Power v. Greater Manchester Police Authority

Article 6 does not entitle a claimant in civil discrimination proceedings to confront or cross-examine a particular witness for a corporate respondent. Article 6.3(d) concerns criminal proceedings. The appropriate approach is to determine whether the claimant establishes a prima facie case. The respondent must then provide an explanation, whose credibility may be weakened if relevant witnesses are not called. Where the wording of a dismissal letter reasonably suggests that a protected belief contributed to dismissal, the issue should proceed to a full hearing. Evidence will not be admitted on appeal where it fails to meet the applicable requirements, including a significant potential effect on the tribunal’s judgment.

The claimant challenged his dismissal by the Greater Manchester Police Authority after earlier proceedings established that his belief in spirituality was capable of protection under the Religion and Belief Regulations 2003. At the full hearing, the tribunal concluded that the dismissal resulted from conduct and the manner in which beliefs were expressed, rather than the beliefs themselves.

On a preliminary appeal, the claimant argued that he had been denied a fair trial because the respondent’s decision-maker was not called, and sought to introduce further evidence. The central issue was whether the dismissal letter reasonably indicated that his protected belief had contributed to the decision to dismiss.

1. Article 6. The claimant had a right to a fair hearing, but no right in these civil proceedings to confront or cross-examine a particular employee of a corporate respondent. Article 6.3(d) applies to confrontation of accusers in criminal proceedings. The fairness ground therefore failed.
2. Burden and explanation. In a discrimination claim, the tribunal should first decide whether the claim passes the prima facie test identified in Igen Ltd v Wong [2005] IRLR 258. The respondent must then provide an explanation. That explanation may be less credible where relevant witnesses are not produced, but the absence of a witness does not itself breach a Convention right.
3. Belief discrimination. The tribunal’s conclusion was reasonably arguable, on the wording of the dismissal letter, to involve the claimant’s belief at least in part. If the protected belief contributed to dismissal, the dismissal would likely constitute unlawful discrimination under the Religion and Belief Regulations 2003. That issue was to proceed to a full hearing.
4. New evidence. Earlier documents were unavailable under the applicable Practice Direction. The correspondence concerning a CPR Part 36 offer was not examined in the respondent’s absence. Material concerning information supplied by police officers was also excluded because it was not shown that it would have a significant effect on the tribunal’s judgment. Even reliance on untrue information would not establish belief discrimination unless the belief was consciously or subconsciously invoked.

• Employment Tribunal: The claimant’s discrimination claim was dismissed on the basis that the respondent acted because of the manner in which his beliefs were expressed, rather than because he held those beliefs.
• Employment Appeal Tribunal: In the earlier proceedings, identified in the judgment as UKEAT/0434/09, the claimant was held entitled to pursue a claim under the Religion and Belief Regulations 2003. At this preliminary hearing, the Article 6 argument failed, but the belief-discrimination issue was considered reasonably arguable and was allowed to proceed to a full hearing.