Quarm v Commissioner of Police of The Metropolis

For victimisation, detrimental treatment must be because of a protected act. But-for causation alone is insufficient. Where conduct responds to ongoing litigation, a tribunal must objectively assess whether a reasonable litigant could regard it as a detriment; reasonable steps to protect an employer’s position in that litigation will not ordinarily qualify.

A procedural failure may nevertheless be a detriment even if it would not have altered the eventual outcome. At strike-out stage, the tribunal must correctly understand the statutory framework and the substantive discrimination, victimisation and protected-disclosure tests. It must not require the protected characteristic or protected act to be the sole or main reason for treatment.

The Claimant, a serving police officer, brought three appeals arising from two Employment Tribunal proceedings.

The London Central Tribunal dismissed his victimisation claim concerning the handling of a referral by the Independent Police Complaints Commission. It found that the initial decision to defer consideration while related Employment Tribunal litigation was pending was not a detriment, and that later inaction resulted because the matter had been forgotten. It also refused reconsideration.

The London East Tribunal struck out a later claim alleging race discrimination, victimisation and protected-disclosure detriment arising from a decision not to record or investigate a dossier of alleged police misconduct. The central question was whether those claims had no reasonable prospect of success.

1. The appeals from the Tayler Tribunal were dismissed. Its finding that the initial deferral of the referral was not a detriment was open to it. The related Employment Tribunal claim and the internal process concerned the same alleged conduct. The complaint also had a recursive character: it challenged the failure to assess an earlier complaint about a failure to assess. In those unusual circumstances, the Tribunal was entitled to conclude objectively that deferring the internal process during the litigation was a reasonable response and not detrimental treatment under Equality Act 2010.

2. The Tribunal was also entitled to find that later inaction was not because of a protected act. Its accepted finding was that the handler had forgotten the matter because of workload, time and personal circumstances. That was not treatment motivated by the protected acts. But-for causation could not establish victimisation.

3. The Tribunal did err in alternatively holding that there was no detriment because further action would have made no difference. Applying [2015] ICR 1213, a procedural failing can itself be a detriment although it has no effect on the substantive result. The error did not affect the dismissal because the Tribunal’s independent causation finding disposed of that part of the claim.

4. The appeal from the Jones Tribunal was allowed. The Tribunal misunderstood the statutory police-complaints regime. Although an officer could not make a statutory public complaint against colleagues under the same chief officer, allegations capable of being conduct matters could still be raised and assessed. It also wrongly treated the evidence as showing no knowledge of the Claimant’s previous complaints or of matters indicating his race.

5. The Tribunal could not safely strike out the claims while proceeding on those errors. Further, its reference to treatment being “mainly or only” because of race or prior complaints created an unresolved concern that it had applied the wrong substantive causation tests. The strike-out and the finding that the claims were totally without merit were quashed. The claims were remitted for a Full Merits Hearing before a panel of which Employment Judge Jones is not a member.

• Employment Appeal Tribunal: The appeals from the London Central Tribunal’s liability and reconsideration decisions were dismissed. The appeal from the London East Tribunal’s strike-out decision was allowed; the strike-out and totally-without-merit finding were quashed and the claim remitted to a differently constituted Tribunal.
• Employment Tribunal, London East: On 27 February 2018, following a preliminary hearing, Employment Judge Jones struck out claims of race discrimination, victimisation and protected-disclosure detriment as having no reasonable prospect of success and found them totally without merit.
• Employment Tribunal, London Central: On 7 September 2017, the Tayler Tribunal dismissed a victimisation claim. On 25 June 2018, it refused reconsideration.