Chief Constable of Kent Constabulary v Bowler (Race Discrimination)

Under section 136 of the Equality Act 2010, a claimant must establish facts from which a tribunal could conclude that unlawful discrimination occurred. A difference in treatment, incompetence or unreasonable conduct does not, without more, establish a prima facie case. An inference that a decision-maker acted on a racial stereotype requires an evidential foundation.

For victimisation, the claimant must prove detriment and a causal link to a protected act. That requires proof, or a legitimate inference from primary facts, that the alleged discriminator knew or believed that the protected act had occurred. A tribunal may instead make positive findings by asking why the treatment occurred, but it must consider all realistic explanations.

A serving police officer brought claims of direct race discrimination and victimisation. The Employment Tribunal upheld two race-discrimination complaints and seven victimisation complaints, while dismissing the remaining allegations.

The Chief Constable appealed principally on the basis that the Tribunal had drawn unsupported inferences and had wrongly shifted the burden of proof. The appeal concerned the handling of a race grievance and appeal, daybook and pocketbook entries, and later treatment by a new line manager.

The central issue was whether the Tribunal had sufficient primary facts to infer discrimination or victimisation, particularly knowledge of a race grievance and causation.

1. Appeal allowed in part. The finding that DCI Somerville directly discriminated when investigating the grievance could not stand. The Tribunal found incompetence and a lackadaisical approach, but identified no evidence from which it could infer that he held, or acted upon, a stereotype that race complainants were over-sensitive. It made an unsupported leap from unreasonable conduct to race discrimination. That did not establish a prima facie case under section 136 of the Equality Act 2010.

2. The finding against DS Very was upheld. Unlike the Somerville finding, it rested on a sufficient evidential combination: he prejudged the appeal, was deliberately dishonest in suggesting that the race element had been abandoned, and included irrelevant material concerning the representative’s earlier race claim. The Tribunal could infer that his failure to take the appeal seriously resulted from a stereotypical view of race complainants.

3. The victimisation findings concerning the daybook entries and pocketbook reprimand were upheld. The Tribunal was entitled to make positive findings, rather than use a two-stage burden analysis. It permissibly found that the officers knew of and were annoyed by the grievance, that the entries cast the claimant in a negative light, and that the reprimand and changed treatment were caused by the grievance.

4. The findings against DS McClean could not stand. Although the treatment was capable of amounting to detriment, the Tribunal made no finding, and had no sufficient primary facts from which to infer, that he knew or believed that the grievance alleged race discrimination. Knowledge merely that there had been a grievance was insufficient. Unreasonable or unjustified treatment did not itself establish the necessary knowledge or causal link; the Tribunal also failed to address the alternative explanation arising from its own finding that he had been alerted to concerns about French Customs visits.

5. Issues 4D and 9E to 9H were remitted to the same Tribunal. Applying Sinclair Roche & Temperley v Heard, the EAT considered this proportionate and fair, given that Tribunal’s familiarity with the evidence.

• Employment Appeal Tribunal: Allowed the Chief Constable’s appeal in part and remitted issues 4D and 9E to 9H to the same Employment Tribunal.
• Employment Tribunal: By a reserved judgment promulgated on 5 April 2016, upheld specified claims of direct race discrimination and victimisation, rejected others, and held the claims in time or alternatively subject to a continuing act and a just-and-equitable extension.