Greater Manchester Police v Bailey, Court of Appeal - Civil Division, June 14, 2017, [2017] EWCA Civ 425

Resolution Date:June 14, 2017
Issuing Organization:Civil Division
Actores:Greater Manchester Police v Bailey
 
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Case No: A2/2015/4355

Neutral Citation Number: [2017] EWCA Civ 425

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM the Employment Appeal Tribunal

Elisabeth Laing J

Royal Courts of Justice

Strand, London WC2A 2LL

Date: 14/06/2017

Before:

LADY JUSTICE GLOSTER

(Vice President of the Court of Appeal (Civil Division))

LORD JUSTICE UNDERHILL

and

SIR PATRICK ELIAS

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Between:

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Simon Gorton QC (instructed by Greater Manchester Police Legal Services) for the Appellant

Paul Gilroy QC (instructed by Slater & Gordon (UK) LLP) for the Respondent

Hearing date: 22nd March 2017

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JudgmentLord Justice Underhill:

INTRODUCTION

  1. This is an appeal from a decision of the Employment Appeal Tribunal (Elisabeth Laing J sitting alone) dismissing an appeal from the Employment Tribunal, which had upheld claims by the Claimant of racial discrimination and victimisation. For convenience I will refer to the parties as they were before the ET, although the Claimant is the respondent before us.

  2. The Claimant is a police officer, holding the rank of Detective Constable, in the Greater Manchester Police (``the GMP''). He is black and was at all material times the Chair of the Black and Asian Police Association for the GMP. In 2007 and 2008 he brought claims of racial discrimination against the GMP. In 2009 these were settled by a compromise agreement. One of the terms of that agreement was that the GMP would second him at the earliest possible opportunity to the Regional Crime Unit (``the RCU''). The RCU was part of an entity, originally known as the North West Regional Serious and Organised Crime Unit (``the NWROCU'') but latterly as ``TITAN'', comprising five or six police forces from the North West. In the event, because it was not possible for various reasons for him to join the RCU the Claimant was seconded instead to another unit within the NWROCU/TITAN, the Regional Intelligence Unit (``the RIU''), with effect from 1 October 2009. The agreed term of the secondment was two years.

  3. At the end of the two years, in autumn 2011, no steps were taken to end the Claimant's secondment to the RIU. In the spring of 2012 he was posted to an operation called ``Operation Holly'', which was the joint responsibility of TITAN and the GMP. Operation Holly was based in Ashton-under-Lyne. Because his base as a member of the RIU was in Warrington, the Claimant was given the use of a police car to travel to and from his work.

  4. In November 2012 the decision was taken to terminate the Claimant's secondment to TITAN. He was to remain working on Operation Holly but in his capacity as a GMP officer. That meant that he would lose his entitlement to a car supplied by TITAN; and he would also not be entitled to claim travel expenses. He objected. By that stage a draft policy was under consideration under which officers seconded to TITAN would have five years' ``tenure'', and he argued that such a policy should apply in his case. One of the things that he was told in response was that he had never been seconded to the RIU but only ``attached''.

  5. Arising out of those events the Claimant in February 2013 brought proceedings in the Employment Tribunal against the Chief Constable of the GMP. He complained of seven detriments, labelled (a)-(g), which he said constituted both direct discrimination on the grounds of his race and victimisation by reason of his having brought the earlier ET claims. As recited in the ET's Reasons they read as follows:

    ``(a) failure to second him to the RCU in accordance with [the compromise agreement];

    (b) treating him as `attached' to TITAN rather than as `seconded';

    (c) terminating the secondment arrangement summarily and/or without consultation;

    (d) failing to allow the Claimant to complete 5 years in his seconded position in the RIU, contrary to the NWROCU tenure policy introduced in 2011;

    (e) withdrawing the Claimant's use of an RIU car and/or summarily and/or withdrawing it without consultation;

    (f) withdrawing the Claimant's right to claim travel expenses summarily and/or without consultation; and

    (g) failing to investigate the Claimant's complaints about these matters properly.''

  6. The case was heard by an ET sitting in Manchester chaired by Employment Judge Holmes over seven days in late 2014 and early 2015. By a reserved Judgment sent to the parties on 10 February 2015 the Tribunal found that the claim in relation to the first detriment was out of time and dismissed the claim in relation to the second. As regards the remaining five, it found that detriments (c)-(f) constituted victimisation but not discrimination and that (g) constituted both discrimination and victimisation.

  7. The Respondent appealed to the EAT. The Claimant did not cross-appeal against the dismissal of his discrimination claim. Elisabeth Laing J handed down her judgment dismissing the appeal on 3 December 2015.

  8. The Respondent was represented before us by Mr Simon Gorton QC and the Claimant by Mr Paul Gilroy QC. Mr Gorton, but not Mr Gilroy, also appeared in the EAT. In the ET the Claimant and the Respondent were represented by Mr Peter Sigee and Ms Assunta Del Priore respectively.

  9. The ET dealt with the claims with which we are concerned in two parts - taking first claims (c)-(f), which all concern the termination of the Claimant's secondment to the RIU and its consequences and are closely linked, and then claim (g), which concerns the handling of his subsequent complaint. That was a sensible division, which was also reflected in the submissions before us, and I will follow it in this judgment. But I should first set out the essential background law.

    THE BACKGROUND LAW

  10. Section 13 (1) of the Equality Act 2010 defines (direct) discrimination as follows:

    ``A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.''

    Race is of course a protected characteristic: see section 4.

  11. Section 27 of the Act defines victimisation (so far as relevant) as follows:

    ``(1) A person (A) victimises another person (B) if A subjects B to a detriment because--

    (a) B does a protected act, or

    (b) ...

    (2) Each of the following is a protected act--

    (a) bringing proceedings under this Act;

    (b)-(d) ...''

    It has not been suggested before us that the reference at sub-section (2) (a) to ``proceedings under this Act'' does not include also proceedings under the predecessor legislation.

  12. Both sections use the term ``because''/``because of''. This replaces the terminology of the predecessor legislation, which referred to the ``grounds'' or ``reason'' for the act complained of. It is well-established that there is no change in the meaning, and it remains common to refer to the underlying issue as the ``reason why'' issue. In a case of the present kind establishing the reason why the act complained of was done requires an examination of what Lord Nicholls in his seminal speech in Nagarajan v London Regional Transport [1999] UKHL 36, [2000] 1 AC 501, referred to as ``the mental processes'' of the putative discriminator (see at p. 511 A-B). Other authorities use the term ``motivation'' (while cautioning that this is not necessarily the same as ``motive''). It is also well-established that an act will be done ``because of'' a protected characteristic, or ``because'' the claimant has done a protected act, as long as that had a significant influence on the outcome: see, again, Nagarajan, at p. 513B.

  13. The Claimant's claims are brought under section 39 of the Act, read with section 42, which treats a police constable as employed (so far as relevant for our purposes) by the Chief Constable of the force to which he is appointed. Nothing turns in this appeal on the details of the provisions of section 39, and I need not set them out here.

  14. Both the discrimination and the victimisation claims are subject to the provisions of section 136 of the 2010 Act relating to the burden of proof, which read (so far as material):

    ``(1) This section applies to any proceedings relating to a contravention of this Act.

    (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

    (3) But subsection (2) does not apply if A shows that A did not contravene the provision.

    (4)-(5) ...''

    The effect of section 136 (or, strictly, the cognate provisions in the predecessor legislation) has been authoritatively expounded in a line of decisions culminating in Igen Ltd v Wong [2005] EWCA Civ 142, [2005] ICR 931, and Madarassy v Nomura International plc [2007] EWCA Civ 33, [2007] ICR 867. In brief, a tribunal must first decide whether a claimant has established a prima facie case of unlawful discrimination (or victimisation) in the sense elucidated in Madarassy at paras. 56-57; if he has, the burden shifts to the respondent to prove a non-discriminatory explanation.

    (A) THE TERMINATION OF THE SECONDMENT

    THE ET's FINDINGS OF FACT

  15. It is not necessary to go into detail about the circumstances of the Claimant's original secondment. But it is important to note that the documents referred to by the Tribunal show that the NWROCU regarded this as a special arrangement, made in order to help the GMP. The GMP was recorded as having agreed ``to pay Paul's costs, outside the normal arrangements for the running of the regional secondments'' (Reasons para. 4.28). It was also, apparently, irregular that the Claimant had been seconded without going through the normal recruitment processes: at a later stage in the story the then Head of Titan referred, in connection with the Claimant's position, to ``an already unsatisfactory situation regarding the...

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