Chief Constable of Greater Manchester Police v Bailey

The Court of Appeal considered claims of direct racial discrimination and victimisation arising from the termination of a police officer's secondment and from the handling of his complaint about that termination. Key legal principles applied were the meaning of "because" in sections 13 and 27 of the Equality Act 2010 (the "reason why" question), the burden of proof under section 136 of the Act, and the established rule that mere "but for" causation does not establish discrimination or victimisation. The Employment Tribunal's reasoning was set aside in part because it (i) wrongly treated the mere fact that the secondment existed as sufficient to show the termination was "because of" the claimant's protected act, and (ii) misdirected itself on the burden of proof. The Court allowed the appeal in relation to the termination-related findings (claims (c)-(f)) and dismissed those claims on the basis of the Tribunal's primary findings of fact; but it found the Tribunal's reasoning about the handling of the complaint (claim (g)) unsafe and remitted that issue to the Employment Tribunal for reconsideration.

The respondent (Paul Bailey), a black Detective Constable and chair of the Black and Asian Police Association at Greater Manchester Police (GMP), had previously brought racial discrimination claims which were settled by a compromise agreement under which he would be seconded to a regional unit. The secondment to a regional intelligence unit (RIU) was for two years from October 2009 but was later brought to an end and he lost entitlements (car and travel expenses) when he was returned to GMP service while remaining on a joint operation. The claimant brought seven detriment complaints to the Employment Tribunal, alleging direct race discrimination and victimisation by reason of his earlier proceedings. The ET found some detriments constituted victimisation (claims (c), (e), (f)) and that the complaint-handling (g) was both discrimination and victimisation; it dismissed some discrimination allegations and held the claim as to the first detriment out of time.

Procedural history: The Employment Tribunal heard the matter over seven days and issued reserved Reasons on 10 February 2015. The respondent appealed to the Employment Appeal Tribunal; Elisabeth Laing J dismissed that appeal on 3 December 2015. The Chief Constable appealed to the Court of Appeal.

Nature of the appeal and issues: The Court analysed (i) the correct approach to the burden of proof under section 136 of the Equality Act 2010 and the Madarassy/Igen line of authority; (ii) whether the Tribunal erred in treating the mere existence of the secondment (which arose from the compromise agreement) as establishing that the termination was "because of" the claimant's protected act (a "but for" or background-causation error); and (iii) whether the Employment Tribunal's findings and reasoning about the Professional Standards handling of the claimant's complaint (claim (g)) were adequate and safe, including the correct application of the statutory police complaint/conduct regimes referred to in the bundle (Police Reform Act 2002; Police (Conduct) Regulations 2012).

Reasoning and conclusions: The Court held that the ET had adopted two strands of reasoning on the termination: (1) an attempt to infer actual motivation of decision-makers (proper "reason why" inquiry), and (2) an erroneous "but for" strand concluding the termination flowed from the compromise agreement and thus from the protected act. The Court found the second strand was legally wrong and that the Tribunal's findings on discrimination (paras. 35-36 of its Reasons) constituted a complete explanation (an "innocent" explanation) for the acts complained of; that being so, the victimisation findings dependent on a contrary inference could not stand. Accordingly claims (c)-(f) were dismissed. As to claim (g), the Court found the ET's reasoning flawed and its inference about the Professional Standards lead's motivation unsafe because of failures of exposition and uncertainty about which statutory complaint/conduct regime was in play; it remitted claim (g) to the Employment Tribunal for reconsideration (likely to a differently constituted tribunal).

Appeal allowed in part. The Court held that the Employment Tribunal had erred by relying on a "but for" explanation for the termination of the secondment and by misapplying the burden of proof; on the Tribunal's own primary findings the termination-related claims (c)-(f) should be dismissed. The Tribunal's finding about the handling of the claimant's complaint (g) was unsafe for want of adequate reasoning and proper analysis of the applicable police complaints/conduct regimes and was remitted for rehearing.

Employment Tribunal (Manchester) reserved judgment 10 February 2015 (claims of discrimination and victimisation partly upheld); Employment Appeal Tribunal (Elisabeth Laing J) dismissed the employer's appeal 3 December 2015; Court of Appeal [2017] EWCA Civ 425 (Lord Justice Underhill, Lady Justice Gloster, Sir Patrick Elias) allowed the appeal in part on 14 June 2017, dismissing claims (c)-(f) and remitting claim (g) to the Employment Tribunal for reconsideration.