Chief Constable Of Greater Manchester Police v Bailey

A finding of victimisation is not logically inconsistent with the failure of a direct race discrimination claim arising from the same treatment. The causes of action require different causal links, and direct discrimination additionally requires a real or hypothetical comparator.

A protected act and a detriment alone do not shift the burden of proof. The tribunal must identify facts from which it could infer that the detriment was because of the protected act. A tribunal may draw that inference where the employer gives no adequate evidence from the decision-makers explaining the timing and manner of the treatment.

A professional standards complaint need not receive a full investigation, but the applicable regulations require a written response if it is not to be investigated as such.

The claimant, a black British/Caribbean police officer, had previously settled race discrimination claims against Greater Manchester Police. He was later recalled from a temporary secondment to TITAN, continued to work at the same location without a police car or travel expenses, and complained about the way in which this occurred.

The Manchester Employment Tribunal held that aspects of the recall amounted to victimisation, but not direct race discrimination. It also held that the respondent's failure to deal properly with the claimant's November 2012 professional standards complaint amounted to both victimisation and direct discrimination.

The respondent appealed, alleging errors concerning causation, the burden of proof, the compatibility of the findings, comparators, and the treatment of the professional standards complaint.

1. Appeal dismissed. The Employment Tribunal's reasoning contained some poorly expressed and incomplete passages, but no material error of law was established.

2. There was no necessary inconsistency between the Tribunal's finding of victimisation and its dismissal of the direct discrimination complaints concerning the recall from secondment. Victimisation and direct discrimination are separate causes of action. The former requires detriment because of a protected act; the latter requires less favourable treatment because of race by comparison with a person in materially the same circumstances. Neither protected act nor race need be the sole cause.

3. The Tribunal erred in suggesting that proof of a protected act and detriment automatically shifted the burden of proof. It had to identify facts capable of supporting an inference of the required causal link. The error was immaterial on the recall claims. The unexplained timing and manner of the recall, the continued discussion of the claimant's status, the extension of other officers' secondments, and the absence of evidence from those who made the decision entitled the Tribunal to infer victimisation. The fact that the secondment was temporary did not adequately explain why it ended when and as it did.

4. The Tribunal was also entitled to reject direct discrimination on the recall claims. Its finding was that a white officer who had made a protected act and had the same special arrangement would have been treated similarly. Administrative ineptitude did not provide a complete explanation for victimisation, but assisted the conclusion that race was not the reason for that treatment.

5. On the professional standards complaint, the Tribunal was entitled to find both direct discrimination and victimisation. The statutory scheme did not require a full investigation of every complaint. But, under the Police (Conduct) Regulations 2012, a complainant must at least be told in writing if the complaint is not to be investigated as a professional standards complaint. Whether a complaint falls within that scheme is a mixed question of law and fact, ultimately for a court. The Tribunal could rely on the inadequate response, the evidence, documents and an equivocal questionnaire answer in drawing its causal inferences. It gave only limited permissible weight to background material concerning race within the force.

• Employment Appeal Tribunal: Appeal dismissed: [2015] UKEAT 0166_15_0312.
• Employment Tribunal, Manchester: Reserved judgment sent to the parties on 10 February 2015. It upheld victimisation claims concerning the recall from secondment, dismissed corresponding direct discrimination claims, and upheld both victimisation and direct discrimination claims concerning the handling of the November 2012 complaint.