Commissioner Of Police Of The Metropolis v Maxwell

An employment tribunal need not mechanically repeat the two-stage burden-of-proof analysis for every discrimination allegation. It must, however, determine the issues in the manner most convenient and appropriate to the evidence and circumstances. Findings may rest on contextual inferences, including an implausible denial or explanation.

Harassment requires an objective assessment of its effect, taking account of the claimant’s perception and all the circumstances. Victimisation depends on treatment by reason of protected acts; the reverse burden under the Race Relations Act 1976 does not apply to it. A tribunal may find a continuing act from the substance of the complaints, but isolated acts outside time require a valid extension. Vicarious liability may be established where confidential claim information is shown to have been leaked by an officer, although the individual leaker is unidentified.

The claimant, a mixed-race gay detective constable, brought two employment tribunal claims against the Commissioner alleging direct race and sexual-orientation discrimination, harassment and victimisation. The first claim concerned numerous workplace incidents. The second concerned a leak of detailed information about his discrimination claim to The Sun.

The Employment Tribunal upheld a substantial number of complaints. The Commissioner appealed on 17 grounds. The principal issues were whether the Tribunal had correctly handled the burden of proof, properly found direct discrimination, harassment and victimisation, correctly dealt with limitation, and could impose vicarious liability for the leak.

1. Appeal allowed in part. The Employment Appeal Tribunal upheld the Tribunal’s decision on both claims except for its finding of direct discrimination based on CI Quantrell’s aggressive tone, and its consideration of the complaints against DC Howarth and DS Addis. The latter complaints were outside time and the Tribunal had no jurisdiction to consider them.

2. The Tribunal had considered the evidence and each allegation with considerable care. Its reasons sufficiently identified the primary facts, so that the inferences drawn could be examined. It was entitled to accept the claimant’s evidence on some incidents while rejecting it on others. There was no rule that uncorroborated evidence from a witness whose recollection had failed on other matters could not be accepted.

3. For direct discrimination, the Tribunal had the two-stage approach in [2005] ICR 931 in mind. It did not have to restate or mechanically apply that approach separately to every complaint. The decisive question was whether it had properly addressed the issues in the circumstances. Context supported the challenged findings, including the treatment of the claimant’s discrimination complaints and the rejection of explanations advanced by managers.

4. The Tribunal was entitled to uphold the challenged harassment findings. It was aware that harassment under section 3A required an objective assessment, taking account of the claimant’s perception and all the circumstances. Its findings showed that it distinguished conduct which reasonably had the prescribed effect from conduct to which the claimant was merely over-sensitive.

5. The Tribunal was also entitled to find victimisation. The relevant conduct was capable of being found to arise because the claimant had raised complaints of race and sexual-orientation discrimination. The lack of a reverse burden for race victimisation did not show that the Tribunal had applied the wrong test.

6. On the leak claim, the Tribunal could infer that the detailed information had come from an officer for whose acts the Commissioner was vicariously liable. Identification of the individual leaker was unnecessary on these facts. The appeal against that conclusion failed.

• Employment Appeal Tribunal: appeal allowed only as to one finding of direct discrimination and the out-of-time complaints against DC Howarth and DS Addis; otherwise dismissed.
• Employment Tribunal, Reading: judgment sent to the parties on 15 February 2012. It upheld numerous complaints of direct discrimination, harassment and victimisation in two claims heard together.