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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Commissioner Of Police Of Metropolis v Abbott [2004] UKEAT 0151_04_2109 (21 September 2004) URL: https://www.bailii.org/uk/cases/UKEAT/2004/0151_04_2109.html Cite as: [2004] UKEAT 151_4_2109, [2004] UKEAT 0151_04_2109 |
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At the Tribunal | |
On 25 August 2004 | |
Before
HIS HONOUR JUDGE ANSELL
MR K EDMONDSON JP
MR J MALLENDER
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MS S McKIE (of Counsel) Instructed by: Metropolitan Police Service Directorate of Legal Services Wellington House 67-73 Buckingham Gate London SW1E 6BE |
For the Respondent | MR R PIRANI (of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors Swinton House 324 Grays Inn Road London WC1X 8DB |
SUMMARY
Sex Discrimination
Burden of proof, primary findings. Did burden shift? Was burden discharged? Whether to remit to same or different Tribunal.
HIS HONOUR JUDGE ANSELL
"The Applicant explained that an incident had occurred in the autumn of 1997 when she refused to give a lift home to another officer who had been drunk and abusive. She had reported the incident as a result of which she was subjected to bullying and harassment. She had made complaints about her treatment and eventually applied for a transfer."
"(a) The procedure adopted by the Respondent in relation to the application for entry upon the DCDP and the process by which her application was assessed was not less favourable treatment of the Applicant as the procedure was applied equally to male officers on secondment
(b) The decision of the panel not to allow the Applicant, whose application was fully supported by senior police officers and whose performance in the police force was highly regarded, to sit a written assessment, the result of which determined whether she Was admitted to the training programme could amount to unlawful sex discrimination by way of victimisation in the absence of proof to the contrary. She had made complaints of sexual harassment while at Fulham Police Station and such complaints amounted to allegations of unlawful sex discrimination. The panel knew that she had done so.
(c) The Tribunal is not satisfied with the explanation given by the Respondent upon whom is the burden of proof:
(i) Ms Coles' conclusion that the Applicant should not be allowed to sit the assessment was principally by reference to the manner of presentation of her application when the Applicant had already been heavily involved in writing the narrative of her husband's earlier application -an application that had succeeded
(ii) Chief Inspector Reed expressed the view that had her application been considered within the Division to which she was seconded, she would have been accepted on to programme
(iii) The Applicant was strongly supported by her line manager and her Chief Inspector
(iv) The criticism of her application was nit picking
(v) At no time after her application was refused did the Respondent offer the Applicant practical help and guidance and encouragement to re-apply for the next programme
(vi) Mr Denyer made no proper enquiries into the 'sensitive information' referred to in grounds of appeal; he did not conduct an interview with the Applicant before making his decision; when he did speak to the Applicant he did not review his earlier decision but merely demonstrated his view by indicating that he trusted the panel and the Applicant did not
(vii) Chief Inspector Bamber refused to disturb the earlier decisions and appeared to be more concerned that the Applicant was in possession of other candidates' application forms and that there may have been collusive activities than to determine the review on the merits
(viii) The Applicant was marked down because the application lacked explanations from the Applicant as to why she had acted as she did - when the instructions did not state that such explanations were required.
(d) In the absence of proof from the Respondent that the refusal to allow the Applicant to sit the written assessment was not an act of unlawful discrimination the Applicant's complaint of victimisation succeeds."
"(1) This section applies to any complaint presented under section 63 to an employment tribunal.
(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent -
(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part 2, or
(b) is by virtue of section 41 or 42 to be treated as having committed such an act of discrimination against the complainant,
the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or, as the case may be, is not to be treated as having committed, that act."
"25 We therefore consider it necessary to set out fresh guidance in the light of the statutory changes:
(1) Pursuant to s.63A of the Sex Discrimination Act 1975, it is for the applicant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondents have committed an act of discrimination against the applicant which is unlawful by virtue of Part II or which by virtue of s.41 or 42 SDA is to be treated as having been committed against the applicant. These are referred to below as 'such facts'.
(2) If the applicant does not prove such facts he or she will fail.
(3) It is important to bear in mind in deciding whether the applicant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that 'he or she would not have fitted in'.
(4) In deciding whether the applicant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.
(5) It is important to note the word is 'could'. At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts proved by the applicant to see what inferences of secondary fact could be drawn from them.
(6) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s. 7 4 (2) (b) of the Sex Discrimination Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within s.74 (2) of the Sex Discrimination Act: see Hinks v Riva Systems EAT/501/96.
(7) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining such facts pursuant to s.56A (10) SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.
(8) Where the applicant has proved facts from which inferences could be drawn that the respondents have treated the applicant less favourably on the grounds of sex, then the burden of proof moves to the respondent.
(9) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed that act.
(10) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive.
(11) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not any part of the reasons for the treatment in question.
(12) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice."
"8 No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others? But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined.
9 The present case is a good example. The relevant provisions in the Sex Discrimination (Northern Ireland) Order 1976 are in all material respects the same as those in the Sex Discrimination Act 1975 which, for ease of discussion, I have so far referred to. Chief Inspector Shamoon claimed she was treated less favourably than two male chief inspectors. Unlike her, they retained their counselling responsibilities. Is this comparing like with like? Prima facie it is not. She had been the subject of complaints and of representations by Police Federation representatives, the male chief inspectors had not. This might be the reason why she was treated as she was. This might explain why she was relieved of her responsibilities and they were not. But whether this factual difference between their positions was in truth a material difference is an issue which cannot be resolved without determining why she was treated as she was. It might be that the reason why she was relieved of her counselling responsibilities had nothing to do with the complaints and representations. If that were so, then a comparison between her and the two male chief inspectors may well be comparing like with like, because in that event the difference between her and her two male colleagues would be an immaterial difference.
10 I must take this a step further. As I have said, prima facie the comparison with the two male chief inspectors is not apt. So be it. Let it be assumed that, this being so, the most sensible course in practice is to proceed on the footing that the appropriate comparator is a hypothetical comparator: a male chief inspector regarding whose conduct similar complaints and representations had been made. On this footing the less favourable treatment issue is this: was Chief Inspector Shamoon treated less favourably than such a male chief inspector would have been treated? But, here also, the question is incapable of being answered without deciding why Chief Inspector Shamoon was treated as she was. It is impossible to decide whether Chief Inspector Shamoon was treated less favourably than a hypothetical male chief inspector without identifying the ground on which she was treated as she was. Was it grounds of sex? If yes, then she was treated less favourably than a male chief inspector in her position would have been treated. If not, not. Thus, on this footing also, the less favourable treatment issue is incapable of being decided without deciding the reason why issue. And the decision on the reason why issue will also provide the answer to the less favourable treatment issue.
11 This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will be usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.
12 The most convenient and appropriate way to tackle the issues arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case. There will be cases where it is convenient to decide the less favourable treatment issue first. But, for the reason set out above, when formulating their decisions employment tribunals may find it helpful to consider whether they should postpone determining the less favourable treatment issue until after they have decided why the treatment was afforded to the claimant. Adopting this course would have simplified the issues, and assisted in their resolution, in the present case."
"25. In Chief Constable of Yorkshire v Vento [2001] IRLR 124 the EAT approved the introduction of an hypothetical comparator where there was no actual male comparator – the Tribunal constructing a picture of how he would be treated in comparable circumstances. In Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 the House of Lords provided guidance in relation to complaints of victimisation – a simple comparison has [to] be drawn between the treatment afforded to the complainant and that afforded (or that would have been afforded) to other employees who had not done the protected act."
(i) the Respondent assisting her husband in making a successful application;
(ii) Sue Coles' initial decision that it would be inappropriate for her to sit on the panel
(iii) the fact that normally candidates would be marked by people from their own division;
(iv) the alleged comment from Chief Inspector Reed that if she had been marked at a divisional level it would probably have gone through.
"11. … The second was whether the refusal by Sue Coles and Chief Inspector Robert Reed to allow the Applicant to sit a written assessment as part of the Detective Constable Development Programme…and the confirmation of that decision on appeal and review amounted to unlawful sex discrimination."
"27. (a) … the process by which her application was assessed was not less favourable treatment of the Applicant as the procedure was applied equally to male officers on secondment