![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
United Kingdom Employment Appeal Tribunal |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Chief Constable Of Cambridgeshire Constabulary v Mclachlan [2003] UKEAT 0562_02_1402 (14 February 2003) URL: https://www.bailii.org/uk/cases/UKEAT/2003/0562_02_1402.html Cite as: [2003] UKEAT 562_2_1402, [2003] UKEAT 0562_02_1402 |
[New search] [View without highlighting] [Printable RTF version] [Help]
At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE RIMER
MR M CLANCY
MRS J M MATTHIAS
CAMBRIDGESHIRE CONSTABULARY |
APPELLANT |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR A WATERS (of Counsel) Instructed by: Cambridgeshire Constabulary Legal Services Hinchingbrooke Park Huntingdon Cambridgeshire PE29 6NP |
For the Respondent | MR M D BLOOM (Solicitor) Messrs Hegarty & Co Solicitors 48 Broadway Peterborough PE1 1YW |
THE HONOURABLE MR JUSTICE RIMER
"the normal flexibility and perhaps humanity that one would have expected from ordinary employers is not available to a police service that requires orders to be obeyed."
This posed problems with part-timers, particularly those with babies to tend. The Tribunal was told, and apparently found, that the disciplinary requirements in the force were such that its officers are expected to remain in their post if required to do so, even if this means staying on at the end of a shift. Mrs McLachlan's own views were that her primary duty was to her children, and the Tribunal had no doubt that she had made it clear to her police colleagues where her priorities lay. The Tribunal said that this was a fruitful ground for conflict.
" .. the Chief Constable had the evidence in front of him if he wished to make a finding that there was a deliberate disobedience of an order. What he did, in fact, was to reject the explanation that that [Mrs McLachlan] gave. Practically everything that [Mrs McLachlan] said he disbelieved. Again he was entitled so to do. In the end he believed what [Mrs McLachlan] was doing was deliberately delaying so that she could get off at 6 o'clock."
Mrs McLachlan's Counsel then made a plea in mitigation, but the result was that the Chief Constable asked Mrs McLachlan to resign. A resignation would have preserved her pension rights which she would have lost on a dismissal. She did resign, but had she not done so, the Tribunal inferred that she would have been dismissed. Her appeal was dismissed.
"A comparison of the cases of persons of different sex or marital status under section 1(1) or (2) or 3(1), or a comparison of the cases of persons required for the purposes of section 2A, must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
"what we would regard as a whole series of similar offences albeit not described in the same way, where the individual, both male and female, but largely male, have been dealt with by way of a reprimand or varying days fines."
The Tribunal volunteer no details of the nature of those offences in their reasons and we do not know their nature, although Mr Waters, who appeared before us for the Chief Constable, and who also appeared before the Tribunal, told us that none of the cases was similar to Mrs McLachlan's. Mr Bloom, who appeared before us for Mrs McLachlan, but did not appear before the Employment Tribunal, showed us a list of 35 offences committed by male and female officers over the period from 22 March 1995 to 16 February 2001, one of which was also before the Tribunal. The list is uninformative as to the details of the particular offences referred to. Five of the offences are described as "Disobedience to orders", and they include Mrs McLachlan's case. Of the other four offenders, three were men and one was a woman. The woman was reprimanded, two of the men were fined different amounts and the other man was required to resign. We derive no help from a sight of this list since it is obvious that the seriousness of the relevant disobedience will vary from case to case and that different cases will or may merit different disciplinary measures.
"25 The comparator in our view - hypothetical comparator - looking at that list is not the person who is going to end up in prison. Objectively in our view the offence that [Mrs McLachlan] was facing was a middle ranking offence. We looked at the middle ranking offences that have been dealt with by the Chief Constable and the Chief Constable's way of dealing with it was as prophesied by her Counsel and by the Senior Inspector as a few day's fine. We think she has been dealt with less favourably on a comparison with similar offences. Is the comparator of the opposite sex or of a different marital status to Mrs McLachlan or from a different racial group. We look at the comparators and we can see very largely they are male. It seemed to us that at this point the burden shifted. Can the respondents show that the reason for the less favourable treatment was not because of [Mrs McLachlan's] sex?
26 Has the respondent given an explanation for the less favourable treatment? On this particular occasion the Chief Constable explains to us the reason that he has taken the view that he has in that he has a disciplined service to run and that he regarded the disobedience of orders, irrespective of mitigation, as most serious. He has given the explanation. We find it unsatisfactory. We think any reasonable employer running a disciplined service could have seen the mitigation here she, as a mother, had important other duties. He should have asked himself and his own service 'what is going wrong'. Here was an excellent officer (described as excellent by a Senior Officer) who is about to be ruined and put in the same league as a man who has committed the most appalling acts with children or one that has blamed others for explicit e-mails. He should have asked himself whether there was in this new world of part time workers a more flexible way in dealing with this problem. Why didn't he? Having heard the Chief Constable and observed him we believe that he concluded that the clock-watching problem of this part-timer was given her family commitments insoluble. We conclude there was discrimination. Even under the old law we have no doubt that this was a case by inference when this woman has been treated differently because she was a woman. Despite the protestation of the Chief Constable and his Senior Officers the fact remains is that her status as a young mother with children to look after was a factor and a deciding factor in the way she was adversely treated. That is our conclusion after 9 days of hearing."
We find that reasoning and conclusion difficult to follow. The Tribunal provides no information as to the details of the "middle ranking offences" they had regard to which had been dealt with by fines. Nothing in the Tribunal's reasons enables us to be satisfied that any of those offences could fairly be regarded as closely similar in nature to Mrs McLachlan's case. The Tribunal's reasons certainly do not demonstrate that and if any of the other cases to which they had regard were in fact truly comparable to Mrs McLachlan's case, we would have expected the Tribunal to have identified those cases specifically. Mr Waters assures us that in fact no case was truly comparable, and although Mr Bloom did not have the advantage of being before the Tribunal, he has not sought to identify any of the cases as being truly comparable. Mrs McLachlan represented herself before the Employment Tribunal, and no doubt if any of the cases on the list did indeed amount to a true comparable, she would have drawn it to Mr Bloom's attention.