Greater Manchester Police v Bailey

Liability for direct discrimination or victimisation depends on the actual reason for the treatment. A mere “but for” connection between a protected characteristic or act and the surrounding circumstances is insufficient. Where a tribunal positively finds a complete, innocent explanation, that finding excludes inconsistent discriminatory or retaliatory reasons, and the statutory burden of proof has no further role.

Evidence of discrimination elsewhere within an institution may sometimes illuminate an alleged discriminator’s motivation. A tribunal must use such evidence cautiously and explain specifically why it has probative value in the particular case.

A black police officer had previously brought race discrimination proceedings which were settled by an agreement providing for his secondment. After the secondment was terminated, he alleged direct race discrimination and victimisation in relation to the termination, its consequences and the handling of his subsequent discrimination complaint.

The Employment Tribunal upheld victimisation claims concerning the termination and upheld both discrimination and victimisation concerning the complaint’s handling. The Employment Appeal Tribunal dismissed the Chief Constable’s appeal.

The central issues were whether the Tribunal’s findings about the reasons for terminating the secondment were internally inconsistent, and whether its inference that the complaint had been mishandled for reasons connected with race or protected acts was legally sustainable.

1. Appeal allowed unanimously. The victimisation claims concerning termination of the secondment and its consequences were dismissed. The claim concerning the handling of the officer’s complaint was remitted for rehearing.

2. The Tribunal erred by treating the causal sequence between the earlier proceedings, the compromise agreement and the secondment as sufficient to establish victimisation. A “but for” connection does not show that treatment occurred because of a protected act. The relevant inquiry concerns the decision-maker’s actual mental processes and whether the protected act significantly influenced the outcome.

3. The Tribunal had positively found that the complete explanation for terminating the secondment was that the agreed term of a special arrangement had expired, coupled with delay and inept implementation. That finding was inconsistent with its alternative conclusion that the earlier proceedings had influenced the decision. An innocent reason found to be the complete explanation excludes both race and the protected act as operative reasons. The burden under section 136 of the Equality Act 2010 had no role once the Tribunal made positive findings about the reason for the treatment.

4. The Tribunal’s initial burden-of-proof error concerning the handling of the complaint was not itself decisive because it subsequently made a positive finding about the responsible officer’s motivation. An unreasonable conscious explanation can support an inference that another, potentially subconscious, consideration also operated. It was unnecessary to find that the officer had lied.

5. Nevertheless, the inference of discriminatory or retaliatory motivation was unsafe. The Tribunal did not identify the documents or questionnaire answers on which it relied or explain their probative effect. Nor did it explain specifically how reports and earlier findings of racism within the force bore upon the individual officer’s motivation. Institutional evidence is not invariably inadmissible, but it requires careful and particularised reasoning; there is no doctrine transferring another person’s discriminatory state of mind.

6. The defects did not make a finding of liability legally impossible. Claim (g) was therefore remitted, with the court’s strong provisional view that it should be heard by a differently constituted tribunal.

1. Court of Appeal (Civil Division): Allowed the Chief Constable’s appeal. It dismissed claims (c)-(f) and remitted claim (g) for rehearing.
2. Employment Appeal Tribunal: Elisabeth Laing J dismissed the Chief Constable’s appeal on 3 December 2015.
3. Employment Tribunal: Dismissed or rejected the first two pleaded detriments, upheld victimisation concerning detriments (c)-(f), and upheld both direct discrimination and victimisation concerning detriment (g).