender discrimination, victimisation and bullying. That of course leaves open the question of subconscious discrimination. Further we do not understand how an unreserved apology could be subject to the qualification that it was not accepted by the First Respondent that the Claimant had been subjected to unlawful sex discrimination. 

27.	In short, notwithstanding Mr Moretto’s valiant attempts to defend this part of the Tribunal’s reasoning, he has not persuaded us that it can stand. In our judgment the initial finding of the Tribunal in paragraph 193 is in no way altered by the subsequent reasoning. It leads ineluctably to the conclusion that what may be called the Khan defence succeeds in this case. Unlike the St Helens case, no further findings by the Tribunal are necessary. 

Disposal

28.	 It follows that this appeal succeeds in part. We dismiss the first three grounds of appeal. The remaining ground succeeds. We shall set aside the finding of victimisation by the First Respondent’s failure to apologise to the Claimant, as recommended by Mr Turner; a complaint raised in the third claim and identified at paragraph 7.20.4 of the Tribunal’s reasons. The case will now return to the Goodrich Tribunal for a remedies hearing in respect of the remaining heads of complaint upheld by the Tribunal at the liability stage.