Commissioner of Police of the Metropolis v Virdi

Victimisation under section 2(1) of the Race Relations Act 1976 requires a subjective inquiry into why the alleged discriminator acted. A protected act need only form a significant part of the motivation.

Where an Employment Tribunal’s inference rests on a material factual mistake for which there is no evidence, the error is one of law. The Employment Appeal Tribunal may dismiss rather than remit where the corrected findings cannot sustain the conclusion. A separate review cannot support an inference against a later decision-maker without evidence of knowledge and causal connection.

Virdi, a detective sergeant, brought claims against the Commissioner arising from the rejection of his application for promotion through the TOWBAR process. The Employment Tribunal upheld his victimisation claim but dismissed his direct discrimination claim; the disability claim was dealt with separately.

The Employment Appeal Tribunal allowed an appeal from that decision. It found that the Employment Tribunal had mistakenly treated the Serious Crime Directorate as the division affected by Virdi’s earlier complaints, and dismissed the victimisation claim rather than remitting it. The appeal concerned whether that course was open to the EAT and whether the remaining findings could sustain the inference of victimisation.

Appeal dismissed. The Court of Appeal unanimously upheld the EAT’s decision. Laws LJ gave the principal judgment, with Wall LJ and Maurice Kay LJ agreeing.

1. The governing test under section 2(1) of the Race Relations Act 1976 is subjective. The tribunal must ask why the alleged discriminator acted, including the decision-maker’s conscious or unconscious reasons. The protected act need only be a significant part of the motivation. The principles stated in Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 and Nagarajan v London Regional Transport [1999] ICR 877 were accepted.
2. The Employment Tribunal’s inference rested materially on its mistaken belief that the Serious Crime Directorate had borne the brunt of Virdi’s earlier complaints. The relevant division was the Directorate of Professional Standards. The mistake concerned an established fact, was unsupported by evidence, and went to the heart of the Tribunal’s reasoning. It therefore amounted to an error of law.
3. The remaining matters showed deficiencies in the Appeal Panel’s approach but were not specifically indicative of victimisation. The special review by DAC Roberts could not support an inference against the later Appeal Panel without a finding that the panel knew of the review or its contents. A mere risk of such knowledge was insufficient, and there was no finding that Roberts himself had been influenced by a protected act.
4. Section 35 of the Employment Tribunals Act 1996 gives the EAT a discretion either to exercise the lower tribunal’s powers or to remit the case. The approach in Morgan v Electrolux Limited [1991] ICR 369 was followed: remittal is unnecessary where, after correcting the error, no properly directed tribunal could sustain the conclusion. The EAT was therefore entitled to dismiss the claim.

• Court of Appeal (Civil Division): appeal dismissed on 11 February 2009.
• Employment Appeal Tribunal: on 4 July 2008, allowed the appeal from the Employment Tribunal and dismissed the victimisation claim rather than remitting it.
• Employment Tribunal: upheld the victimisation claim and dismissed the direct discrimination claim; judgment sent to the parties on 8 October 2007.