Mr P Bailey v The Chief Constable of Greater Manchester and others: 2407913/2015 and 2405789/2015

EMPLOYMENT TRIBUNALS

Case No 2407913/2015, 2405789/2015

Between

Mr P BaileyClaimant

The Chief Constable of Greater Manchester and othersRespondent

Before

Employment Judge Holmes

Date 15 November 2018

JUDGMENT

ON APPLICATION FOR DEPOSIT ORDERS It is the judgment of the tribunal upon the respondents’ application for deposit orders to be made against the claimant in respect of certain aspects of his claims that : 1.The applications in relation to case no. 2405789/2015, in respect of those parts of the claims identified in the formal deposit order below succeed, but all others fail, and are dismissed. 2.The application in relation to case no. 2407913/2015 succeeds, and deposit orders are made in the terms set out in the formal deposit order below in respect of the claims identified therein. DEPOSIT ORDER Case no. 2405789/2015 The Employment Judge considers that the claimant’s allegations or arguments that: a) The failure of the respondent to respond appropriately to his complaints of racial abuse on social media (Item 13 on the Scott Schedule) was an act of detriment on the part of the respondent for having made a protected disclosure; b) The failure of the respondent to respond appropriately to his complaints of racial abuse on social media (Item 13 on the Scott Schedule) was an act of victimisation on the part of the respondent for having done a protected act relating to his protected characteristic of his race; c) The failure of the respondent to respond appropriately to his complaints of racial abuse on social media (Item 13 on the Scott Schedule) was an act direct race discrimination; d) The failure of the respondent to respond appropriately to his complaints of racial abuse on social media (Item 13 on the Scott Schedule) was an act of harassment related to the protected characteristic of the claimant’s race; have little reasonable prospect of success. The claimant is ORDERED to pay a deposit of ££200.00 in respect of each such claim no later than 26 June 2017 as a condition of being permitted to continue to advance those allegations or arguments. The Judge has had regard to any information available as to the claimant’s ability to comply with the order in determining the amount of the deposit. Case no. 2407913/2015 The Employment Judge considers that the claimant’s allegations or arguments that: a) His removal as disclosure officer from Operation H was an act of detriment on the part of the first respondent for having made a protected disclosure; b) His removal as disclosure officer from Operation H was an act of victimisation on the part of the first respondent for having done a protected act relating to his protected characteristic of his race; c) His removal as disclosure officer from Operation H was an act of detriment on the part of the second respondent for having made a protected disclosure; d) His removal as disclosure officer from Operation H was an act of victimisation on the part of the second respondent for having done a protected act relating to his protected characteristic of his race; e) His removal as disclosure officer from Operation H was an act of detriment on the part of the third respondent for having made a protected disclosure; f) His removal as disclosure officer from Operation H was an act of victimisation on the part of the third respondent for having done a protected act relating to his protected characteristic of his race; have little reasonable prospect of success. The claimant is ORDERED to pay a deposit of ££200.00 in respect of each such claim no later than 26 June 2017 as a condition of being permitted to continue to advance those allegations or arguments. The Judge has had regard to any information available as to the claimant’s ability to comply with the order in determining the amount of the deposit. The claimant’s attention is drawn to the accompanying Notes attached to this judgment and order.

REASONS

Conclusion

[1]The claimant was represented by Ms Connolly of counsel, and the respondents by Mr Gorton QC. This application concerns two cases, number 2405789/2015 which relates to an Operation to be referred to as “W” and number 2407913/2015 which relates an Operation to be referred to as “H”.

[2]The respondents’ applications are for deposit orders in respect of parts, but not all, of the claims made by the claimant alleging whistleblowing detriments, and race discrimination in connection with his roles in each of these Operations. The claims made by the claimant are contained in various sources, but for these purposes, those made in connection with Operation W are set out in a Scott Schedule which is at pages 54 to 59 of the Bundle, and the one relevant claim in relation to Operation H is simply that the claimant was removed as the disclosure officer from that Operation. The claimant is a black Police Officer , and Chair of the Black and Asian Police Association, who has previously brought claims against one of the respondents (his employer, GMP) for race discrimination.

[3]Counsel had helpfully prepared skeleton arguments , to which they spoke. There was a Bundle for use in this hearing (references to “the Bundle” in this judgment being to that Bundle) , and a further Bundle of statutory and regulatory material (referred to as “the Materials Bundle”) . Having heard their submissions , and considered the documentation, the tribunal reserved its judgment which is now given. The applications, the grounds relied upon, and the grounds of resistance.

[4]It is proposed to go through each of the claims said by the respondents to have little reasonable prospect of success , and why, to consider also the claimant’s response , and then make findings as to their prospects of success, before , in conclusion, reviewing the application as a whole , taking any further considerations into account.

[5]By way of preamble, the claims which are the subject matter of these applications are , in the case of Operation W , four in number, in terms of the factual situations that are alleged, namely that the claimant:(i) was the subject of a covert investigation from August 2014 instigated following the preparation of a BAPA dossier complied by the claimant which had been provided to HMIC;

(ii) was the subject of an actual investigation in or about October 2014 when investigations were made with officers whose details and information had been included in a BAPA dossier complied by the claimant which had been provided to HMIC;

(iii) was served with a Regulation 16 notice alleging that he had breached confidentiality in leaking information to the Press;

(iv) made complaints that he was the victim of racial abuse on social media sites which were not treated as hate crimes or responded to by the respondent (the GMP) appropriately. Each claim is put on the alternative basis, against each respondent that it is an act of either : (a) detriment by reason of the claimant having made protected disclosures; (b) direct race discrimination; (c) harassment on the grounds of race; (d) victimisation (for having complained of race discrimination). There are thus, potentially, 16 such claims in Operation W, and a deposit order is sought in respect of each of them. There is only one respondent in this claim, the GMP.

[6]In relation to Operation H, there are three respondents, one of which is the GMP as well, but only one factual allegation, namely the removal of the claimant from his role as discsloure officer on that Operation. A)Operation W – claim (i).

[7]The first application in this instance relates to claims made by the claimant, in his Scott schedule and ET1. They are that the claimant was the subject of a covert investigation in or about August 2014, which is alleged (Item 5 on the Schedule at page 55) to constitute detriment for having whilstleblown , direct race discrimination, harassment or victimisation. The respondents (in this instance solely the GMP) contend that this claim or claims have little reasonable prospect of success. They do so on the basis that the claimant has merely made these claims as an assertion, he has advanced no proof in support of them. The claimant’s claims are based on the suspicion that any such detrimental action was the result of him producing a dossier to HMIC (Her Majesty’s Inspectorate of Constabularies). There is, say the respondents no evidential support for this, and, in any event, they contend that the claimant cannot shift the burden of proof for any of the three heads of discrimination claims.

[8]Further, for the purposes of the whistleblowing claim, there was no prior protected disclosure. This contention is based upon the fact that the claimant’s alleged protected disclosure for these purposes was to the HMIC. That body was not, the respondents contend, either the claimant’s employer (which is obviously correct) nor is it a “prescribed person” under s.43F of the Act. Thus, the respondents contend this aspect of all four of the Operation W detriment claims cannot succeed, as there was no qualifying disclosure.

[9]In reply, Ms Connolly , in relation to the issue of whether the first disclosure can amount to a protected disclosure, points out that this has not hitherto been pleaded, and she does not concede the point. In overall terms, however, regardless of that issue, she argues that all the evidence needs to be heard, when full disclosure has been given. Looking objectively at events at the time, and the fact that an investigation did commence in or around October 2014 , when officers had certainly, at the least, been asked questions prior to that, the only fair way to deal with the matter is to allow all the evidence to be heard without any pre-condition. The tribunal’s view on prospects of success.

[10]The legal argument aside, the tribunal does not consider that it is possible to consider the application in relation to these claims in isolation, as they elide very much into the next claims, and hence the tribunal will express its views upon the prospects of success of both claims together. Operation W – claim (ii).

[11]The tribunal turns now to the second claim said by the respondents to lack sufficient reasonable prospects of success, that of the claimant “being investigated” in October 2014 (erroneously referred to on page 5 of Mr Gorton’s skeleton as October 2015). This claim is made in para.10 of the ET1 (page 14 of the Bundle), and Item 7 of the Scott Schedule .

[12]This claim arises out of the claimant’s dossier, presented by him to HMIC in June 2014. This led, the claimant contends, to officers of GMP making enquiries into whether the officers referred to in the dossier compiled by the claimant had given their consent to the information that they had given being utilised in this way. The claimant contends that there was encouragement of these officers to make complaints against him.

[13]The claimant first raised this allegation in an e-mail (page 341 of the Bundle) of 3 November 2014 to Chief Superintendent Hull. He said that he understood that he was being investigated in relation to a complaint of corruption he had made to HMIC and the IPCC. He requested further information as to how this had come about and who had authorised the investigation.

[14]The reply to his e-mail is at page 342 of the Bundle. This was sent by Deputy Chief Constable Hopkins. He expressed surprise that the claimant was raising this issue, and sought to reassure him that there was nothing untoward in the enquiries that had been made, and why the individuals named in the file had been contacted, which he said was quite correct.

[15]Mr Gorton submits that the evidence shows that this action was clearly appropriate , and was unrelated to any of the proscribed grounds relied upon by the claimant. There were good, non – discriminatory or victimising, reasons for the enquiries that were made, and GMP were acting entirely properly in checking that the relevant individuals had given their consent to the claimant including their details in his dossier. He refers to the e-mail exchanges at pages 340 to 340h on this topic. That such enquiries were vindicated is demonstrated by the fact that 7 out of the 13 officers, when approached in this way, then declined their consent (see pages 351 to 352 of the Bundle). The facts show, he submits, that in carrying out these enquiries, and then referring the documents to the IPCC, the GMP was acting quite properly, and in no way were their actions anything to do with the claimant’s protected acts or race. There was no “investigation” of the claimant, as such, merely enquiries which were made for valid data protection reasons.

[16]For the claimant Miss Connolly submits that this is a classic instance of the tribunal being asked to make an assessment on incomplete material, when full disclosure has not been given, upon highly fact sensitive issues. The tribunal should hear the full story from the respondent’s witnesses to show that there were no improper motives at work. The tribunal’s findings on prospects of success of claims (i) and (ii) (x 4) .

[17]The tribunal notes the arguments of the respondents, and appreciates that they may well have some force. There are, however, it seems to the tribunal, some aspects of the evidence (which, of course, at this stage is not complete, and is the result of what could be considered selective disclosure, as full disclosure has not yet taken place) that cannot at this stage be said to be strongly indicative of the lack of prospects of success for these claims. (a) The Protected Disclosure detriment claims – the first disclosure.

[18]Dealing first with the claims based on protected disclosure, there seems to be no answer to the respondents’ contentions that the claimant’s disclosure to HMIC on 25 June 2014 (which is the first one he alleges that he made before 14 October 2014, his second one, which was to the IPCC) cannot amount to a qualifying protected disclosure, because of the status of the HMIC as neither the claimant’s employer, nor a qualifying body under the Act. To that extent, the tribunal accepts that the claimant would have little reasonable prospects of success in succeeding in his protected disclosure detriment claims in respect of any conduct on the part of the respondents between 25 June 2014 and 14 October 2014. (b) The Protected Disclosure detriment claims – the second disclosure.

[19]Thereafter, however, the position is different, as the respondents do not contend that the disclosure made to the IPCC on 14 October 2014 was not capable of being a qualifying disclosure. The claimant was, and remains, the Chair of the Black and Asian Police Association (“BAPA”). The dossier he submitted to HMIC, and then IPCC, was from that organisation.

[20]The evidence reveals that on 19 October 2014 ACC Dawn Copley, in an email to Det. Ch. Insp. Julian Findle, and Ch. Supt. David Hull (page 339a of the Bundle), was questioning whether the officers whose cases had been included in the dossier complied by the claimant actually knew that their cases were being referred to, and whether their views should be sought before the case was submitted to the IPCC. This was, of course, only 5 days after the claimant made his disclosure to the IPCC on 14 October 2014. It seems implicit in ACC Copley’s e-mail that she was aware of that disclosure, or at the very least there is an inference that she was.

[21]If, therefore , the claimant’s disclosure to the IPCC was a protected disclosure, and ACC Copley was aware of it, and any of the officers with whom she was communication thereafter also were, the burden of proving that the respondents’ actions in making the enquiries that they then did were not by reason of the claimant’s protected disclosure (see s. 48(2) of the ERA) . In essence, the respondents’ application in this regard seems really to be predicated on the argument that, if the burden of proof does shift, they will be able to discharge it.

[22]They may be able to, but there are a number of obvious enquiries that arise from even the limited documents that have been put before the tribunal. Of particular note, for example, is the evidence in the e-mail from Det.Ch. Insp. Findle at pages of the Bundle 340B to 340c of the Bundle , in which he sets out his “script” for how he proposes to carry out his enquiries with the officers involved, , or had probably already been doing so. This sets out a number of questions to be asked, in two sets of questions. ACC Copley, however, in an e-mail back to Det.Ch.Insp. Findle on 29 October 2014 (page 340d of the Bundle) sounded a note of caution, and suggested that the first set of questions made it sound that there was an investigation into BAPA about how they had put the dossier together, when there was not. She expressed the fear that this may be making a bad situation worse.

[23]The point is made by Miss Connolly that there is a strong and clear identification of the claimant, as its Chair, with BAPA. Hence any investigation into it could be seen to be an investigation into him. ACC Copley requested that the questions be reviewed. From the reply on 29 October 2014 (page 340a of the Bundle) it appears that this may have come too late, as the previous script (and possibly a letter in similar terms) had been already used, and it seems that some officers had already been questioned using the full set of questions that raised concerns on the part of ACC Copley.

[24]If ACC Copley could see how the manner in which the investigation was being conducted could be viewed as investigating BAPA, and hence the claimant, the tribunal cannot see how it can be said that the claimant has little reasonable prospect of success in contending that this was indeed what the investigation was truly doing, and that this was the result of his protected disclosure to the IPCC. In any event, the burden of proof would be on the respondents, and on these documents alone there are clearly issues where the respondents will have to explain the manner in which, and reasons for which, they carried out this (admitted) set of enquiries with these officers. (c)The other claims – direct discrimination, harassment and victimisation.

[25]Similarly, whilst the reversal of the burden of proof will not apply to the direct discrimination and harassment claims, until the claimant proves facts from which the tribunal could find that the reason for his treatment was his race, this will not the case for his victimisation claims. It is clearly the case that the claimant had (whether as qualifying disclosures or not) raised in the dossier sent to HMIC and the IPCC allegations of ongoing racism within the GMP. He had thereby done a protected act, quite apart from his previous protected acts of his prior tribunal claims.

[26]In the context of these claims the question will be whether the respondents will be able to satisfy the burden of proof when it shifts, as it will do in the victimisation claims. Further, whilst not automatically so, the tribunal considers that on the basic facts of the other two claims, direct and harassment, the claimant has at least reasonable prospects of establishing a prima facie case, so as to reverse the burden of proof.

[27]In those circumstances, for the same reasons as apply in the protected disclosure claims, the tribunal considers that the respondents will have to explain how there were non – discriminatory reasons for the fact and manner of the enquiries that they accept they made in October 2014. They may well succeed, once the full picture is available, and their evidence is tested in cross – examination, but on the basis of the limited material before the tribunal at present, the tribunal does not find that the claimant has little reasonable prospects of success on these claims. Operation W – claim (iii).

[28]The third set of claims in this Operation relate to service of a Regulation 16 Notice upon the claimant on 19 January 2015 (page 383 of the Bundle) . This was a Notice served under the Police (Complaints and Misconduct) Regulations 2012, akin to a Regulation 15 Notice, under the Police (Conduct) Regulations 2012, both sets of Regulations being contained in the Materials Bundle. The difference between the two sets of Regulations is that the former applies where there has been an external source of complaint. Such a Notice in effect, notifies an officer that he is subject to an allegation of misconduct or failure to meet standards of professional behaviour, and cautions the officer. The claimant was also warned in that Notice that if the allegations were proved before a Gross Misconduct Hearing, he could be dismissed without notice.

[29]The Reg.16 Notice in question was signed and served by Det. Insp. Michael Ryan of West Yorkshire Police. Mr Gorton’s submissions, and the documents in the Bundle show the process whereby that Force became involved, and the role that Det. Insp. Ryan took. The genesis of the investigation leading to the service of this Notice was an article in the Manchester Evening News on 25 January 2014 (page 389 of the Bundle) , which reported on the departure of two officers from the GMP following an alleged leak about an ongoing investigation.

[30]That report itself led to complaints by the two officers referred to in it that this information had been given to the MEN, itself another “leak”, a potential breach of professional standards, and improper disclosure. Under the combined effect of the provisions of Schedule 3 to the Police Reform Act 2002, and the 2012 Regulations, the investigation of these complaints was (and had to be) referred to an outside Force, in this instance the West Yorkshire Police (“WYP”). Mr Gorton took the tribunal through the provisions of the Act and the Regulations, and in particular para.19B of Part 3 of Schedule 3 to the Police Reform Act 2002. These provide for the investigating force to consider if the complaint should be the subject of “special requirements”, e.g. because there is possible criminal conduct, or potential disciplinary action. Under these provisions, the GMP was the “Appropriate Authority”, with whom WYP were obliged to consult. WYP were also obliged to, and did , conduct a severity assessment in relation to the actions of the claimant (and another officer) on or about 7 October 2014 (see pages 331 to 332 of the Bundle).

[31]Thereafter, pursuant to Reg.19(6) Mr Gorton submits, WYP served the Regulation 16 Notice on the claimant. He submits that the action of serving the Regulation 16 Notice was that of WYP, and not any of the respondents to the claims. The notice was the “creature” as he puts it, of WYP, and not GMP. The role of GMP was solely to be the “appropriate authority”, and to be consulted. Its agreement was not necessary for the service of the Notice upon the claimant. He submits that as a matter of law and fact service of the Notice cannot be the responsibility of the GMP.

[32]In the alternative, Mr Gorton submits that there were in any event good reasons for the service of the Notice, wholly unconnected with any protected acts or proscribed motives, and the claimant has no, or little, prospects of success in these claims in any event.

[33]In reply Miss Connolly refers to the disclosed documents. On 15 December 2014 (page 373 of the Bundle) there is an e-mail from Det. Insp. Ryan to GMP officers in which he refers to a “consultation with ACC Copley last week”. He goes on to refer to his “proposal” to serve the Notice on the claimant. He goes on to say: “With the agreement of the Appropriate Authority , we would seek to serve the officer with a notice at the earliest opportunity.”

[34]Miss Connolly points out that there are no disclosed notes or any other record of what was said in this consultation with ACC Copley. She also points out that agreement was apparently being sought, even if it was not necessary. It must therefore be the case that there is a real possibility that the GMP officers, particularly ACC Copley, had some influence upon the WYP decision to serve the Notice on the claimant. Further, as can be seen from page 437 of the Bundle, an e-mail from Simon Bottomley of WYP to ACC Shewan, there had also been a telephone conversation between the two officers in which ACC Shewan had asked questions as to whether it would be possible to establish or prove that the claimant had accessed operational files, or leaked information to the press. That may well indicate that this was not a neutral enquiry, but was the desired outcome that the GMP wanted from the investigation, and is evidence of their attempts to influence it

[35]Further, in due course, no further action was ever actually taken following service of this Notice. That , Miss Connolly submits, calls into question why it was ever served in the first place. The tribunal’s findings on prospects of success of claim (iii).

[36]Whilst taking Mr Gorton’s points into account, and accepting the strict legal position as to the respective roles of GMP and WYP in the decision to serve and actual service of the Regulation 16 Notice, the tribunal agrees with Miss Connolly that the claimant’s prospects of success cannot be so easily dismissed by this analysis. Whatever the legal position as to legal power of, and responsibility for, service of the Notice, there is an arguable case that the GMP had some influence upon that decision. The fact that there was consultation about this matter, but no evidence at all at present about what was said in this meeting, and possibly others, or other communications, leaves open the possibility, at least, of the GMP having some influence on the decision to serve the Notice. Add to that the fact that this consultation was with ACC Copley, an alleged discriminator, whose involvement at the highest level is a recurrent feature of the claimant’s case, and the fact that for two of the claims (the protected disclosure detriment and victimisation claims) the burden of proof will almost certainly be reversed, the tribunal cannot find that these claims have little reasonable prospect of success. Operation W – claim(iv).

[37]The final claims in Operation W relate to the respondents’ alleged failure to respond adequately to complaints that the claimant made about postings on Facebook and social media. Those claims are set out at Items 12 and 13 of the claimant’s Scott Schedule. The origin of the claims is an e-mail from the claimant to ACC Shewan, and DCC Hopkins of 19 March 2015 (page 393 of the Bundle). The claimant had been made aware of postings on Facebook sites associated to retired GMP Officers or staff, which were racist, both in relation to himself, and other BME communities. He complained in this e-mail of feeling further victimised by the GMP, and wanted to register a formal complaint as a victim of racism.

[38]The claimant claims that the response of the GMP to his complaint was direct race discrimination, harassment on racial grounds, victimisation for having raised matters relating to race, or detriment for having made protected disclosures, in other words that this failure constituted actionable wrongs on one (or more) of the four proscribed grounds.

Conclusions

[39]Mr Gorton’s submission is that these claims have little reasonable prospect of success. He sets out , and refers the tribunal to, the supporting evidence in the Bundle, of what the GMP did in response to his complaint. Firstly, it was registered as a “hate incident” on 31 March 2015 (pages 394 to 400 of the Bundle). Thereafter there was e-mail communication between 1 April 2015 and 8 April 2015 in which there was discussion as to how the deal with the complaint and the investigation into it. From that it is clear that the claimant was spoken to on 19 March 2015, as was a potential witness, Martin Harding, a retired Superintendent, who had brought the matter to the claimant’s attention. There was discussion as to how to access the offending sites, Martin Harding being reluctant to re-join them after what he had seen. There was discussion as to how access could be gained, without either obtaining authority under the provisions of RIPA, or someone accessing the site(s) as part of the investigation, via the administrator of the sites.

[40]A witness statement was taken from Martin Harding (pages 421 to 424 of the bundle) on 1 April 2015. The claimant’s allegations were discussed at a Gold meeting on 27 April 2015 (see pages 426 to 431 of the Bundle for the minutes), held specifically for that purpose. In particular there was discussion as to whether there was sufficient basis for a potential criminal investigation. Actions were discussed and noted, including review of NCRS guidance, and of the decision to determine whether the threshold for a crime or prosecution had been reached. The final action recorded was for ACC Shewan to review the CPS guidance, and to seek an independent third party opinion on the circumstances as presented.

[41]Consequently, advice was sought from Paul Giannasi, Head of the Cross - Government Hate Crime Programme in the Ministry of Justice. He provided that advice by e-mail on 22 May 2015 (page 436 of the Bundle) , which was not supportive of criminal proceedings being instigated, but he suggested that the CPS should provide any definitive view.

[42]Further, the respondents point out, there was an enquiry made of the Home Office as to whether the allegations made by the claimant should be treated as a hate crime, or a hate incident. The e-mail seeking that guidance was on 2 June 2015, and the reply came on 3 June 2015 (pages 475 and 476 of the Bundle). That advice , whilst somewhat qualified, was that it was appropriate to treat the case as a hate incident, and not a hate crime.

[43]Thus, submits Mr Gorton, the claimant has little reasonable prospect of successfully claiming that the response of GMP to his complaints amounted to any actionable form of discrimination or detriment. Indeed, he goes further and says that such a claim is without merit. Factually he says the claimant cannot succeed, and in any event, he is unable to demonstrate that these alleged failings had anything to do with the proscribed grounds.

[44]In reply Miss Connolly argues that there are issues of fact which remain to be determined. This can only be done once all the documentary evidence has been disclosed. What has been disclosed is, in some instances, redacted (see, for example, page 406 of the Bundle) without explanation. There are issues as to why the GMP did not do more to source the material that the claimant was complaining about, and expected him to do so. Whilst there is mention of obtaining advice from the CPS there is no evidence this ever occurred. In short, she submits that it is premature to seek to assess the prospects of success on limited disclosure from the respondents. The tribunal’s findings on prospects of success of claim (iv).

[45]On what is currently before it, the tribunal would agree that this is not one of the claimant’s stronger claims. He complains of omissions, in effect, failures to act, and to the extent that these are claimed to be detriments by reason of having made any protected disclosures, or victimisation, the burden of proof will be reversed. Without more, it may well be that the respondents will be able to discharge that burden if this is the totality (when any redaction has been removed, or justified) of the documentary evidence. That evidence, of course, is of limited value, as it will still be necessary for the individuals to explain the reasons for their actions or lack of them, to which the documents will be relevant, but not, of course, determinative. Given that these are alleged omissions, rather than acts, on the part of the respondent, and the evidence shows that there was some considerable discussion as to how to treat these complaints, not least because of the expected sensitivity of the claimant to the issue, the tribunal’s view is that the claimant will have, even allowing for the reversal of the burden of proof , something of an uphill struggle. In relation to these claims, therefore, the tribunal would be prepared at this stage, and on this limited information, to find that these claims have little reasonable prospects of success. B.Operation H – sole claim.

[46]The tribunal now turns to the one claim in respect of which a deposit order is sought in the Operation H claims, and that is the claim that the claimant’s removal from that Operation was a detriment for his having made a protected disclosure, and/or an act of victimisation for raising race claims. There are thus two proscribed grounds, and all three respondents seek deposit orders.

[47]The factual basis of the claims is not in dispute. The claimant had been working as the Disclosure Officer on Operation H. A decision was taken, however, to remove him from that role and redeploy him back to a Major Incident Team in the GMP, following the service upon him of the Regulation 16 Notice which is the subject of one of the claims in Operation W discussed above. (Note, there is frequent reference in the e-mail communications to a “Regulation 15” notice being served on the claimant. This seems erroneous, and must, it is presumed be reference to the Regulation 16 notice. Para. 59 of Mr Gorton’s Skeleton proceeds on that basis.)

[48]The named respondent Det. Ch. Supt. Horrigan is a Lancashire officer, for whom the other respondent is vicariously liable. That force was one of the participating forces in Operation H, and Det.Ch. Supt. Horrigan was Head of the Unit that was running Operation H. He requested that the claimant be removed as Disclosure Officer, and his reasoning is set out in an e-mail to ACC Shewan of 15 May 2015 (page 432 of the Bundle). ACC Shewan replied by e-mail of 20 May 2015 (pages 434 to 435 of the Bundle) in which he expressed his disappointment at the decision made by Det. Ch. Supt. Horrigan, and referred to the strong advice received from the CPS. For his part Det. Ch. Supt. Horrigan replied by e-mail of 12 June 2015 (page 477 of the Bundle) explaining , and indeed, probably quoting from, Counsel’s advice which was predicated, he said, on the misconduct allegations alone. Mr Gorton points out that the claimant’s account of how he was removed from this Operation, and the reasons he was given for this, are contained in an e-mail from him dated 19 May 2015 (pages 433a to 433b of the Bundle) , are consistent with the respondents’ case.

Summary

[49]Thus, Mr Gorton submits, there is ample evidence that the decision was nothing to do with any of the protected acts, or proscribed grounds, but was the result of Prosecuting Counsel’s advice, and hence the claimant has little reasonable prospects of success in these claims, and deposit orders should be made.

[50]In reply, Miss Connolly, in para. 26 et seq of her submissions, makes the point that, again, disclosure is incomplete, and some of the material supplied has been redacted without explanation. Evidence of meetings and telephone conversations has not been supplied, and she refers to an e-mail from DCS Jackson of 26 May 2015 (which does not appear to be in the Bundle) which suggests that GMP questioned the view of the CPS. She poses at para. 27 of her submissions a number of questions that she submits require answering before it can be accepted that the decision to remove the claimant from this Operation was discriminatory or on other proscribed grounds. Finally, she points out (para. 28 of her submissions) that Det. Insp. Dean of the Cheshire force was also served with a Regulation 15 notice. He, however, was not removed form the Operation. He does not share the claimant’s protected characteristic, nor had he done any protect act. This raises a difference in treatment which requires explanation.

[51]In reply Mr Gorton pointed out that Det. Insp. Dean was originally a respondent, but was dismissed from the proceedings, but otherwise did not respond any further to this specific submission, which the tribunal takes for these purposes to be factually correct. The tribunal’s findings on prospects of success of the Operation H claim.

[52]In relation to this claim, whilst the tribunal agrees that the claimant may appear to have a hill to climb, it may not be a mountain. Whilst appreciating Miss Connolly’s points, the fact that “something may turn up” seems very much to be the basis of the claimant’s prosecution of this claim. There is certainly nothing at present which would appear to assist him greatly , all the indications from the evidence thus far are indeed that the decision to remove him from this position was instigated by the advice of Counsel advising upon the conduct of the Operation, with a view to securing a successful prosecution. In the absence of any suggestion of any evidence that that was not the reason for his removal, the claimant may well struggle in this claim. That said, the evidence , as Ms Connolly submits, is far from complete.

[53]One aspect of the claimant’s submissions, however, remains unanswered, and that is the contention made (not challenged by Mr Gorton in his submissions) that Det. Insp. Dean, a Cheshire officer engaged on Operation H, was also the subject of a (or there may be more than one) Regulation 15 Notice, but was not removed from the Operation. The contention is made, again unchallenged, and highly likely to be the case, that this officer does not share the claimant’s protected characteristic (being white), nor had he done any protected act. He, however, appears to have been treated differently. It is appreciated that he is a Cheshire officer, and to that extent the GMP had no role in his potential removal or what would then become of him, but this is a potentially relevant factor in examining the reasons why the claimant was removed, but this officer was not, and the extent to which that decision was in any way influenced by the claimant’s race, or his doing of any protected act. It is further, the tribunal considers, a potentially relevant factor that one of the respondents Det. Ch. Supt Horrigan, gave evidence in the claimant’s previous tribunal claim, for the respondents to that claim, though he was not a respondent himself. He, and ACC Shewan for the GMP , also a witness in that case are highly involved in the decision and its ramifications. 52. Whilst Mr Gorton submits (para.60 of his Skeleton) that the “start and end point” of these claims against the second and third respondents is the e-mail of 15 May 2015 (page 432 of the Bundle), with all due respect to him, that cannot be right. The start point will be when the fact of the claimant being served with the Regulation 16 Notice was first brought up in the course of the preparation of, and seeking of advice upon , the prosecution that may result from Operation H, and why. It may be that it was noticed by the CPS or Counsel, and raised as a potential issue by them. It may be that it was specifically raised by either the GMP, or the second or third respondent, and advice was specifically sought upon it. At present, one cannot tell, nor is it apparent, why when a similar issue, in terms of service of a Regulation 15 Notice upon Det. Insp. Dean no such action was taken against him. 53. It is to be noted that Det. Insp. Dean was the fifth respondent to these claims, until he was removed following the preliminary hearing on 29 January 2016. The tribunal also notes that , as far as can be seen from the papers before it, this contention that Det. Insp. Dean was a potential “comparator” (it being appreciated that none is actually necessary for victimisation or protected disclosure claims) has not previously been made. The tribunal presumes, however, that Det. Insp. Dean’s role was not as a disclosure officer, and there is evidence that it was the fact that the claimant was, and the Regulation 16 Notice related to alleged leakage of confidential information, was an important factor in the decision to remove him from his role in the Operation. That said , the position with Det. Insp. Dean may have some bearing, and raises at the very least a question mark over the respondent’s case.

[54]That, however, does not mean that the claimant has more than little reasonable prospects of success on this claim. The preponderance of material currently available to the tribunal suggests that the respondents will be likely to be able to show non – proscribed reasons for the claimant’s removal, and this must remain something of a speculative claim. Whilst it cannot be , and is not, said to be, without any reasonable prospects of success, the tribunal is satisfied that those reasonable prospects are small. Summary of findings.

[55]Thus, the tribunal has found that, of the claims that are the subject matter of the application, in relation to Operation W, only the claimant’s detriment claims arising from his first alleged disclosure, which is unlikely to be a protected disclosure, can be said to have little reasonable prospect of success, and those relating to the failure to investigate his complaints arising from the social media postings. In relation to Operation H, the tribunal does find that the one claim (in the sense of factual scenario, in fact 6 claims in total two against each respondent) that is the subject of the application does indeed have little reasonable prospects of success. Should deposit orders be made?

[56]That does not mean, however, that the tribunal is obliged to make any deposit orders. It has a discretion. Counsel referred the tribunal to various authorities , chiefly: Sharma v New College Nottingham [

UKEAT/0287/11

] Anyanwu v South Bank Student Union and ors

[2001] ICR 391

Ezsias v North Glamorgan NHS Trust

[2007] ICR 1126

Van Rensburg v RBC of Kingston Upon Thames [

UKEAT/0096/07

] Wright v Nipponkoa Insurance (Europe) Ltd

UKEAT/0113/14

Sharma is relied upon by Miss Connolly in particular, as authority for the proposition that a tribunal should apply the same restrictive approach to applications for deposit orders in discrimination claims, as it would in strike out applications, as counselled in Anyanwu , and other cases in the same vein. She prays in aid the dictum of Wilkie J. at para.21 in Sharma that it would be illogical to require an Employment Judge to have a different approach depending on whether he (sic) is considering striking out, or making an order for a deposit, as either order is a potentially serious and fatal order.

[57]Mr Gorton submits that Sharma overstates the position, and that Ezsias and Van Rensburg demonstrate that in an appropriate case a deposit order can properly be made even in cases of alleged discrimination. He cites in particular the judgment of Elias, P. as he then was, at paras. 26 and 27, where he acknowledges the limited circumstances in which a strike out order would be appropriate where there are disputes of fact, but notes that the test for a deposit order is not as rigorous, and that a tribunal has greater leeway when considering whether or not to order a deposit.

[58]Van Rensburg pre – dates Sharma by some four years, and the former case was not cited in the latter. It is not suggested that this makes Sharma per incuriam, but this tribunal is faced with two apparently contradictory decisions of the EAT. That contradiction, however, is more apparent than real. As is clearly the case even with strike out applications, there is no absolute rule against making such orders, and hence, a fortiori , deposit orders in discrimination claims. All the caselaw makes it clear that it would be rare to make such orders in discrimination claims, or any claims where there are substantial disputed issues of fact, and caution is advised, but ultimately the decision whether or not to make any of these orders is one for the tribunal’s absolute discretion, and the caselaw can, and seeks, to do no more that assist tribunals in how to exercise that discretion.

[59]This tribunal therefore concludes , as was submitted, that fact that these are discrimination or whistleblowing claims does not preclude the tribunal from making such orders if it would otherwise be appropriate to do so, but accepts that it should be cautious before doing so.

[60]The tribunal accepts too Ms Connolly’s point that this is a fairly late application, coming as it does considerably after the claim was started, and when the matter is listed for a final hearing within the next 9 months. This is perhaps a paradoxical submission given that another factor she relies upon is that the application is premature, as there has not yet been full disclosure.

[61]Timing is a relevant consideration, the tribunal agrees, but there is nothing in the rule, nor the caselaw which requires a tribunal to decline the making of a deposit order because of the time at which any application is made. There remains adequate time for payment of any deposit , and the claimant’s other claims would be unaffected by the making of such an order whether he complies with it or withdraws the claims at issue.

[62]Deposit orders, of course, are not orders striking out claims, they are a “shot across the bows” , as it were , to a party, warning him or her that, if they persist in such claims, and fail in them, particularly for the reasons identified as being the reasons that they are likely to do so, they should expect to be penalised in costs. If made, therefore, such order may focus a party’s mind as to whether they really wish to advance a specific claim, by paying the deposit, of whether it is more prudent to abandon it. The risk, identified by Miss Connolly in her submissions, is that such orders may be used oppressively to intimidate a party into abandoning what may be perfectly valid claims.

[63]If a party against whom such an order is made does continue, the tribunal at the conclusion of the case, when findings have been made, will then determine whether, if unsuccessful, a claimant should be liable in costs. In reaching that decision, the fact that a deposit order was made would be highly influential.

[64]In terms of means, no real argument was advanced on behalf of the claimant that he , backed as he is by the Police Federation, lacks means to discharge any deposit order, and would be driven from the judgment seat by reason of impecuniosity. In her submissions (para. 36) , Miss Connolly contends that the fact the claimant is supported by the Police Federation should not be a determining factor in whether any order should be made. She argues that the tribunal “should still make reasonable enquiries” into the claimant’s ability to pay the deposit, and take this into account in fixing the level of the deposit.

[65]The crucial question is whether in all the circumstances the claimant should be ordered to pay a deposit as a condition of proceeding with these claims. This issue, of course, only arises in respect of these claims where the tribunal has found that the threshold condition of little reasonable prospects of success has been established.

[66]The tribunal has decided that there should be deposit orders in relation to the Operation H claim, but not in all of the claims for which they were sought in the case of the Operation W claim. Dealing with these in reverse order, the tribunal’s rationale for not making any order in relation to the first part of the claims in Operation W, that it has identified as having little reasonable prospects of success, the first protected disclosure, is that this is only a small, discreet and relatively minor aspect of the claims, taken as a whole in that case. In essence, the issue is whether the first alleged disclosure can amount, as a matter of law, to a protected disclosure, by reason of the body to which it was made. That is a short (and possibly uncontravertable ) legal argument. If successful, it precludes certain of the claimant’s detriment (but not discrimination) claims from succeeding by reason of the lack of an antecedent protected disclosure. The removal of that particular claim will have no effect at all on the evidence necessary to be heard, by reason of the ongoing discrimination claims, and the fact that the whole history of the claimant’s actions, and those taken against him during this period, is likely to be heard in any event. If the respondents’ contentions as to the non – qualifying nature of the first disclosure are correct, the claimant should concede that as soon as possible, so as to avoid unnecessary issues being put before the tribunal in the final hearing, but, other than to save what may be no more than a few minutes’ legal submission, the tribunal sees no point in, and that it would be disproportionate in, ordering the claimant to pay any deposit in relation to this small part of the claimant’s claims in Operation W.

[67]The position in relation to the fourth claim, the failure of the respondent to respond “appropriately” to the claimant’s complaints about social media postings is different. The tribunal has found that these claims have little reasonable prospect of success. They are a separate and discreet part of the claims. They carry forward, chronologically into 2015, and involve wholly new and separate issues. To that extent, consideration should be given as to whether they should proceed, and making them the subject of a deposit order appears to the tribunal to be a reasonable and proportionate step to take.

[68]The position in relation to the Operation H claim is different again. The claim here that the claimant’s removal from his post as disclosure officer from that Operation was because he had whislteblown, or was an act of victimisation for having made race claims, is a central and serious part of these claims. The tribunal has found that these claims have little reasonable prospects of success as it looks likely that the respondents will be able to show that the decision was taken , in effect by someone else entirely, and was not influenced at all by any of the proscribed grounds. There are grounds for making a deposit order.

[69]Turning to the issue of means, with all due respect to Miss Connolly, the tribunal is not an inquisitorial body, and the claimant is professionally represented. The claimant remains a serving Police Officer, and no information or evidence whatsoever as to his personal means has been adduced before the tribunal. The tribunal notes the requirement under rule 39(2) to make “reasonable enquiries into the paying party’s ability to pay” , but given the amounts sought (£200 on each claim in respect of each respondent), and the tribunal’s knowledge of the claimant’s status as a serving Police Officer, the tribunal does not consider it reasonable to make any further enquiries, particularly in the absence of any submission that the claimant would not be able to afford the sums sought, or any part thereof.

[70]The tribunal has considered what the effect may be upon the claims, of the claimant, should he choose not to pay the deposit, and withdraw these claims, abandoning this aspect of his claims. It seems to the tribunal that the claimant’s removal from Operation H would not totally cease to be a relevant issue, but it would be one that went to remedy in the other claims. The claimant complains in the Operation W claim of the service of the Regulation 16 Notice upon him, and this has been discussed above. No deposit order has been made in relation to that claim. It is open to the claimant, it seems to the tribunal, if he succeeds in establishing liability for the service of that Notice as being on proscribed grounds, to include as one of the consequences for which he is entitled to be compensated the consequential (as all respondents would seem likely to have to concede) removal from his post on Operation H.

[71]That does not, however mean that a claim which is potentially sustainable as a head of loss in one set of proceedings, should be pursued as a separate cause of action and claim in another , and if such a claim, qua claim, has little reasonable prospects of success, the tribunal should recognise that and make the appropriate deposit order, in the knowledge that if, thereby , the claimant is discouraged from pursuing it as a claim, he would not necessarily be deprived of reliance upon the same facts in relation to remedy , if successful in the other proceedings.

[72]Thus the tribunal is persuaded that it would be appropriate to make deposit orders in respect of one aspect of the Operation W claims, the failure to respond appropriately to the claimant’s complaints of social media postings, i.e. four claims, and in respect of the Operation H claims. In respect of this claim, or rather claims, as there are two bases upon which the claim is advanced, against three respondents, this makes a total of six claims.

[73]The tribunal has taken all the circumstances into account, and considers that it is proportionate, and fair to make these deposits orders in respect of these claims only. The amount sought for each claim is £200, and the tribunal will so order, so that the total deposits ordered will be £2000, having due regard to the principles set out in Wright v Nipponkoa Insurance (Europe) Ltd

UKEAT/0113/14

as to proportionality. Finally, whereas the former rule specified a period of up to 21 days for the payment of the deposit, the 2013 rules do not. No specific period was sought by the respondents, or argued for by the claimant. The tribunal therefore will adopt the former practice of 21 days, but will specify a date , for the avoidance of doubt. The claimant is free, of course to pay all, or some of it, but if he opts for the latter, he should specify in respect of which of the claims he is paying the deposit, so that it is clear upon which claims , if not all, he is proceeding, and which he is not.

[74]Mr Webster stated in that email that the issue here "is not the management of Paul Bailey or indeed Julie Barnes it is everything to do with the ongoing situation regarding Paul and the "never ending" Employment Tribunals and the incessant dispute between Paul and GMP". At one point he said it will only be resolved with the removal of Paul from the enquiry as per the instructions from ….. this was redacted. He stated that although there were management issues it was nonsense that that was why he was seeking to remove the claimant. He said if by way of example Paul had not been served with discipline papers and the Employment Tribunal had been resolved "it was anticipated that Paul's all encompassing obsession would have diminished and progress would have been made with a much more pleasant working environment, this had not happened due to recent events". The recent event in relation to Employment Tribunal was the fact that the GMP had appealed the decision.

[75]Dermott Horrigan replied saying "hope you feel better having got that off your chest", he went on to discuss support for Julie Barnes and said that they could not change the situation concerning DC Bailey and his fall out with GMP and he was seeking some clarity from Russ Jackson on GMP's position. ACC Copley then chased up Ian Rushton about the advice from CPS on 5 April.

[76]On 6 April ACC Copley set out her summary of the situation, part of which was redacted, she stated "I decided Paul could remain in situ at the outset, TITAN were unhappy - you met with them and the decision remained, then the QC was unhappy … redaction … ERGO completely frustrating what he had asked for. Sadly I think this is an ungracious and unedifying attempt to get his own way without having to put down his objections in writing and therefore be subject to challenge and scrutiny in due course". The "impasse" was referred to and she said that could not remain as Operational Holly had to progress. She said "so now it sits with the CPS to review what the QC has said so far and whether his position is credible and tenable, I am trying hard to divorce what I see as his unprofessional approach to this and the argument he makes which has some merit. She said until CPS had a chance to review they were at stalemate and she was hoping that WYP would progress and resolve their investigations", a reference to the Regulation 16 matter. It was recorded that Dermott Horrigan had been chasing up Mr Jackson who had explained they were waiting for CPS's opinion. Mr Jackson also noted that the CPS delay whilst not of their making might actually be helpful if the time afforded "declutters the WYP matter". It was again recorded that the claimant wanted to stay and they supported him in that. He was clearly expressing a hope that if the investigation into the leak came to a swift conclusion, the claimant would be able to stay on Operation Holly.

[77]On 17 April it was flagged up by Dermott Horrigan that a conference with Counsel on Operation Holly was required and that ACC Copley, DS Jackson and Elizabeth Bailey from CPS should attend at GMP's request (it later proved to be Elizabeth Jenkins) from CPS, that Laura Shuttleworth from the Legal Department should also be included. Carl Price contacted Dermott Horrigan directly on 1 May regarding the fact that the 8 June had been proposed as a date for a conference and he felt this was too late as the charging decision was being delayed because of the failure to resolve the situation. It was ultimately arranged for 15 May.

[78]On 1 May Mr Horrigan emailed Elizabeth Jenkins and Carl Price copying in John Webster and Tim Dean stating "I am quite clear in my view that Holly must not be endangered in any avoidable way and I am supportive of the proposed action going forward however I am sure you will agree with me when I say that GMP find themselves in a very invidious position in relation to this matter, whilst they concur with the overarching view that Holly cannot be undermined there are distinct difficulties for GMP wrapped up in this decision making that will only come into play at some point in the future - hence their desire to ensure that all decisions are fully considered. “ We find this was a reference to anticipated potential legal action the claimant might take following a decision to remove the claimant from Operation Holly.

[79]On 5 May ACC Copley stepped down from responsibility for Woodmay and associated issues passing them on to ACC Gary Shewan.

[80]On 6 May ACC Copley sent a long email to Gary Shewan as a handover on Operation Woodmay. She stated in this that she referred to a discussion with TITAN and said "we have challenged the CPS/TITAN's position and supported Paul remaining in situ, they remain unconvinced and negotiations have been difficult to say the least, we cannot allow Operation Holly to be undermined by the impasse and it needs resolving … as it stands the QC is refusing to have any dealings with Paul and as such this affects his willingness to give charging advice. The case is at a crucial stage and I have referred his comments, conduct and approach to CPS for their review and consideration. I have been most unimpressed with the QC and his approach to the whole issue, we have challenged his stance robustly but we remain in deadlock and the meeting on Monday is necessary to move this on. Paul's role must be resolved whether he is allowed to remain whilst under investigation or he is moved". We note that ACC Copley does not refer to the claimant's Employment Tribunal proceedings in this email, and nothing is redacted, solely to this Section 16 notice.

[81]From ACC Shewan's policy book and day book he records that there was an urgent need to reach agreement on whether PB can remain in his role as Disclosure Officer on Operation Holly, then there was some redactions and he said he asked his PA to arrange a phone call with Dermot Horrigan. On 8 May he stated "TITAN CPS and Counsel to seek discussion and agreement on the question of whether Paul should be removed, I explained I was out of the country until 15 May and so we agreed to hold the conference on that day, Dermott Horrigan was insistent that there was no other option than to remove Paul from the role".

[82]In respect of the meeting on 15 May Counsel's opinion was received on 14 May but this was completely redacted.

[83]Regarding the actual conference, part of the notes were again redacted. ACC Shewan stated that he wished to explore the rationale for removing PB from Operation Holly post and to allay any concerns that he may have on behalf of GMP. There was then considerable redaction. He noted "other points made by myself were to challenge the TITAN team as to whether their intention to remove PB was fair". In particular he said he had stated: "(i) were they applying similar decisions to other officers; (ii) as the damage had been done would they have to disclose PB's involvement which would involve some legal challenges, they envisage push back but we are required to act, the action is reasonable.

[84]He continued to question whether it was possible for someone to do four years worth in a matter of weeks,(this is a reference to some understanding that the claimant's disclosure role could be "covered by somebody else in a fairly short period of time as referred to by Russell Jackson earlier, here Mr Shewan was raising question marks about this from which we surmise that somebody again was suggesting that the disclosure could be checked or authorised by somebody else in a matter of weeks)" and ACC Shewan was clearly dubious about this.

[85]The claimant would refer to this as re-branding, i.e. a proposal that his work could be signed off by somebody else in a short period. We know as it turned out that in fact the disclosure was undertaken by two people over a considerable period of time subsequently.

[86]It was Elizabeth Jenkins' evidence to the Tribunal that she advised a removal of the claimant from Operation Holly on the basis of the Section 16 notice but not on the basis of the ET proceedings as she felt these could be managed by prosecuting counsel. The claimant submitted that Elizabeth Jenkins was an unsatisfactory witness as she was unable to answer a significant question of questions under cross examination, the respondent stated that she was an eloquent witness when speaking of matters within her knowledge and memory. We do accept her evidence on the reasons for her view that the claimant should be removed as this was supported by Mr Shewan's email which we will refer to below.

[87]ACC Shewan then went on to say "following a discussion I asked DH and PB for a short period of time to consider the discussions and ask clearly what they were asking me to decide, DH made it clear that the decision had been made and that it was his decision alone to make, as a result of this I asked for three things:(i) to consider fairness;

(ii) to reflect the views of Elizabeth Bailey (this was a reference to Elizabeth Jenkins) and a policy decision that the decision to remove PB from the post was on the grounds of the investigation alone and

(iii) that GMP is present when TITAN informed PB of their decision. At the end of the meeting I agreed with RJ (Russell Jackson) that he and Danny Inglis would be present when PB was informed by TITAN.

[88]At 8.25 on 15 May Mr Horrigan emailed Mr Shewan stating "as per your request to me to share my rationale with you concerning my decision to remove DC Bailey from the role of Disclosure Officer on Operation Holly please see the following "I have read the advice from Ian Unsworth QC and Steven MacNally Prosecuting Counsel on Operation Holly relating to the role of Disclosure Officer, my position has until now been undertaken by DC Paul Bailey, the advice was relatively brief in relation to the ongoing situation, specifically addresses the appropriateness of D C Bailey continuing in the role of Disclosure Officer for this case as it progresses towards prosecution and quite clearly states that a new Disclosure Officer be appointed".

[89]He goes on to say "quite rightly Mr Unsworth states he makes no judgment upon the merits of any litigation between D C Bailey and GMP, past or present, nor the current investigation being undertaken by West Yorkshire Police, I too adopt the same position. Looking at this advice from an independent position it would not only be foolhardy to continue with D C Bailey as Disclosure Officer in the face of this advice but, from my understanding, it would likely result in the prosecution not progressing due to the issues articulated by Counsel. As such I see no alternative to a new Disclosure Officer being appointed by the SIO and D C Bailey taking no further part in this investigation or prosecution. I have relied upon the contents of the advice as I believe it continues to remain relevant and germane and do not believe it requires any additional narrative".

[90]On the 18 May Mr Dean advised the claimant of his removal .He advised him this was because of the Regulation 16 notice and this is corroborated by the claimant’s own record of this meeting.

[91]On 20 May Mr Shewan replied to Mr Horrigan saying he wished to reiterate the matters that he had raised with him at the conference on Friday. "My understanding of the advice provided by Liz Jenkins during the conference call was that the concern from the prosecution was that DC Bailey has been served with a notice under Regulation 15 of the Police (Conduct) Regulations 2012 notifying him that his conduct is being investigated and may amount to gross misconduct. Further, that the investigation is in connection with a leak of information outside of Greater Manchester Police. I understood Liz's advice to be very clear - that whilst the defence in the criminal prosecution resulting from Operation Holly may seek to conduct their own open source research on D C Bailey and ask him questions about what they find relating to his Employment Tribunal claims this could be managed by the prosecution and D S Bailey would not need to be removed from his role however I am persuaded by Liz's advice that D C Bailey cannot remain the role of Disclosure Officer in the light of the Regulation 15 notice. (Again this is a reference to Regulation 16).

[92]Mr Horrigan replied on 12 June and he stated that "the reason I didn't go into such detail was due to the fact that Counsel's advice specifically referred to the basis of its advice being "whether the DO could properly fulfil his obligations when he is subject of allegations that he has leaked sensitive material to third parties". This plainly makes it clear that the QC predicates his advice on the misconduct allegations and not other issues. I acknowledge that the advice contained references to the ET matters as potentially presenting some prosecutorial difficulties but I considered these to be background commentary, as such I maintain my position that the decision to remove D C Bailey from the role of DO is based on the advice clearly outlined by Mr Unsworth, that he cannot fulfil his Disclosure Officer obligations due to the misconduct allegations made against him".

[93]Mr Horrigan in evidence confirmed that the Regulation 16 matter was the reason in his mind for the claimant's removal, we found Mr Horrigan a compelling witness and we note that the claimant had a high opinion of him. However clearly he was quoting directly from the advice in his email of 12th June and we accept that is an accurate reflection of his thinking, we have borne in mind that he did not refer to CPS's advice but we do not think this is fatal to the conclusion regarding the Regulation 16 matter as the email describes the situation in relation to Regulation 16 matter in any event. Further the quote establishes that the reason for the Q.C’s opinion was not just the fact the claimant had been served with a regulation 16 notice but the reason for it, as the reason was highly relevant to the credibility of the role he had on Holly.

[94]Meanwhile the claimant had been informed of his removal as Disclosure Officer on 18 May. The claimant's record of this stated that "D I Dean stated that as a result of Counsel's advice he D I Dean had made the decision that D C Bailey's position as Disclosure Officer on OP Holly was untenable. The advice related to the gross misconduct investigation into D C Bailey, D I Dean said that D C Bailey was removed from Operation Holly with immediate effect". It is recorded that the claimant asked to seek Counsel's advice but this was refused but then D I Dean said he would seek clarification whether he could do that. DCS Jackson stated that GMP were not persuaded by the CPS argument that D C Bailey's position in relation to Police corruption and his view on ethics within the GMP would be harmful to any trial. GMP were persuaded by the advice with regard to D C Bailey's misconduct investigation being fatal to his continued role as Disclosure Officer within OP Holly".

[95]DCS Jackson stated that even if D C Bailey was exonerated in the gross misconduct investigation he still would not be able to act as Disclosure Officer within OP Holly as the same issues raised in the advice would still apply. There was then a discussion about whether a further notification of restriction of duties was required which stated he could not work on Operation Hollly. The claimant recorded that he had said that he was finished in GMP as he could not be involved in any type of investigation. DCS Jackson disagreed and stated there were levels to D C Bailey's restriction, on a high profile case such as Operation Holly D C Bailey could not be involved but in lower level cases the reason of the DC's removal from Op Holly would not apply. D C Bailey disagreed and stated he needed to see the advice and the notification of restricted duties. It was later confirmed that the claimant could see the advice but not keep a copy of it.

[96]The claimant was allowed to see this advice on 22 May, he stated that the advice was based on two main premises, "the first being that I had taken my employer GMP to an Employment Tribunal and had won and as such I would make a poor witness for the prosecution as I would speak truthfully about my trust in GMP and as such that it was not felt that I would speak favourably about GMP under cross examination, and the second being that I would not be able to carry out my duties as Disclosure Officer because I would be forced to explore my own gross misconduct investigation (which is itself the subject of a separate Tribunal claim). In short there was an implicit suggestion I would be incapable of discharging my duties as a Disclosure Officer fairly or within the law". We accept the claimant's evidence that the QC's advice at this later stage referred to both matters.

[97]The claimant refused to engage in any discussions about him taking up another position within GMP. An email from Julian Flindle of 27 May to the claimant's Police Federation rep stated that the grounds for the restriction being imposed were "this is based upon the decision by TITAN and not GMP the decision caused consultation between TITAN, CPS and Counsel. GMP have engaged in a joint discussion with these parties and made its view known however the decision remains theirs. We are therefore issuing a new notice based upon their decision and the impact this has had in Paul's deployment and the validity of the restrictions initially imposed". It was also recorded that "CPS have taken the view that on the fact Paul is under investigation for gross misconduct and consider this has made his role as Disclosure Officer untenable".

[98]On 28 May Tim Dean sought the permission of Dermott Horrigan to order the claimant to report to Nexus House and to remain there pending his new posting, and to exclude his access to Urmston Police Station where Operation Holly was based. Russ Jackson communicated with the claimant on 29 May to try and discuss a placement with him but again he declined and in the end Russ Jackson made a decision that he should move to Major Incident Team, Syndicate 3.

[99]The claimant then brought this Tribunal claim. Initially there were other respondents but ultimately there are now just the three, GMP, Mr Horrigan and Lancashire Police as Mr Horrigan is one of their officers.

[100]Following this the claimant issued his own MG11 making various complaints about Tim Dean. In it he also said that Ian Unsworth QC had committed a crime of perverting the course of justice by saying that the claimant should not be a witness. The claimant believed that this was intimidation of a witness.

[101]As a result of the allegations the claimant made against Tim Dean, Tim Dean was served with a Regulation 15 notice at which as referred to earlier is what occurs when an officer makes a complaint about another officer. He was not removed from Operation Holly. These allegations were investigated by North Wales Police and he was exonerated in respect of all the allegations.

[102]It is relevant to note as well that as part of a later striking out/deposit order application by the first respondents they sent a letter of 12th December 2016 to the Tribunal which the claimant would later rely on, in particular the following parts. The section on the Holly claim and facts states that: "The facts are relatively straightforward and are in fact largely recounted in the ET1:(i) the claimant was assigned by GMP to work on a TITAN operation namely Holly, the claimant's senior reporting officer was D I Tim Dean, both TITAN and D I Dean were formerly respondents in this claim and the claim against both had been withdrawn and dismissed on withdrawal.

(ii) DSC Horrigan was the operative Head of TITAN.

(iii) Upon the service of the Regulation 16 notice GMP had expressly decided (as Appropriate Authority) required no restrictions on the claimant's role in Holly as Disclosure Officer.

(iv) Subject to any issues of legal and professional privilege which of course reside in the Crown Prosecution Service (CPS) and therefore what is stated here in no sense represents a waiver of that privilege that is and remains a matter for the CPS to waive (if so advised) on 17 February 2015 Leading Counsel (Ian Unsworth QC) instructed by CPS expressed his view that the service of the Regulation 16 notice was incompatible with the claimant's continued role as Disclosure Officer in Holly. That as advice was repeated by Leading Counsel in March and then the subject of a formal written advice dated 14 May 2015 again expressing the view that the claimant's role in Holly should terminate, the advice involved two considerations: (a) that the claimant’s previous bringing of proceedings against GMP would undermine potentially his role as Disclosure Officer and (b) that being under investigation for gross misconduct compromised the claimant's role as Disclosure Officer

(v) GMP in fact resisted and objected to any such suggestion made by leading Counsel through ACC Copley and to its rationale they had imposed no such restrictions on the claimant's role when the notice was requested by WYP (West Yorkshire Police). Eventually GMP requested that any decision should be reviewed and taken by the CPS who instructed Counsel.

(vi) the claimant remained in his role pending a decision by CPS.

(vii) at the meeting on 15 May 2015 with a senior CPS lawyer Ms Jenkins represented GMP including ACC Shewan and TITAN including DCS Horrigan, Ms Jenkins rejected Counsel's ground (a) rationale above for removing the claimant, Ms Jenkins however formed the view that rationale (b) was compelling and that the claimant's role as Disclosure Officer could not continue in the light of the service of the notice.

(viii) As a result of the CPS's view concurring with Counsel, TITAN agreed with and followed the advice of Counsel and the CPS and formed the same view that the claimant's role as Disclosure Officer could not continue. DCS Horrigan explained the rationale but was ultimately TITAN's decision in an email to ACC Shewan on 15 May 2015 expressing the view that it would be unwise not to follow the advice of counsel when if that course was followed the prosecution would be likely not to progress.

(ix) The decision was conveyed to the claimant by D I Dean on 18 May and on 22 May D I Dean permitted the claimant to read Counsel's advice.

(x) The claimant was subsequently transferred out of TITAN and into GMP's Major Incident Team.”

[103]The letter later states under the heading “Points Applicable to all Respondents”: “The decision to remove the claimant from Holly was taken by TITAN and D S Horrigan based on the advice from Counsel and CPS. GMP were therefore compelled to remove the claimant and in turn assign him to other duties. Neither the CPS (nor Counsel instructed) were the servants or agents of either respondent and no such case is advanced by the claimant. In the circumstances the claim or allegation that GMP was responsible for the claimant's removal from post is mis-conceived ….”

[104]ACC Shewan was questioned about this in Tribunal and appeared to confirm that both A and B had been taken into account however the questioning of ACC Shewan was unfair at this stage as his attention was only drawn to the letter up to paragraph 5 and not the subsequent paragraphs which set out a sequence of events which resulted in only B being the operative issue. Accordingly we are satisfied that as recorded in ACC Shewan's day book and his emails that the only issue which GMP believed the claimant could be transferred out of Holly on was the Regulation 16 matter. Disclosure CPS Manual

[105]The claimant also relied on CPS guidance on the Disclosure Officer which he said suggested that removing him as Disclosure Officer was a complete over reaction and unjustified. He relied on the guidelines in respect of when an officer himself should report himself to CPS. The manual states that in the introduction "details of disciplinary and criminal proceedings against police officers who are witnesses might be disclosable under the act, in addition there may be exceptional occasions when the interests of justice require that other information is revealed to the prosecutor and disclosure considered". It further states that at paragraph 6, disciplinary procedures which have not been completed should be revealed by the officer to the prosecutor which was the situation the claimant was in in respect of the West Yorkshire investigation, although paragraph 19 muddies the waters by saying "when an officer has been notified under Regulation 9 of the Police Conduct Regulations of allegations made against him he or she is not required to reveal to the CPS details of the allegations, if disciplinary proceedings are commenced Police Officers making statements should inform the prosecutor of details of all matters with which they have been charged but where the proceedings have not yet been completed.

[106]There was also a flow chart which did not refer to un-completed disciplinary proceedings and therefore suggested that these did not have to be reported to CPS however the situation here is that it was reported to the QC involved by someone, whether it was CPS or TITAN is not 100% clear.

[107]However it was correct to report the matter in accordance with the explanatory notes; the explanatory notes stated that "where an officer has been notified of allegations made against him but he is not suspended from duties he is not required to reveal to the CPS the details of the allegations however the Head of Professional Standards Department should consider in liaising with CPS Unit Head whether the interests of justice require the revelation of that information and provide the prosecutor with the information if required". It ends with duties to reveal and disclose must be observed scrupulously, failure to do so may result in wrongful conviction, undeserved acquittal or misconduct proceedings against the prosecutor or Police Officers. The Law Victimisation

[108]Section 27 of the Equality Act 2010 sets out the definition of victimisation. It is as follows:-(i) a person (A) victimises another person (B) if A subjects B to a detriment because (a) B does a protected act or (b) A believes that B has done or may do a protected act.

(ii) each of the following is a protected act: (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act and (d) making an allegation whether or not express that A or another person has contravened this act and must not do so in prohibitive circumstances which under Section 39(4) provides that an employer (A) must not victimise an employee of A's (B) as to the terms of B's employment or in the way A affords B access or by not affording B access to opportunities for promotion, transfer or training or for any other benefit, facility or service or by dismissing B or by subjecting B to any other detriment.

[109]No argument was made in this case regarding detriment and therefore we do not describe the law in relation to detriments. Causation

[110]It is clear the detriment must be because of the protected act, in the Chief Constable of West Yorkshire Police -v- Khan 2001 House of Lords the Chief Constable maintained he refused to give a reference to a Police Force to which K had applied for a post because he did not want to prejudice his position in a case of race discrimination against West Yorkshire Police. The Court of Appeal held that the refusal was by reason of the fact that K had brought proceedings in the sense that if K had not brought proceedings he would have been provided with a reference. However the House of Lords rejected this "but for" approach to victimisation. While it was true that the records that were held by reason that K had brought the race discrimination claim in a strictly causative sense the language used in Section 21 of the RRA was not the language of strict causation, rather it required the Tribunal to identify the real reason for the treatment complained of. The Court concluded the real reason for the refusal to provide the reference was that the provision of a reference might compromise the Chief Constable's handling of case being brought about West Yorkshire Police which was a legitimate reason for refusing to accede to the request.

[111]In Derbyshire -v- St Helens MBC 2007 the House of Lords looked at the interpretation of the phase by reason that in Section 41 of the Sex Discrimination Act (these cases predate the Equality Act) which concerned allegations of victimisation in the context of ongoing legal proceedings where the Council had sent a letter to all the claimants setting out the dire consequences of their equal pay claims to the Council's budget.

[112]The House of Lords said that while the test adopted by the Court in Khan of whether the employers conduct was honest and reasonable could be a convenient way of determining whether the statutory test is satisfied, it was no substitute for statutory tests, then contained in Section 4(1). In the Derbyshire case the claimant's claims of victimisation was successful. The decision was based on the fact that the Council had gone further than was reasonable to protect its interests in the litigation. In St Helens the bringing and continuance of the equal pay proceedings was unarguably the motive for the Council's letters, in Khan the employer refused to do something for fear or prejudicing its position in litigation. If they had done that in order to persuade the claimant to give up his claim the results were likely to have been different.

[113]In Martin -v- Devonshire Solicitors 2011, in that case the claimant made allegations that one of the firm's partners had said that she was after the partner's money and another had called her a prostitute, she brought a grievance which was dismissed, the respondent then took disciplinary proceedings against her for making false allegations but withdrew these when a Consultant Psychiatrist said she had a depressive illness with psychotic episodes during which she experienced paranoid delusions but dismissed her later on the basis of the breakdown in the relationship of trust and confidence.

[114]The EAT considered what was the reason for M's treatment was it the fact that she brought Tribunal proceedings in respect of the original accusations (she brought a sex discrimination claim). The EAT took the view that there could in principle be cases where an employer has dismissed an employee or subjected him to some other detriment in response to the doing of the protected act but where the employer could say that the reason for the dismissal was not the complaint as such but some feature of it which could possibly be treated as separable, the EAT recognised that such a line of argument was capable of abuse but this did not mean it was wrong in principle.

[115]We recount this case law as it was referred to by the claimant's representative however the respondent never relied on a Khan - type argument that the reason for the respondent's actions were motivated only by protecting Operation Holly from operational failure and were based on the advice of Counsel/CPS by the respondent i.e. that the respondents were protecting Operation Holly from operational failure and that any proceedings brought by any officer in similar circumstances would have resulted in the same reaction of the claimant's Employment Tribunal proceedings should be seen in a context unrelated to the fact that the proceedings concerned race discrimination.

[116]The protected act need not be the sole reason for the treatment but it must have a significant influence on it, Nagarajan -v- London Regional Transport 1999 House of Lords. It was defined in Igen -v- Wong Court of Appeal 2005 as an influence which is more than trivial.

[117]The claimant also referred to the case of Pasab Limited -v- Woods 2012 which stated that the reason why a person acts as she did was a question of fact, it is not open to a Tribunal to accept the subjective reason put forward by the alleged discriminator as a matter of fact and then impute some different reason to her based on the Tribunal's objective assessment of a remark or its meaning.

[118]Neither is there any need in a victimisation case for conscious targeting. Burden of Proof

[119]Under Section 136 of the Equality Act 2010 says that(i) this section applies to any proceedings relating to a contravention of this act,

(ii) where there are facts from which the Court could decide in the absence of any other explanation that a person (A) contravened the provision concerned the Court must hold the contravention occurred.

(iii) Subsection (2) does not apply, they show that A did not contravene the position.

[120]The case law in respect of the burden of proof has been set out in cases of Barton -v- Investec Henderson EAT (2003), Court of Appeal in Igen Limited -v- Wong (2005), finally in Madarassey -v- Nomura International plc HL (2007). The Barton/Igen guidelines stated that "it is for the claimant to prove on the balance of probabilities facts from which the Employment Tribunal could conclude in the absence of an adequate explanation that the respondent has committed an act of discrimination, if the claimant did not prove such facts the claim will fail.

[121]There were a number of other guidelines in those cases including of course the Tribunal should consider drawing inferences from matters not related to the factual matrix in the case before them, but indirectly related, for example that a respondent had failed to follow their normal procedure in respect of dismissal.

[122]However recently in a case of Efobi -v- Royal Mail Group Limited EAT 2017 Mrs Justice Laing stated that relying on burden of proof as described above in Igen and Burton was erroneous where it led to imposing an additional burden of proof on the claimant. She said Section 136 required the Tribunal to consider all the evidence from all sources and at the end of all the evidence decide whether or not there were facts on which the Tribunal could conclude the respondent had committed an act of discrimination.

[123]If they can do so ignoring the explanation from the respondent then matters moved to the considering the respondent's explanation and whether that was free of any discrimination.

[124]In other cases such as Laing -v- Manchester City Council 2006 EAT it was said that if the Tribunal is satisfied with the reason given by the employer as being genuine and did not disclose either conscious or unconscious racial discrimination that is the end of the matter i.e. there was no need to consider whether the burden of proof shifted. Police officers as employees and Agency

[125]The engagement of a Police Officer in UK law is not employment, it is the holding of an office and therefore a Chief Officer of a Force is not the employer. However, in order to ensure that individuals can bring discrimination claims it is deemed to be an employment relationship for the purposes of the Equality Act. This is set out in Sections 42 and 43 of the Equality Act which say that 42 Identity of the employer: (i) for the purposes of this part holding the office of Constable is to be treated as employment - (a) by the Chief Officer in respect of any act done by the Chief Officer in relation to a Constable or appointment to the office of Constable and (b) by the responsible authority in respect of any act done by the authority in relation to a Constable or appointment to the office of Constable… 43 - Interpretation (i) this section applies for the purposes of Section 42(2) Chief Officer means (a) in relation to an appointment under a relevant act the Chief Officer of Police for the police force to which the appointment relates (b) in relation to any other appointment the person under whose direction and control the body of Constables or other persons to which the appointment relates is (c) in relation to a Constable or other person under the direction and control of a Chief Officer of the Police that Police Officer of Police; (d) in relation to any other Constable or any person the person under whose direction and control the Constable or other person is;

[126]The respondent contends this means that where a Chief Officer does an act or omission which is a breach of the Equality Act to an officer deemed to be his or her employee under Section 42 and that act or omission is done in respect of an officer who is under the Chief Officer direction or control, the Equality Act will apply.

[127]The respondent contended that if GMP had not committed any acts i.e. if they were not the decision maker they were not liable under Section 42. Further, if Mr Horrigan had made the decision to dismiss the claimant as he was employed by Lancashire Police, (third respondent) but the claimant was employed by respondent 1 there was no liability on respondent 3 for acts done to an employee of respondent 1 under Sections 42 and Section 43.

[128]The claimant submitted that under Section 109 the Chief Constable of Lancashire Police was liable as the employer of Mr Horrigan if the Tribunal found Mr Horrigan had made the decision to dismiss, or that he was acting as agent of the Chief Constable of the third respondent under the scope of their authority for the purposes of 109 and that Mr Horrigan was liable under Section 110 as an employee or agent. The claimant was employed by the first respondent and therefore there is no liability on the third respondent for acts done to an employee of the first respondent under Sections 42 and 43.

[129]Section 109 says the liability of employers and principals:(i) anything done by a person (A) in the course of A's employment must be treated as also done by the employer;

(ii) anything done by an agent for the principal with the authority of the principle must be treated as also done by the principal.

(iii) it does not matter whether that thing is done with the employer or the principal's knowledge or approval.

(iv) in proceeding against A's employer B in respect of anything alleged to have been done by A in the course of A's employment, it is a defence for B to show that B took all reasonable steps to prevent A from doing that thing or B from doing anything of that description. (i) a person A contravenes this section if (a) A is an employee or agent (b) A does something which by virtue of Section 109(1) or 109(2) is treated as having been done by A's employer or principal and (c) the doing of that thing by A amounts to a contravention of this act by the employer or principle. (ii) it does not matter whether in any proceedings the employer is found not to have contravened this act by virtue of Section 109(4).

[130]The claimant also relied on the decision of the Commission for Metropolitan Police -v- Weeks EAT 2011 where the EAT upheld a Tribunal's decision in the situation where a Police Constable was under the immediate direction of the City of London Police but was employed by the Commissioner for Metropolitan Police, it was concluded that the City of London Police were acting as the employer for the Commissioner of Metropolitan Police Authority when making decisions regarding employment matters and therefore that the Commissioner was liable for the acts of discrimination committed by the City of London Police.

[131]In Weeks it was said to be authority for the proposition that "an agency can exist between the Chief Officer of the Police and someone else, even though that someone else is an officer and even though that officer is an officer under the direction and control of another Chief Officer and it was said that the test should be whether the alleged "agent" had the express or the implied consent of the claimant's Chief Officer to make the decision that he did in respect of the claimant's employment. The decision had to be in relation to something of a nature of employment and in this case it concerned a refusal of a flexible working request however it was recognised that if that refusal was an operational decision i.e. if it was because of short staffing on particular occasions it might fall outside of the employment relationship. Weeks referred to the case of the Chief Constable of Cumbria -v- McGlennon EAT 2002 however McGlennon does not specifically address this point rather it is concerned with establishing that the Chief Constable has responsibility for the actions of one of his or her employees acting in a line management capacity in relation to another employee.

[132]The claimant submitted that an agency could exist between Lancashire Police and the claimant even though he was under the control of another Chief Officer namely Greater Manchester Police.

[133]However that was not the situation in Weeks, the situation in Weeks was that Commissioner for Metropolitan Police (CMP) was still liable for the actions taken by the City of London Police (CLP) as CLP were acting as an agent for CMP who were the claimant's employer. Weeks could be authority for the first respondent being liable for the second respondent’s actions even though he was not their employee. European Law

[134]The claimant also submitted that under European Law (specifically the equal treatment directive which is concerned with employment and working conditions) the claimant should be given a remedy where the domestic legislation failed to provide one i.e. if the above agency argument was rejected.

[135]The claimant relied on Jessemey -v- Rowstock Limited 2014 Court of Appeal, this case considered the situation regarding post employment victimisation following the Equality Act 2010. It had been raised with the Government prior to this case by various bodies that the 2010 Act had failed to reflect the settled position at law that post employment victimisation was unlawful. This was as a result of two cases, Coote -v- Granada Hospitality EAT and ECR 1998 and Rhys Harper -v- Relaxion Group House of Lords 2003. However for some reason the way in which Equality Act 2010 was drafted it excluded this provision. The Court of Appeal in the Jessemy case took the view that this was a drafting error as post termination discrimination and harassment was included and it was clear that the settled position at law was that it was a matter which was actionable. The Court referred to the explanatory notes which included post termination for victimisation and the fact there was no indication there was any intention to exclude it. The decision was based on it being a drafting error and that the correction of the drafting error was allowed by the case of Inco Europe -v- First Choice Distribution 2000 House of Lords. Accordingly we did not find this case particularly helpful and we were not referred to any other case law.

[136]It was stated that in the claimant's submission that the directive requires a remedy against the third party who was not a person's employer but who was responsible for the discrimination. The Tribunal must give effect to the principles of the European Court of Justice and the directive, the claimant must be given an effective remedy for discriminatory treatment.

[137]It is relevant to note in McGlennon it was said at paragraph 48 that judgment, "nor in our judgment can it be argued that the difficulties in the way of a Police Constable bringing such a claim can be overcome by saying they are a barrier within the domestic legislation that can be disregarded and dis-applied as being incompatible with directly affected community rights which is the exception acknowledged by Mummery J in the Court of Appeal to that basic position (in Biggs - v- Somerset County Council 1995 Court of Appeal). The reason that a Police Officer whose claim is outside the limited scope of Section 17 was unable to bring discrimination proceedings against the Chief Constable under the act is nothing to do with any procedural or qualifying barrier of the kind referred to by Mummery J inhibiting the exercise of a right act otherwise provides. It is much more fundamental one that under the general law of England and Wales a Police Officer is not an employee at all and so is outside the protection of the provisions about discrimination employment all together and the absence of express positive provision to extend "employment to him or her artificially", the direct effect of a community instrument confers no separate jurisdiction on the Employment Tribunal to alter a Police Officer's status in law or create new positive rights or remedy for discrimination outside those legislation provides. If there is an infringement of the directive that is a matter for Parliament or possibly for a Court having inherent jurisdiction but not something for the Employment Tribunal. The principal state was summed up in that case as the major issue of principal of his, i.e. the Chief Constable's potential liability under the Sex Discrimination Act 1975 for management decisions taken by his subordinate officers on such matters as recruitment and posting". Parties’ Submissions

[138]The parties’ submissions were mainly given in writing with some oral additions the more significant had been recorded above in the legal section, where relevant the parties’ more detailed submissions will be referred to in our conclusion. It was agreed throughout that the issues we had to decide were:(i) who took the decision to remove the claimant from Operation Holly;

(ii) what was the reason in the Decision Maker's mind for this decision and

(iii) if the decision was materially influenced by a prescribed motive i.e. that the claimant had done a protected act were any of the respondents responsible for that act in law. Conclusions Protected Acts

Conclusions

[139]In respect of the protected act the respondents submitted that only the proceedings in 2009 and the proceedings in 2012 could be considered protected acts, the first protected act that the claimant was a member and chair of BAPA could not be a protected act.

[140]We find that the BAPA activities were not a protected act for the purposes of this claim. No reference at all was made to them particularly to any activities which may have influenced any potential decision maker amongst the witnesses. It was not put to them in cross examination that the claimant's activities with BAPA had any influence on their decision making. It was put to them in chief by their own Counsel and they denied it. No detail was provided. Accordingly we discount that as a protected act, the other two matters clearly stand as protected acts.

[141]If we are wrong on this, it is plain that none of the potential decision makers were influenced by this matter. Who was the Decision Maker?

[142]We consider the claimant's submissions which were discursive rather than analytical and we sought to ascertain from those submissions what were the findings of facts the claimant stated we should make in respect of this issue and why and any matters from which we should draw inferences generally or in relation to the findings of fact.

[143]The claimant says that we should find that this was a decision of Greater Manchester Police on the basis that; - the events showed a pattern of TITAN waiting for GMP to agree with their position before implementing any decision, the fact that there had to be a meeting with GMP before the decision was actually implemented i.e. the 15 May decision, that GMP must be involved because he was not removed on TITAN's say so alone, John Webster's evidence he would have done it immediately and felt it should be done at a lower level, that on 1 May Dermott Horrigan says to Elizabeth Jenkins and Carl Price "I am sure you will agree with me when I say that GMP find themselves in a very invidious position in relation to this matter, whilst they concur with the overarching view that Holly cannot be undermined there are distinct difficulties for GMP wrapped up in this decision making that will only come into play at some point in their future, hence their desire to ensure that all decisions are fully considered."

[144]The claimant says that had it just been TITAN's decision to remove and they would have done so on service of the Regulation 16 notice the clear frustration of Horrigan, Webster and Dean was apparent, they wanted the claimant out but ACC Copley stood in their way, therefore the Tribunal should find that the decision to remove the claimant was in reality a joint decision, the 15th May meeting was convened for all parties to discuss the way forward and the strategy book of Shewan refers to the urgent need to reach agreement. The claimant submits Mr Shewan was the ultimate Decision Maker, he refers to Mr Horrigan's evidence that although GMP initially had reservations about the decision taken to remove D C Bailey predicated upon earlier ET's or disputes all parties including GMP ultimately concurred that Counsel's advice removed D C Bailey to preserve the integrity of the prosecution.

[145]The respondents submitted that Mr Shewan's day book and policy book showed that on 15 May Mr Horrigan told Mr Shewan he was not required to make any decisions as he, Mr Horrigan, was going to make the decision and he had made it that the claimant would be removed. The respondents state that TITAN was seeking agreement as a professional courtesy and further that the Shewan and Horrigan's email exchange took following 15 May show that the decision was Horrigan's.

[146]The claimant says that this is all a sham and devised so that GMP would not have any liability for any further discrimination or victimisation complaints, however we do not accept the claimant's proposition in this regard.

[147]In our view the evidence shows that the parties were seeking to reach an agreement but that ultimately it was an operational decision made by TITAN. We find this on the basis that Mr Webster first floated the issue in January 2015 i.e. that the service of the Regulation 16 notice might cause prosecution problems and in raising that he was acting directly as a member of the TITAN senior management team. Further, we do not accept that Mr Shewan has recorded matters erroneously in his day and policy book. This was good evidence that at the time Mr Horrigan did say it was his decision and made the decision. However ACC Shewan states in his email of "I am persuaded by Liz's advice that DC Bailey cannot remain in the role of Disclosure Officer in the light of the Regulation 15 notice” .. he also says "I would have preferred for you to have deferred your decision …. but I understand as far as you were concerned the decision had been made". That this is corroborated by the later emails. In fact is better evidence than the email exchange (which the claimant attacks as being artificial in order to establish no connection between GMP and the decision) as it is in a document filled in consecutively day by day therefore not open to amendment.

[148]In addition GMP would have to be involved to some extent as they would have to take the claimant back and it would have been extraordinary if TITAN had simply made the decision and reported it back to GMP giving them no notice and leaving their officer in limbo.

[149]If we are wrong on this and GMP were involved in the decision we would find that the reason why GMP made that decision was entirely because of the Regulation 16 point and not because of the Employment Tribunal proceedings, we discuss that further below as it is absolutely clear from ACC Shewan's email of 16 May. What was the reason for the decision to remove the claimant from his role as Disclosure Officer?

[150]The claimant stated that we should consider that the fact he brought Employment Tribunal proceedings for race discrimination had a significant influence on the decision maker's mind because first of all it was disproportionate to consider that the Regulation 16 matter should cause his removal as Disclosure Officer, and this was clear from the fact that the GMP had not considered this was necessary at the first instance, that the CPS guidelines in respect of this show that this did not need to be reported to the prosecutor, that Dermott Horrigan's first email following 15 May clearly referred to the Employment Tribunal proceedings and to Counsel's advice rather than CPS's advice. Further Counsel's advice it can reasonably be concluded referred to both matters whereas it suggested that CPS's just refers to the Regulation 16 matter. In any event the claimant submitted the Tribunal should discount Elizabeth Jenkins’ wholly unreliable evidence that this was her view and that she was not concerned about the Employment Tribunal proceedings. In addition Dermott Horrigan's second letter still did not refer to CPS's advice, further that there was a flurry of activity after the outcome of this case which suggests that his Employment Tribunal proceedings had an influence on the decision making process from that date onwards, that it would be absurd to suggest that Ian Unsworth based his decision purely on material he had elicited from a Google search, that Webster's email complaining about the claimant being difficult to manage was indicative of the Employment Tribunal proceeding causing TITAN a problem and Regulation 16 was a convenient way of getting rid of that problem.

[151]Finally the fact that Tim Dean was not removed when served with a Regulation 15 notice strongly suggested that the claimant's ET proceedings were an influence on the decision rather than it being entirely based on the Regulation 16 matter as the service of a similar notice had not caused another officer involved with the investigation to be moved.

[152]Further, that in relation to the respondent's letter to the Tribunal seeking Deposit Orders ACC Shewan had agreed that the reason for the decision to move the claimant was Counsel's advice regarding both issues. However, we have recorded above that the question was unfair and that we are satisfied that the contemporaneous documentary evidence from Mr Shewan demonstrates that the issue for GMP was the Regulation 16 notice.

[153]The respondents rely on the fact that Mr Horrigan and Mr Dean knew about the claimant's proceedings since 2013/2014 and did not see the Employment Tribunal proceedings as an issue at all and the email trail clearly shows that the Regulation 16 is what "kicked off" TITAN seeking Counsel's advice, Counsel threw into that mix the ET proceedings but this was not what TITAN was concerned with and the Tribunal should accept Mr Horrigan's evidence that the reason for his decision was the Regulation 16 matter. This was reflected in his email of 12 June to Gary Shewan that Mr Shewan's email reflects the rationale in the meeting of 15 May and further, that Mr Bailey's own email recording what happened on 19 May recalls that the reason given was entirely to do with Regulation 16 and there was an express rejection of any connection with the Employment Tribunal matters. In addition it was submitted that the respondents were happy with the claimant's work as a Disclosure Officer and that by removing him they were undoing some years of work that had been put in to that role. Therefore this is not something they wished to do or did lightly and from the evidence of the senior Operational Officers attending the Tribunal it is clear that they did not think the disclosure could be signed off simply by somebody else. Further, the Regulation 15 notice did not require Tim Dean's removal as it did not go to the root of his role which it did in the claimant's case as the actual allegation concerned the leaking of information when he was in charge of assessing which information should be disclosed.

[154]We find on the balance of probabilities that the Regulation 16 matter was the reason for Mr Horrigan's decision based on his final email of 12 June and his oral evidence - we have noted we found him a compelling witness. We rely also on the fact that the reason conveyed by Mr Dean on 18th May to the claimant for his removal related to Regulation 16 only. We accept that counsel’s advice referred to the tribunal proceedings but not that that was the reason for Mr Horrigan’s decision. Regarding Mr Horrigan’s failure to refer to C.P.S’s advice we do not consider that determinative as to what was in his mind as we have said in our findings of fact.

[155]Further, our finding is based upon the clear thrust of the emails we have seen starting with Mr Webster's in January when the Regulation 16 notice was first served . The email trail shows that the Regulation 16 matter was the thing that started the ball rolling for TITAN and not the claimant's Employment Tribunal proceedings. It cannot have been the Employment Tribunal proceedings as Mr Horrigan and Mr Dean had known about the proceedings for a considerable time as they were witnesses in those proceedings. Clearly those proceedings did not concern them at all during the whole of this time from the beginning of the claimant's Tribunal until the issue arose in 2015 regarding the Regulation 16 matter. In addition when Mr Webster does raise the claimant's Tribunal proceedings to Horrigan, Horrigan's response shows him unconcerned about the effect on Operation Holly of the claimant's Employment Tribunal proceedings.

[156]In addition we have accepted the evidence that a view was expressed by the Q.C. that the claimant could not stay as disclosure officer as early as 26th January entirely on the basis of the Regulation 16 matter.

[157]Further, regarding Tim Dean's Regulation 15 notice we accept there were differences of material significance between his situation and the claimant's. Neither do we accept the claimant's submissions that removing him was wholly disproportionate as the Regulation 16 matter was really quite trivial, particularly as GMP did not see the need to serve a notice. Having seen West Yorkshire Police's report it can be seen that there was in fact quite a serious matter involved in his particular Regulation 16 – again it was not just the Regulation 16 notice but the reason for it which was the issue. The Claimant also relies on the fact the C.P.S manual did not require the notice to be referred to at all, however we do not accept this as it requires professional standards to consider and report it.

[158]We have possibly strayed into Woodmay territory here but as the claimant relied on these matters in submissions in relation to fact finding and inferences we have fully considered them and explained why we have not accepted them or find they are balanced by other factors.

[159]Further, whilst there was some suspicion in the first respondent's mind that TITAN wanted to "return the claimant because he was difficult to manage" we are satisfied this was not a matter concerning Dermot Horrigan as exemplified in his response to John Webster's email of 31 March.

[160]Accordingly given our finding that the Employment Tribunal Proceedings were not a significant influence on the decision maker’s – Mr Horrigan’s - mind the claimant’s claim of victimisation fails and is dismissed.

[161]If we are wrong on this and he made the decision based on both issues then it would be true to say that the Employment Tribunal proceedings were a significant influence on the decision.

[162]In respect of ACC Shewan if we were wrong that GMP had nothing to do with the decision it is absolutely clear from his email of 20 May that his "decision" was entirely based on Elizabeth Jenkins's advice and he relied solely on the matter of the Section 16 notice therefore it was not because of any protected act. Therefore the claimant's claim would fail on this basis as well as against the first respondent. Who was legally responsible for Mr Horrigan's acts?

[163]If we are wrong on the above and Mr Horrigan was significantly influenced by the Employment Tribunal proceedings for race discrimination in making his decision to remove the claimant from Operation Holly then an issue arises as to who is liable for that victimisation?(1) Could GMP be responsible for Mr Horrigan's actions (as far as we can ascertain the claimant's submissions do not refer to this however we consider it prudent to consider it). We have considered this as this seemed more in all fours with the Weeks case however we would distinguish it from Weeks on the following basis. Firstly that in Weeks the matters which referred to were an issue arising out of the normal employment relationship. Here this was a clearly operational matter and we believe this would take it outside of Weeks. Further there would be an issue regarding consent in this case as insofar as TITAN sought GMP's consent to remove the claimant it was only given (and we do not accept it was given or sought on the 15 May) on the basis of the Section 16 Notice and not on any other basis and accordingly if Mr Horrigan considered the Employment Tribunal matters he was acting outside any authority.

(2) Lancashire Police. The cases cited by the claimant of Weeks and McGlennon appear to us not to be on all fours with this situation, as we have referred to above in McGlennon the Chief Constable at issue was the same Chief Constable as employed the line manager and the claimant. In Weeks it was an issue of a third party acting as agent for the actual employer of the claimant. This is not the situation here. Mr Horrigan was an employee of Lancashire Police but the claimant was not and accordingly does not fall into the factual scenarios in those two cases. In accordance with Sections 42 and 43 the third respondent cannot be liable in respect of the claimant as he is not their employee by virtue of those sections as those sections require the complainant to be an employee of the Chief Constable respondent. Mr Horrigan cannot be personally liable under Section 110 as his employer, the third respondent, is not liable under Section 109 as the claimant is not an employee of the third respondent. Mr Horrigan was acting for TITAN when he made an operational decision in relation to the claimant. TITAN are not a respondent nor is its managing police force Merseyside Police, nor did either of those entities employ the claimant European Law

[164]We have indicated above that we found Jessemey again not on all fours with this situation here but would refer to the paragraph quoted from McGlennon suggesting that the reality is that liability for acts of discrimination has been carved out of domestic law which would otherwise limit liability because a Police Constable is not an employee and that European law says nothing about when an individual should be an employee or not and no case law at all was cited to us in relation to this. Accordingly there appears to be no remedy in European Law for a claim arising out of the definition of the employment relationship in UK domestic law.

[165]It is plainly unfair to the claimant or anyone else in his position that no respondent is liable where there are proven discriminatory acts against him/them in this situation. The problem possibly could be resolved by a formal agreement being entered into in future between all the relevant Police Authorities where an operation such as TITAN is set up that ensures there is a liable employer at the end of the day.

Conclusion

[166]Accordingly the claimant's claim of victimisation fails and is dismissed.

Summary

[1]The claimant’s claims of public interest disclosure detriment and/or direct race discrimination and/or racial harassment and/or victimisation relating to social media are dismissed on withdrawal.

[2]The claimant’s remaining claims of public interest disclosure detriment and/or direct race discrimination and/or racial harassment and/or victimisation are not well-founded and are hereby dismissed.

[3]In the event the claimant wishes to pursue an application for written reasons or the respondent wishes to pursue a costs application the Employment Tribunal Is to be notified by 6 April 2018. Signed by _______________________ on 23 March 2018

[1]The claimant’s claim of race discrimination was unsuccessful as set out in a judgment promulgated on 6 October 2017. On the morning of the hearing the claimant's representative on his behalf withdrew his protected disclosure claims. Deposit orders had been made in the claimant's claims of protected disclosure detriment and victimisation under the Equality Act 2010 following a hearing on 29 March 2017. The claims subjected to a deposit order were:(a) The claimant's removal as Disclosure Officer from Operation Holly was an act of detriment on the part of the first respondent for having made a protected disclosure;

(b) The claimant's removal as Disclosure Officer from Operation Holly was an act of victimisation on the part of the first respondent for having done a protected act relating to his protected characteristic of his race;

(c) The claimant’s removal as Disclosure Officer from Operation Holly was an act of detriment on the part of the second respondent for having made a protected disclosure;

(d) The claimant’s removal as Disclosure Officer from Operation Holly was an act of victimisation on the part of the second respondent for having done a protected act relating to the protected characteristic of race;

(e) The claimant's removal as Disclosure Officer from Operation Holly was an act of detriment on the part of the third respondent for having made a protected disclosure;

(f) The claimant's removal as Disclosure Officer from Operation Holly was an act of victimisation on the part of the third respondent for having done a protected act relating to his protected characteristic of race.

[2]The facts were that the claimant was acting as a disclosure officer on Operation Holly when he was removed the claimant says because the counsel to Operation Holly became aware that he had brought successful claims against the respondent, and that the respondent also was content to remove him for the same reasons. Indeed the decision was made soon after press reports regarding his first claim which was successful before Judge Holmes.

[3]The respondent stated the reason for his removal was that the claimant had been served with a Regulation 16 because of concerns he had “leaked information given to him by the Police Federation, which should not have been given to him, to the press. Because the issue could potentially reflect badly on his role and leave him vulnerable to attack by the defence, potentially leading to the prosecution’s collapse, it was necessary to remove him”. (The claimant had a separate claim regarding the Regulation 16 matter). The respondent argued the Claimant’s removal was following advice from CPS based on the regulation 16 matter and not on the claimant’s discrimination claims against the respondent. An argument which was not developed in the preliminary hearing.

[4]It was said, in the preliminary hearing held by Judge Holmes when the deposit orders were made, in relation to these proceedings: “In relation to this claim whilst the Tribunal agree that the claimant may appear to have a hill to climb it may not be a mountain. Whilst appreciating Ms Connolly’s points the fact that ‘something may turn up’ seems very much to be the basis of the claimant’s prosecution of this claim. There is certainly nothing at present which would appear to assist him greatly. All the indications from the evidence thus far are indeed that the decision to remove him from this position was instigated by the advice of counsel advising on the conduct of the operation with a view to securing a successful prosecution. In the absence of any suggestion of any evidence that this was not the reason for his removal the claimant may well struggle in this claim. That said the evidence, as Ms Connolly submits, is far from complete.”

[5]We note that in fact because of the advice of counsel was redacted, as required by CPS, the evidence in our hearing regarding what counsel’s advice was had to come via the oral and written evidence of Mr Horrigan and others. It was not clear, and seemed unlikely to us, that at the time of the preliminary hearing Employment Judge Holmes anticipated that this would be the case; rather he would have envisaged that counsel’s advice would be disclosed and that it would show the true reason for his removal was the Regulation 16 matter.

[6]Employment Judge Holmes continued: “One aspect of the claimant’s submissions, however, remains unanswered: that is the contention made that Detective Inspector Dean, a Cheshire Officer engaged in Operation Holly, was also subject of a regulation 15 notice but was not removed from the operation. The contention is made, again unchallenged and highly likely to be the case, that this officer does not share the claimant's protected characteristic (being white) nor had be done any protected act. He, however, appears to have been treated differently. It is appreciated that he is a Cheshire officer and to that extent the GMP had no role in his potential removal or what would then become of him, but this is a potentially relevant factor in examining the reasons why the claimant was removed. This officer was not, and the extent to which that decision was in any way influenced by the claimant's race or his doing of any protected act. It is further, the Tribunal considers, a potentially relevant factor that one of the respondents, Detective Chief Inspector Horrigan, gave evidence in the claimant’s previous Tribunal claim for the respondents to that claim though he was not a respondent himself. He and ACC Shewan for the GMP, also a witness in that case, are highly involved in the decision and its ramifications.”

[7]Employment Judge Holmes also went on to point out that Detective Inspector Dean might not be a proper comparator because he was not possibly a Disclosure Officer as was the claimant. Indeed this is what we decided at the full hearing.

[8]On the first day of our hearing the whistle-blowing claims were withdrawn with no explanation. Today Mr Lewinski ( who did not appear for the claimant at the preliminary or substantive hearing) ventured an explanation but without specifically saying he had instructions or without producing any evidence to substantiate the reason. He submitted that they added very little and it was simply a different legal way of saying the same thing as the victimisation claims, and that establishing whistle-blowing was more “legalistic”, accordingly it was appropriate to withdraw them. Other explanations were possible such as a view was taken by the counsel instructed on the substantive hearing that the claimant was unlikely to be able to establish that his disclosures were protected. However we have no verifiable explanation.

The Law

[9]Rule 75(1)(a) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2003 read with rule 76 gives the Tribunal the power to make a costs award against one party to the proceedings to pay the costs of another party.

[10]The grounds for awarding costs are as follows: (1) That a party or a party’s representative has acted vexatiously, abusively, disruptively or otherwise unreasonably in the bringing or conducting of proceedings or part thereof…The Employment Tribunal decides an allegation or argument for substantially the reasons given in an earlier deposit order – rule 39(5).

[11]Rule 39 in relation to deposit orders states that: “It an Employment Tribunal decides that any specific allegation or argument in a claim or response has little reasonable prospect of success it may make an order requiring a party to pay a deposit not exceeding £1,000 as a condition to advance that allegation or argument.”

[12]Rule 39(5) provides that: “If the Tribunal decides the specific allegation against a party for substantially the same reasons given in the deposit order then that party shall be treated as having acted unreasonably in pursuing the specific allegation or argument for the purposes of rule 76 unless the contrary is shown.”

[13]In Dorney & others v Chippenham College [1997] EAT the EAT said: “There should not be a fine tooth comb approach to a comparison between the reasons for making the order at the pre hearing review and the reasons leading to a finding against the claimant. This equates to a presumption of unreasonableness but that does not mean the Tribunal will automatically make an order because of rule 76(1).”

[14]Rule 76(1) requires the Tribunal to make a decision as to whether the conduct was unreasonable: “The decision on costs is a two stage process. The Tribunal must ask itself whether a party’s conduct falls within rule 76(1)(a) and if so it must go on to ask itself whether it is appropriate to exercise its discretion in favour of awarding costs against a party.”

[15]In Barnsley MBC v Yerrakalva ( 2011) CA the court was considering the previous rule 40 and said: “A vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and in doing so to identify the conduct, what was unreasonable about it and what effects it had.”

[16]The case of Kesker v Governors of All Saints Church of England School [1991] EAT stated there was a fundamental obligation on a party to proceedings to have regard to the merits of their claim not form a legal perspective but from the perspective of what they were alleging could be correct: “The question of whether a person against whom an order for costs is proposed to be made ought to have known that the claim he was making had no substance is plainly something which is at the lowest capable of being relevant.”

[17]In Khan v Heywood & Middleton Primary Care Trust [2006] Court of Appeal, the Court of Appeal stated that: “Whether conduct could be characterised as unreasonable required an exercise of judgment about which there could be reasonable scope for disagreement amongst Tribunals properly directing themselves.”

[18]In Health Development Agency v Parish [2004] EAT, the EAT stated: “Where a Tribunal has found a party has conducted proceedings unreasonably it must examine carefully what costs are attributable to that unreasonable conduct.”

[19]Although this was refined in McPherson v BMP Paribas [2004] Court of Appeal by Judge Mummery stating that this was not authority for the proposition that costs must be specifically attributable to specific incidents, he had since clarified it in Yerrakalva: that the unreasonable conduct must be identified.

[20]In respect of quantum, a Tribunal should consider the means of a funding party when considering the ability to pay (Benyon v Scadden [1999] EAT). The Employment Tribunal has the power to make indemnity costs also as referred to in Benyon v Scadden, and the ability to pay may be relevant but it is not a decisive factor.

[21]In respect of deposit orders, if the reason the claimant lost his case is the same as the reason given by Employment Judge Holmes this is, as referred to above, deemed unreasonable conduct unless the claimant can demonstrate the contrary. The Tribunal still has the ability to exercise its discretion; Oni v Unison [2014] EAT provided guidance on this.

[22]In Hamdan v Ishmail [2017] EAT it was said that: “A deposit order has two consequences. First a sum of money must be paid by the paying party as a condition of pursuing or defending a claim. Secondly, if the money is paid and the claim pursued it operates as a warning rather like a sword of Damocles hanging over the paying party that costs might be ordered against the paying party (with the presumption in particular circumstances that costs will be ordered). Where the allegation is pursued and the party loses there can accordingly be little doubt in our collective minds that the purpose of a deposit order is to identify at an early stage claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs ultimately if the claim fails. That, in our judgment is legitimate because claims or defences with little prospect of success cause costs to be incurred and time to be spent by the opposing party which is unlikely to be necessary. They are likely to cause both wasted time and resources and unnecessary anxiety. They also occupy the limited time and resources of Courts and Tribunals that would otherwise be available to other litigants and to do so for limited purpose or benefit.”

[23]In summary, the procedure is to identify whether the claimant comes within section 76(1) or the deposit order presumption applies so that the Tribunal does have the power to award costs, and the second to decide, the power having arisen, whether it is appropriate costs in the particular case.

[24]In relation to a costs order, rule 78(1) states: “A costs order may –(a) Order the paying party to pay the receiving party a specified amount not exceeding £20,000 in respect of the costs of the receiving party;

(b) Order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party with the amount to be paid being determined in England and Wales by way of a detailed assessment carried out either by a County Court in accordance with the Civil Procedure Rules 1998 or by an Employment Judge applying the same principles…

(c) Order the paying party to pay the receiving party a specified amount as reimbursement of all or part of a Tribunal fee paid by the receiving party;

(d) Order the paying party to pay another party or a witness as appropriate a specified amount in respect of necessary and reasonably incurred expenses;

(e) If the paying party and the receiving party agree as to the amount payable it will be made in that amount.”

[25]Rule 78(3) states: “For the avoidance of doubt the amount of a costs order under subparagraphs (b)-(e) of paragraph (1) may exceed £20,000.” Respondents’ Submissions

[26]The respondents submitted that the reason for the deposit order was the same reason as the Tribunal found against the claimant; the reason being that the service of the regulation 16 notice rendered the claimant remaining on Operation Holly as Disclosure Officer untenable, and that was borne out by the communications between the relevant employees.

[27]In respect of discretionary factors, the respondents submitted that Employment Tribunal should exercise its discretion and make an award as that was the purpose, and if a costs order was not made in this case there would be little point in having a deposit order regime and spending the time at a preliminary hearing deciding the matter. The respondents submitted that it was clear:(1) The claimant knew the reason for his removal from Operation Holly was his regulation 16 notice and confirmed and corroborated that in his own email on 19 May 2015.

(2) The claimant was able to view and digest counsel’s opinion as to the reason for his removal and expressly refers to this in his ET1 paragraph 19.

(3) The contemporaneous document made it overwhelmingly clear why he was removed, and this commenced in January 2015. All this was flagged up to the claimant and his advisers through the pleadings, at the preliminary hearing in October 2016 and set out in a letter of 12 December 2016.

[28]The respondents sought a detailed assessment of their costs under rule 78(1)(b).

[29]The respondents pointed out that the last minute withdrawal meant the claimant avoided the cost consequences of having a deposit order made in relation to his whistle-blowing claim, and it had to be assumed that the claim had no merit or else he would not have withdrawn it. The same thinking applied in relation to the whistle-blowing claim as the victimisation claim in respect of Employment Judge Holmes’ decision at the deposit hearing.

[30]In addition, the respondents pointed out the following:(1) That Greater Manchester Police had always argued the decision maker did not take the decision to remove the claimant from Operation Holly and therefore could not possibly be held in respect of the claimant's claims. This was always reflected in the contemporaneous evidence, particularly the documentary evidence from ACC Copley resisting the claimant's removal from Operation Holly.

(2) The claimant's argument that the email correspondence was a sham was unconvincing.

(3) Greater Manchester Police could not be held legally liable or responsible for the acts of Mr Horrigan, who was not acting on their behalf as he was acting for TITAN and therefore Greater Manchester Police should never have been a party to the proceedings.

(4) As regards Lancashire Police and Mr Horrigan, legally neither could be held responsible for the claims of the claimant even if he had succeeded with his claim of victimisation, as he was employee of Greater Manchester Police and was never an employee of Lancashire Constabulary. They should never have been party to these proceedings either. Claimant's Submissions

[31]The claimant's representative submitted that it was not unreasonable to pursue either case as the matter was complex; it was not clear what the QC had said due to the extensive redaction of documents and other emails, so that oral evidence had to be relied on and it was possible that cross examination would clarify things in the claimant's favour. If the Tribunal had formed a different view of Ms Jenkins the outcome may have been different. Her evidence, the Tribunal suggested, was not wholly reliable. Discrimination cases are fact sensitive in any event.

[32]At the heart of the discrimination was the opinion of the QC and no written advice was ever available, and although the claimant had seen it on one occasion he was not allowed to keep it. With the redactions it was not clear how far his view was informed by the fact that the claimant was bringing claims against his employer or purely the regulation 16 matter. Some of the individuals who gave evidence to the Tribunal had previously been involved in the claimant's Employment Tribunal proceedings and therefore there was a possibility that knowledge of his actions and their involvement could have influenced their actions. Their evidence needed to be tested and the timeline needed to be tested also given the redactions. Findings in discrimination cases are highly based on credibility and inferences rather than simply the primary evidence. The claimant also had a good claim in respect of Mr Dean, who was a reasonably good comparator albeit the Tribunal drew a difference sufficient for him not to stand up as a comparator.

[33]In respect of the deposit order it was agreed that the reasons for the final judgment were broadly similar to the reasons for the deposit order being made. It was submitted that it was still reasonable to go ahead for the reasons given above and because although the claimant was clearly cognisant of the reasons being put forward by the respondents, he was entitled to take the view that the email correspondence was a sham, either in whole or in part, in order to protect the parties against a discrimination claim.

[34]There was evidence as well pointing to the claimant's Tribunal proceedings having some influence on the minds of those he was interacting with, for example the reference to the difficulties of managing him.

[35]It was also pointed out that if the Tribunal sent the costs order assessment it would have no control over the percentage of the costs incurred to be awarded, as it is often the case the Tribunal might indicate costs should be awarded from X date or 50% of the costs should be awarded because X reason. For example, should costs be awarded just from witness statement exchange if the position was clear from that point, particularly in view of the redaction in the documentation?

[36]It was submitted in respect of the whistle-blowing that the whistle-blowing added very little to the claim; it was a different way of saying the same things but was more legalistic and took the claim no further, neither did the respondents incur additional cost to a large extent in relation to whistle-blowing as all the same evidence was given; there was no removal of any of the paragraphs from the witness statements.

[37]It was submitted that the fact that it was difficult to ascertain who was legally responsible if there was any discrimination should not count against the claimant. It was unfair on the claimant that it was not easy to identify who was responsible for any discrimination, etc. Surely someone should be liable? In fact, it was an appealable point but the claimant had chosen not to appeal. Reply

[38]The respondents replied saying that the redaction had never been challenged and this had been known since the exchange of documents, and that there was no verification of the reasons given for the withdrawal of the whistle-blowing claim. Conclusions Whistle-blowing withdrawal

[39]We are satisfied that it was unreasonable conduct within the meaning of rule 76 for the claimant to withdraw his whistle-blowing claim so late. We cannot make this decision on the basis of the deposit order as pointed out by the respondents, however we make it on the general provision of unreasonable conduct and in doing so refer to the hearing on the deposit order as detailed guidance was given by Employment Judge Holmes on how he saw the weaknesses in the claimant's claim at that point in time. The claimant should have been aware that if he had formed the view with legal advice his claim was weak on the morning of the hearing this view could have been formed many months earlier following the deposit order hearing. The claimant was legally advised throughout.

[40]Having established the power to award costs arises, therefore, we have considered secondly whether it is appropriate to award costs and we find that it is given the content of the preliminary hearing in March, the claimant's access to legal advice and the failure to provide a verifiable reason for the late withdrawal..

[41]As to what those costs in respect of whistle-blowing comprise of, we have no guidance. The respondents’ position was they wanted a wholesale referral for assessment. Accordingly we are not able to make a decision as to whether an assessment should take place as we do not know whether whistle-blowing associated costs are over £20,000. Victimisation discrimination claim

[42]Whilst a presumption arises that the claimant’s conduct is unreasonable where a deposit has been made and the reasons for the claimant’s claims being unsuccessful are broadly similar as was conceded here, we have decided not to award costs in this case because we do not think it was unreasonable of the claimant to proceed to a hearing on the following grounds:(1) The extensive redaction in the documentary evidence meant that although the respondents asserted the regulation 16 matter was the reason for the claimant’s removal, there was no documentary proof of that from any of the emails from the QC and there was some timing element which suggested that it may well have been a decision that crystallised after the claimant's Tribunal hearing judgment came out. ( it was very soon after the claimant’s case had been reported in the press)

(2) Whilst ultimately we found it was not GMP’s decision, there was a great deal of evidence of very careful positioning by GMP to ensure that they did not make or influence the decision and it was a reasonable view to take that under cross examination GMP’s witnesses may resile from this position.

(3) It was reasonable of the claimant also to submit that the fact that he had not been removed earlier when the regulation 16 matter had first been mooted showed that it was not as important an issue as the respondents were submitting, and that the real reason was, when it came to the QC’s notice, that the claimant was bringing claims against his employer.

[43]One of the most significant factors for us was Dermott Horrigan’s email of 15 May which clearly referred to counsel’s advice rather than CPS’s advice being the reason for the claimant’s removal. Mr Horrigan had to be reminded at the time by Mr Shewan that it was CPS’s advice. Although he clarified this it was an email which would have been it reasonable for the claimant to believe that he could rely on to undermine the Respondents ‘stated position as developed, i.e. that it was CPS’s decision ultimately that the regulation 16 matter was the whole reason for the claimant's treatment and not his Employment Tribunal proceedings. It had the potential to undermine Mr Horrigan’s evidence that his decision was based entirely on CPS’s advice rather than on counsel’s advice. Ms Jenkins from CPS gave evidence that her advice was based on regulation 16 matter and not a consideration of the fact that the claimant had brought proceedings against the respondent, but it was not unreasonable of the claimant to consider her evidence may be undermined during cross examination.

[44]All of the above matters are more or less summarised in paragraph 150 of our decision, and although we were able to reconcile these matters with the evidence we heard it was not unreasonable of the claimant to think there was a possibility that that would not occur.

[45]It was also reasonable to consider that Mr Dean was a viable comparator even though ultimately he was distinguishable.

[46]In addition the claimant had a reasonable argument that although it was extremely inconvenient to remove a Disclosure Officer, at the time it was mooted the respondents’ officers thought that the work he had already done would not need to be re-done. Again that was a reasonable point to make to assist his case to cast doubt on the respondents’ position that under no circumstances did they want to remove him because of the extra work it would involve – ultimately two people had to be deployed to undertake the claimant's work and re-assessing the work he had already done.

[47]Finally, in relation to the legal position regarding the liability of the three respondents we did point out in our decision it was wholly unsatisfactory that there was no obvious legal entity responsible for any discrimination if it had occurred. Again it was not unreasonable of the claimant to pursue his claim against these Respondents as there as case law which suggested it might be possible to make out such a claim against the respondents following the Weeks and McGlennon decisions again referred to in our decision, and also following the authorities referred to under European law (Jessemey).

[48]Therefore, as a result of all the matters referred to above we find it was not unreasonable of the claimant to pursue his claim against these Respondents and that although we came to the same conclusion in the end the evidence that Employment Judge Holmes was looking at was more simplistic than the evidence we ultimately had to look at, and that clarification of the reason for the claimant’s removal required oral evidence and cross examination of the respondents’ witnesses. Summary

[49]Accordingly, as referred to above, as we have only awarded costs in relation to the whistle-blowing claim. We do not know how much those costs are and therefore we are unable to make any order as to how the costs should be assessed, as it may well that the costs which relate to whistle-blowing are under £20,000.

[50]The respondents should advise the Tribunal within 28 days of this Judgment being promulgated of the costs involved and whether it might be possible to resolve the outstanding matters by written representations rather than hold a further hearing and incur further costs. JUDGMENT having been sent to the parties on 23 March 2018 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

Conclusion

[1]Firstly, we think it is important to set out the history of this case which is one of a number brought by this claimant against this respondent. The representatives had helpfully agreed a summary of the litigation to date. The first claims were brought by the claimant in 2007, 2008 and 2009 in respect of disciplinary proceedings initiated against him. Those claims were settled in 2009 and as part of the settlement agreement the claimant was seconded to a regional body called TITAN. A further claim was brought on the 18 of February 2013 relating to the fact that the secondment had come to an end and the terms on which that occurred. The case was heard by Employment Judge Holmes and members who found for the claimant in part. The decision was appealed and the Court of Appeal decided that the Employment Tribunal should not have found in the claimant’s favour in respect of the allegations with the exception of one claim which was remitted for a rehearing which had not taken place at the time these oral reasons were given. The claimant brought another claim in 2015 which was heard by an Employment Judge Feeney and members who gave a decision last year. They did not find for the claimant. By the time we heard the present case (2405789/15) it concerned allegations related to two separate police operations (“Woodmay” and “Recital” - see below at 3 and 4).

[2]The second thing we considered it necessary to summarise was a number of police operations which featured and/or referred to in this case. Firstly, and by way of background there was an operation called Holly which the claimant worked in when on the secondment to TITAN and thereafter continued working on it as disclosure officer serving with the respondent force prior to being removed from that operation. His removal from the operation was (as we understand it) at the heart of the case heard by the Feeney tribunal. Operation Holly gave rise to another operation called Atticus which was an investigation into allegations of corruption by two police officers who had worked on Holly (referred to in the hearing before us as X1 and X2). One was dismissed and the other resigned. There was a criminal trial which (as we understood it) did not lead to conviction of X1 or X2.

[3]A further operation called Woodmay arose as a result of alleged leaks to the press in connection with Atticus. Woodmay was an investigation into complaints by X1 and X2 that information about them had been leaked to the Manchester Evening News (“MEN”) and that this must have been by a police officer because some of the information had not been in the public domain.

[4]Next, there was an operation which was initially called Crimea but was renamed Recital. This operation arose out of a dossier that the claimant had sent to Her Majesty’s Inspectorate of Constabulary (“HMIC”) and later to the Independent Police Complaints Commission (“IPCC”). HMIC sent the dossier to respondent on 28th August 2014. The respondent sent it to the IPCC who referred it back to the respondent for a fact-find. The respondent’s fact-find had a number of strands. The allegation which we had to deal with related to whether the respondent had initiated an investigation in the claimant because of his conduct in respect of the dossier.

[5]Finally, an investigation was commenced because of a letter sent by the claimant’s solicitor to the respondent in April 2015 which made allegations against the (then) Assistant Chief Constable Dawn Copley (“ACC Copley”) and Detective Chief Constable Ian Hopkins (“DCC Hopkins”) which was referred to as “Essex”. It was sent to Essex Police for investigation and the outcome was that it was held that there was no case for ACC Copley or DCC Hopkins to answer.

[6]By the time of the hearing before us there were two allegations put under various heads of legal claim:(1) that the respondent commenced an investigation into the claimant and his dossier on or after the 22nd of October 2014 (the Recital allegation); and

(2) that the respondent served a Regulation 16 Gross Misconduct Notice on the claimant in connection with Operation Woodmay.

[7]The Claim Form [1-19] put the two allegations in a number of different ways. The respondent served a Response denying the claims and seeking further and better particulars [20-37]. The further and better particulars were served. This led to a Scott Schedule being drawn up by the parties. The Scott Schedule contained details of alleged protected acts (for the purposes of victimisation claims); alleged disclosures qualifying for protection (for the purposes of public interest disclosure detriment (“PID”) claims); and allegations about conduct said to amount to detrimental treatment and/or victimisation and/or discrimination. By the time of the hearing before us, an agreed list of issues had been derived from the Scott Schedule.

[8]There was a Preliminary Hearing before Judge Holmes [70-88] relating to this and another case. It is not necessary for us to provide details about the other case. Judge Holmes had to decide whether deposits should be made in respect of some of the allegations in this case. He ordered deposits in respect of allegations 12 and 13 of the Scott Schedule. In summary, those were complaints made by the claimant about use of social media (specifically allegations that racist comments had been made about him by retired police officers on a Facebook site). The deposit was paid but those allegations were withdrawn very shortly before the hearing before us. Since giving our oral reasons in this case, the respondent has made an application for costs which we understand to be in respect of those allegations. This has triggered an application for written reasons by the claimant. The costs application was to be heard on 25 May 2018 but was postponed as a result of a joint application by the parties and will now be heard on 19 November 2018.

[9]Judge Holmes declined to make a deposit order in respect of the remaining allegations. He accepted disclosure of the dossier to the IPCC was a public interest disclosure but did not consider disclosure to HMIC was (because the IPCC is in the Schedule of prescribed bodies for the purpose of disclosures qualifying for protection but HMIC is not). That point is no longer in dispute. Turning briefly to the victimisation claims, it was not in dispute that by bringing a number of employment tribunal claims and compiling the dossier, the claimant had carried out protected acts. 8. We were provided with the following documentary evidence:(1) A trial bundle, R1, which was over 3,200 pages long. References in square brackets in these reasons are to pages in the trial bundle;

(2) R2, an opening note from the respondent’s barrister;

(3) R3, an agreed list of issues;

(4) R4, a cast list which also contained information about the other tribunal claims and the various operations summarised above;

(5) R5, the respondent’s written submissions

(6) R6, the respondent’s chronology, which not agreed to be neutral;

(7) C1, the claimant’s chronology, which was agreed to be neutral; and

(8) C2, the claimant’s written submissions. 9. Witness evidence it was heard over 6 days: 4 to 8 December 2017 and 20 March 2018. We heard submissions on the 21 March and, following in Chambers deliberations, gave oral reasons to the parties at their request on the afternoon of 22 March 2018. The witnesses we heard evidence from were as follows: (1) The claimant, in support of his case; (2) Mr Paul Rumney, a Detective Chief Superintendent with the respondent (Greater Manchester Police) (3) Mr Michael Ryan, who was an Acting Detective Inspector in West Yorkshire Police (“WYP”) and was predominantly responsible for taking over the operation Woodmay investigation when it was referred to WYP by the respondent. (4) Mr Simon Bottomley, a DCI in WYP Professional Standards Branch who oversaw the operation Woodmay investigation with Mr Ryan reporting to him; (5) Mr Julian Flindle, a DI with the respondent in the Professional Standards Branch who carried out preliminary investigations (referred to as factfinding) on operation Woodmay. He also carried out a fact-finding investigation in respect of issues arising from the claimant’s dossier (i.e. operation Crimea/ Recital); (6) Mr Paul Savill, a Detective Superintendent in the respondent’s Professional Standards Branch until June 2014 and had oversight of the fact-finding investigation carried out by DI Flindle up to that point; and (7) Assistant Chief Constable Garry Shewan who took over from Assistant Chief Constable Copley as Appropriate Authority in relation to operation Woodmay. This took place after the service of the Regulation 16 Notice on the claimant. ACC Shewan decided that there should be no further investigations by WYP and the claimant should no longer be subject to the Regulation 16 Notice. Primary Findings of Fact

[10]From the evidence we saw and heard we made the following primary findings of fact relevant to the issues we had to consider.(1) The claimant joined the respondent on the 15th of January 1990 and (as we understand it) was well regarded as a Police Officer. From 1999-2017 he was the chair of the Black and Asian Police Association (“BAPA”). It was common ground that the claimant is a staunch campaigner for racial equality and was a prominent and vocal in arguing for racial equality within the respondent police force. This included criticising various aspects of the way the force operated. Some of his views were in the public domain because he issued tweets and gave media interviews. One issue he raised as being of concern (both internally and externally) was “cronyism”. Specifically, he alleged that fast-track promotion was available only to certain individuals on the basis of who they knew, and that this preferential treatment did not extend to black and minority ethnic officers.

(2) As already noted the claimant did not institute Employment Tribunal proceedings against the respondent until 2007. Prior to him doing so and the situation becoming adversarial, the claimant could be regarded as a “critical friend” of the force, although it was clear from the documents before us that on some occasions senior officers expressed concerns about how the claimant pursued his criticisms. Put another way, they took issue with the means the claimant used rather than the legitimacy of raising concerns.

(3) As explained above, operation Holly led to operation Atticus which resulted in Crown Court proceedings in respect of alleged misconduct in public office by X1 and X2. The criminal proceedings ended when the CPS decided to present no evidence. Following that, the respondent commenced disciplinary action against X1 and X2 which led to X1 resigning on the 6 of November 2013 and X2 being dismissed shortly after that. It could fairly be said that X1 and X2 ceased to work for the respondent under something of a cloud.

(4) In or around September 2013 a Police Federation Representative called Mr Kielty provided a copy of a report he had produced to BAPA. The report concerned alleged corruption and unfair practices in the respondent force. Thereafter the Kielty Report was leaked to the Manchester Evening News (“MEN”). Mr Kielty denied responsibility for doing so and said the report was intended for internal use only. The identity of the person who leaked the report has never been determined.

(5) Two Police Federation representatives provided assistance and support to X2 and X1: PC Neil Gilmore provided support to X2; and PC Lance Thomas to X1.

(6) On 25th January 2014 the MEN carried an article about X1, X2 and operation Atticus. The respondent’s witnesses explained that on subsequent investigation it transpired that most of the information in the article was in the public domain. However, there was one piece of information regarding X1 and X2 which had not been published. That was their job roles in the force at the time of Atticus.

(7) On 26th of January X1 put in a formal complaint to the Chief Constable, who was then Mr Fahy, about the leak to the press and the fact that it identified his job role. He specifically stated that he did not think the information would have come from his Police Federation Representative, PC Lance Thomas. The letter was also critical of the respondent’s Professional Standards Branch (“PSB”).

(8) On 27th of January this was forwarded to the PSB for recording as a complaint and for a fact-find. This is an opportune moment to explain the difference between a fact-find and an investigation. This was explained by DI Flindle and accorded with our prior understanding of how the process works in relation to complaints against police officers. The first stage is a fact-find. That is followed by a “severity assessment”. Thereafter the process may come to an end or it may lead to the officer being offered advice or to a formal investigation. The fact-find and severity assessment determine whether there is a case to investigate further and, if so, whether the alleged conduct could constitute a criminal offence and, if not, whether it could amount to misconduct. If there is alleged criminal activity, any misconduct investigation does not take place until after a decision has been taken about whether to prosecute. There was some confusion as to who was responsible for the fact-find on on Woodmay (i.e. the complaint by X1 and subsequently X2 about the MEN article). There was reference [at 246] to DI Maddocks; but in fact it was clear from the evidence of DI Flindle, which we accepted, that DI Maddocks was not in responsible for the fact-find in relation to operation Woodmay He was in fact the investigating officer on Atticus. After a somewhat convoluted chain of events DI Flindle was tasked with carrying out the fact-find on Woodmay which, by that point, also included a complaint from X2.

(9) To summarise the relevant part of DI Flindle’s witness statement (which we accepted to be correct) on 29th of January 2014 he was initially briefed by DCS Rumney who explained the nature of the complaint. DCS Rumney informed him that there was information that Detective Sergeant Tom Elliot (who was a Police Federation officer) had photocopied the file and given a copy to the claimant although neither of them had any reason to access the file because they were not representing X1 or X2. DI Flindle was told that it was possible that Woodmay could be referred to another force for investigation (which, as we now, know it was). DI Flindle carried out the fact find in line with Home Office Guidance issued in 2012. It was his role establish whether there was sufficient information to be able to conduct an informed severity assessment. DI Flindle explained that the Home Office expected Professional Standards to establish key facts prior to making a severity assessment unless, for example, the process needed to be formally recorded from the outset.

(10) It transpired when this matter was investigated that PC Gilmore (representative for X2) said that he had a conversation with Sergeant Elliot on the 27th of January 2014 regarding the MEN article during the course of which Sergeant Elliot told him he had photocopied the Atticus file and given a copy to the claimant in the expectation that the claimant would leak the information to the press. Two other Police Federation representatives were in the Police Federation office at the time (PC Thoroughgood and PC Phillips) and corroborated PC Gilmore’s account, as did PC Lance Thomas ((representative for X1). The Administrative Assistant in the Police Federation office confirmed she had been asked to copy a file by DS Elliot. Those accounts were documented later as part of the investigation but the alleged conversation involving DS Elliot was said to have taken place shortly after publication of the MEN article. The reason that the claimant became a “person of interest” in relation to Woodmay was the fact he was referred to in the alleged conversation as being the recipient of a copy of the file. Also later it emerged during the investigation that at a Police Federation meeting in the Chop House on the 13th of January DS Elliot was alleged to have said to PC Gilmore words to the effect of “Did I say I passed the file to Paul Bailey [the claimant]? Well I haven’t/didn’t”. PC Gilmore said that this was very different to what was said during the previous conversation. It could be inferred that Sergeant Elliot was back-tracking.

(11) On the 29th on January PC Gilmore made a complaint to Chief Constable Fahy about the MEN article [250]. He pointed out that the Court had imposed reporting restrictions in respect of the criminal proceedings. He said he was concerned that the article could leave X1 and X2 vulnerable. He made reference to the fact that the article [our copy was redacted] made it clear that one of them had carried out a sensitive role (in fact as we understood it both of them had carried out sensitive roles). PC Gilmore expressed concern that the criminal fraternity might try to contact X1 and X2 because of their knowledge of the internal workings of covert police operations.

(12) On 2nd February 2014 X2 put in a formal complaint about the fact that the MEN article contained information about him [376].

(13) ACC Copley (now retired) was the “Appropriate Authority” overseeing the fact find.

(14) On the 31st January 2014, following the Chop House incident, Also a decision was taken by the chair of the Police Federation , Mr Hansen, to place Mr Elliot on garden leave. He notified DS Savill of that on the 31st of January saying: “Mr Elliot has been placed on garden leave with immediate effect; he’s been locked out of all federation IT systems and I’ve taken his office keys.” He said that he had been asked by DI Flindle to email details of those able to supply statements and identified PCs Gilmore, Thoroughgood, Phillips and Thomas. DS Savill informed DI Flindle of this and said it appeared that Sergeant Elliot might be trying to persuade PC Gilmore to change his recollection of the first conversation.

(15) At that stage and indeed throughout the entirety of what to become Operation Woodmay, the four officers who reported the alleged conversation were treated as witnesses rather than suspects. It was part of the claimant’s case before us that because they would have had access to the Atticus file they should have been treated as suspects. We did not accept that. Mr Flindle and Mr Savill were very clear in saying there was no reason to treat them as suspects whatsoever as indeed was Mr Rumney, who pointed out that in fact it was PC Gilmore who had raised the concern about DS Elliot having some responsibility for the leak. They were also clear and consistent in confirming that they regarded DS Elliot as a potential suspect but did not class the claimant as such because the only evidence against him was what Mr Elliot was alleged to have said. We accepted that it was apparent from the oral and documentary evidence that all of the officers involved in Woodmay took the view that there was more evidence against DS Elliot than the claimant. It is also material to note that during the fact-finding, DS Elliot gave a different account to that reported by PC Gilmore. He said that he had given a file to the claimant but insisted that it was not the Atticus file.

(16) On the 31st of January 2014 DI Flindle provided a written briefing for the investigating team that he was supervising for the fact-find [266]. It identified the topics they should cover when interviewing the four Police Federation officers. There were eight questions all of which were relevant to the allegation. For instance, one question concerned whether there could have been a legitimate reason for DS Elliot’s actions.

(17) When interviewed as part of the fact-find, the four Police Federation officers were consistent in saying that Mr Elliot said he had taken a copy of the Atticus file, and had given a copy to the claimant who may have leaked it to the MEN.

(18) Also, as part of the fact-find, DI Flindle investigated how much of the information in the MEN article was already been publicly available e.g. contained in press statements made by the respondent. He also investigated coverage of the Atticus trial (prior to its collapse) and what reporting restrictions were in place.

(19) On the 6th of February 2014 DI Flindle met DS Savill and ACC Copley in order to update them as to the progress of the fact-find. They decided further information was necessary so there was more work to be done. ACC Copley made a note of what had been discussed [508 & 509]. It was difficult to read but included the following: Mr Elliot’s emails were to be checked; and there was no direct evidence that the claimant had seen the file. The emails were checked but took the investigation no further.

(20) Mr Flindle told us that he established that the job roles of X1 and X2 had not been disclosed via any legitimate channel. Therefore, having completed interviewing the Police Federation officers, the fact-find was concluded. He decided that there was sufficient evidence to recommend issuing a Regulation 16 Notice (i.e. a Notice commencing a formal investigation) in respect of DS Elliot but that it was not appropriate or necessary to do so in respect of the claimant. He also said that the factfind had not revealed any potential criminal actions by DS Elliot but had established there were grounds to investigation potential gross misconduct by him.

(21) His rationale for the Regulation 16 Notice in respect of DS Elliot was accepted by DS Savill and ACC Copley. They also must have agreed that there was no case for a Regulation 16 Notice to be served on the claimant, because they did not query DI Flindle’s assessment. It is material to record that the consequence of not issuing the claimant with a Regulation 16 Notice, was that he did not know anything about the fact-find and so was unaware that his name had come up in connection with the leak.

(22) The Regulation 16 Notice was approved by ACC Copley on the 11th February 2014 and served on DS Elliot that day. ACC Copley decided that the case should be referred to an outside force for investigation.

(23) On the 24th of February 2014 DS Elliot gave his response to the investigation into leaked information about X1 and X2. His representative forwarded his written account to DCI Flindle. DS denied any wrongdoing, and said he was “hurt and wounded by the allegations made against me”. He admitted disclosing a report to the claimant but said it did not relate to Atticus. He said that he provided the report to the claimant because the case concerned was discussed in a meeting chaired by ACC Shewan and the claimant had asked for a copy. He said that he was disappointed that details he had given to the claimant were later disclosed to the press because he had not thought the claimant would do so. He went on to say that when he was talking to his colleagues in the Police Federation about the MEN article he might have misunderstood the nature of the conversation and thought it related to the other case. He asked that the claimant should be spoken to confirm the above. That did not occur.

(24) On the 28th of February 2014 DI Flindle did an initial written severity assessment [510 to 530]. It stated: “at this stage the only significant evidence supports the fact that DS Elliot has improperly disclosed confidential information to a third party being reckless as to whether this would be further disclosed to the press. There is no evidence that he sought consent or authority in doing this and he was not acting in execution of his Federation duties. There is no evidence other than that of DS Elliot that DC Bailey has been involved in disclosures in relation to operation Atticus.” He went on to say that he believed, on the current evidence, that if proven DS Elliot’s behaviour would be a breach of confidentially to the extent that it could be gross misconduct. Clearly at this stage it was not thought that there was sufficient evidence to implicate the claimant and hence it remained the case that the claimant was not the subject of a Regulation 16 Notice.

(25) The external force was (eventually) WYP. It is fair to say that there was quite some delay in WYP agreeing to take on the investigation and getting a team together to undertake it. ACC Copley sent the Woodmay file to WYP on 11th March 2014. It contained the evidence gathered during the fact-find. The brief to WYP was to review the severity assessment. At that stage, as was confirmed by ADI Ryan (WYP), the claimant was regarded as a person of interest rather than a suspect. Once WYP took over the investigation DI Flindle had no active role in operation Woodmay and instead gathered information if requested to by WYP.

(26) On the 17th February (going back slightly in the chronology) Mr John Scheerhout, the MEN reporter responsible for most of the media coverage of Atticus (including the article with the leaked information) contacted the respondent’s press office to say that he’d been leaked a copy of the Kielty Report (see (4) above) and that it contained allegations about a number of cases dealt with by the PSB and/or alleged wrongdoing by the PSB.

(27) On 19th March Sergeant Hargreaves interviewed Mr Kielty [577]. During the course of that interview Mr Kielty said that he had emailed the report to the inbox of BAPA with the intention it would be forwarded to an external police force investigating allegations about PSB investigations. That investigation had apparently come about because of a MEN article quoting BAPA. Mr Kielty stated he did not intend the report to be in the public domain and expected circulation to be limited to the investigators. Mr Kielty then said that within a short space of sending the report to BAPA he received a lengthy phone call from a BAPA officer who he would not name. He said that officer had put him under considerable pressure to speak to Mr Scheerhout of the MEN saying that it was “in the public interest and the right thing to do” and that he would “let people down” if he did not do so. Mr Kielty’s account was that he was close to falling out with the BAPA officer over it. He also said that he was then told that his report might be leaked in any event. Mr Kielty said he felt angry, let down and manipulated.

(28) As a consequence of the issues relating to the Kielty report and the PSB, the respondent took a decision to report itself to the IPCC on the 23rd of March 2014 [581]. DCI Flindle produced the report which was sent to the IPCC. On 27th of March the IPCC referred the matter back to the respondent having decided that it should be investigated locally [593].

(29) On the 2nd of April 2014 terms of reference relating to operation Woodmay were sent to WYP by DCS Rumney. At that stage there were two allegations. The first allegation concerned the operation Atticus/X1/X2 MEN disclosure issue [598 to 600]. WYP was asked to: (1) review the severity assessment undertaken: (2) establish whether there was unauthorised disclosure of restricted material to the claimant or to the MEN; (3) identify the person or persons responsible for making the disclosure; and (4) to identify whether any subject of the investigation had committed a criminal offence or had a case to answer for gross misconduct, misconduct, UPP (which we understood was either a verbal warning or a record on the officer’s file), or no case to answer. Clearly there was a sliding scale of possible outcomes.

(30) The second allegation related to the Kielty Report. The background to the allegation was recorded by DCS Rumney who summarised the call to the press office from Mr Sheerhout to say he had the Kielty Report and the fact that Mr Kielty had confirmed he had provided the report to BAPA for the purpose of feeding into the investigation into PSB by the external police force but not for external circulation. DCS Rumney said that the report contained sufficient detail to identify seven of the eight officers referred to in it. He said Mr Kielty had not in fact sought permission from the affected officers to send his report to BAPA. DCS Rumney also said that Mr Kielty alleged he was pressured to talk to the MEN. He requested that WYP review the initial severity assessment and compile a joint or cumulative severity assessment addressing both allegations.

(31) In the hearing before us the claimant’s representative queried where the second allegation had come from. In fact, we thought it very clear from the documentary evidence that the second allegation came about because the Kielty Report was disclosed to the MEN. As such, it was understandable that WYP was asked to investigate, however the result was that WYP did not identify the claimant being associated with the Kielty leak and that allegation went no further,

(32) It was not until 29th of May 2014 that a handover meeting took place between DI Flindle and WYP. WYP asked DI Flindle to obtain further information [613]. This included copies of relevant email trails between the claimant and force command in relation to disclosure of information to the MEN about a number of cases (the names of which were redacted in our documents). WYP also details of work and mobile phone records for the claimant and for Mr Elliot and asked for their email accounts to be locked down.

(33) DC Hargreaves, who reported to DI Flindle, then sent contact details for “Subject 1 Paul Bailey” and “Subject 2 Tom Elliot” [619, 623]. In crossexamination, the claimant’s representative queried why the claimant was now “Subject 1”. Mr Flindle’s explanation was that it was simply a response for information on both the claimant on Mr Elliot by WYP. The respondent’s representative made the point that “Subject 1” does not equal “Suspect 1” which is of course correct. We were quite satisfied that DC Hargreaves and DI Flindle were simply providing information as requested by WYP and that nothing was to be inferred from the reference to “Subject 1”.

(34) On the 12th June 2014 Sergeant Julie Barnes who the claimant reported to and worked with sent an email to the IPCC saying she was concerned that her phone calls were being monitored. We came to realise that her contention was that ACC Copley was responsible for this. DS Savill dealt with this in paragraph 36 of his witness statement. He said that it was never the case that her calls were being monitored, that there was no reason to do so, and that she had not been the subject of any investigation at all. That evidence was not challenged and we accepted it.

(35) On the 25th of June 2014 the claimant sent the dossier to HMIC. This did not constitute a disclosure. On 28th of August 2014 HMIC handed the dossier to the respondent to investigate locally. That was the first time the respondent knew of the existence the dossier. Put simply, although sending the dossier to HMIC was not a protected disclosure, the fact that the claimant had done so became known to the respondent. The dossier did contain protected acts i.e. allegations of race discrimination.

(36) On the 5th of July 2014 DS Elliot retired before the investigation into his alleged disclosures about X1/X2/Atticus was completed. By this point WYP officers had not carried out any investigation into operation Woodmay. The Home Office Guidance into investigation of police officers which was then in force did not prevent an officer from retiring whilst the subject of a potential or actual disciplinary process. That is no longer the case but it was then.

(37) On 10th of July WYP officers confirmed that they were still trying to identify a team to work on operation Woodmay. At that point any information being gathered by DI Flindle and those reporting to him was being sent to Superintendent Khan. He handed over to DI Ryan on the 4th of August 2014.

(38) n the 19th of August 2014 DI Ryan carried out an initial review based on the paperwork thus far. He summarised his findings in an email to DCI Bottomley [664]. He questioned the severity assessment in respect of the claimant by annotating the paragraph which contained the statement “the role of Constable Paul Bailey has been considered, and it appears that the information available does not meet the threshold test required and no severity assessment has been completed”. His annotation said: “N.B. it is unclear when this decision was made, and it should be considered that this position is reviewed by the Appropriate Authority.” The short point being that by this early stage DI Ryan questioned the decision by the respondent that no severity assessment was required for the claimant. Indeed, when he gave evidence DI Ryan was clear and consistent in saying that he thought the view that the claimant did not meet the threshold test was wrong or, at the least, open to question. When giving evidence, DI Ryan made it abundantly clear that his view was not in any way influenced by ACC Copley who remained the Appropriate Authority, albeit that she’d outsourced the investigation. It is material to note that the respondent was unaware of the dossier at this point.

(39) In summary, we were wholly satisfied from the evidence of the witnesses for WYP that it was their decision to recommend a review of the severity assessment. It was also clear that they later decided that there were grounds to issue the claimant with a Regulation 16 Notice. We were also satisfied that rather than influencing WYP, ACC Copley was reluctant to issue a Regulation 16 Notice. We shall return to that point later in our findings.

(40) On or around the 28th of August DI Flindle met WYP who by this point had identified an investigation team. On the same day the claimant’s dossier was given to DCC Hopkins by HMIC. He passed it to ACC Copley because she was the Appropriate Authority. Having reviewed the dossier, ACC Copley declared a potential conflict of interest because she was one of the officers whose actions were criticised in it. For that reason she decided to send the dossier to the IPCC. She nominated Chief Superintendent Hull and DI Flindle to review the dossier and do a factfind before sending it to the IPCC.

(41) ACC Copley’s thoughts on the dossier were captured in an email sent to DCC Hopkins on 28th August [679 – 681]. Firstly, she summarised content of the dossier, noting, amongst other things, that it alleged corruption by her and others. She said she wanted to provide some clarity about the alleged corruption. It concerned an email from DS Julie Barnes to the IPCC alleging that ACC Copley had authorised covert monitoring of her mobile telephone. ACC Copley stated that she did not think she had had any personal contact with DS Barnes apart from on one occasion when she and the Chief Constable had a meeting met with the claimant to discuss concerns about the way he was communicating about the respondent with bodies such as the IPCC. She explained that following the meeting she had asked someone to speak to the claimant’s line manager (DS Barnes) to check on his welfare because she thought he may have been upset by the meeting, and DS Barnes reported back that there were no welfare concerns. ACC Copley said that DS Barnes had never been under investigation. She went on to say that she would step aside at any point from any investigation of the dossier if this was thought to be necessary. ACC Copley said the intention was that DI Flindle (Supervised by CS Hull) would conduct a fact-find by looking into cases referred to in the dossier. She said that it appeared that many of them had been previously investigated by the PSB or members of the Chief Officer’s team. Some were ongoing, some were subject to appeal, and some were the subject of legal proceedings. ACC Copley stated: “what is clear though is they’ve not been dealt with to the claimant’s satisfaction as he’s submitted them individually and collectively as evidence of corruption”, noting that the claimant had provided his own definition of what he meant by corruption.

(42) ACC Copley concluded by stating: “there are some associated issues which trouble me on this”. These were as follows: (1) “DC Bailey, the claimant, has an ongoing ET which is due to be heard in September”; (2) “DC Bailey, the claimant, may become implicated in the WYP investigation into Mr Elliot’s alleged breach of confidence in sharing misconduct files”; (3) the claimant had shared details of a case with HMIC knowing that the case was covered by reporting restrictions, and that she was unclear as to whether such reporting restrictions would extend to that kind of disclosure; and (4) “other current considerations regarding DC Bailey’s conduct”. ACC Copley said: “we will need to carefully discuss how we progress any or all of these different strands as any one of these could quickly be alleged to amount to victimisation and/or further evidence of malpractice”.

(43) We were satisfied that the email was appropriate and carefully considered. It is fair to say that ACC Copley’s concerns about the claimant having ongoing Employment Tribunal proceedings and possibly making further claims was prescient. It is right to say, as has been pointed out by Mr Gorton QC, that raising concerns about the possible implications of WYP’s investigation into the claimant’s action was not of itself victimisation. In fact we thought it evidenced concern that a difficult situation did not get any worse.

(44) It is fair to say that the dossier was a very large document and it contained allegations about a lot of cases including eight covered by the Kielty Report. Researching the background and status of those cases was undoubtedly a significant piece of work.

(45) On 29th of August 2014 DI Ryan met with DCI Bottomley, DCI Flindle and DI Hargreaves, to discuss the terms of reference of the WYP investigation, including a review of the severity assessment [683] .

(46) On 1st of September DCI Flindle started working on fact-find relating to the dossier. He had identified a number of strands at that point [741]. He identified these as: (1) what he described as the “BAPA dossier”; (2) BAPA’s use of social media (3) allegations related to ACC Shewan; (4) something referred to as the ‘cabal of corruption’ (explained below); and (5) allegations of discrimination by a person whose name was redacted. The ‘cabal of corruption’ was the title of a website set up by someone referring to themselves as a whistleblower. Their identity was unknown and the respondent has never suggested that it was the claimant. The website contained information which, if it had been posted by a police officer, which the respondent thought was likely given the nature of the information, could constitute gross misconduct. The only matters relating to the claimant directly were the dossier and use of social media by BAPA, bearing in mind that a lot of posts on social media were in the claimant’s name. The sole connection between the claimant and the ‘cabal of corruption’ was that he re-tweeted an item that the person calling themselves ‘the whistleblower’ had posted.

(47) On the 2nd of September 2014 WYP produced a synopsis relating to the matters they had been asked to investigate i.e. the leaks regarding X1 and X2 and the leaking of the Kielty Report. It made reference to eight cases investigated by the GMP (i.e. the Kielty Report). Lines of investigation were said to be witness accounts, forensic strategy, recovery of emails, recovery of telephone data, and press liaison with the MEN.

(48) On the 4th of September 2014 the terms of reference for operation Crimea which became operation Recital were set out by the respondent. The terms of reference referred to the strands and to the involvement or suspected involvement of one individual i.e. the claimant, being the chair of BAPA. At that stage there was no criminal or misconduct investigation and the remit was to carry out a fact-find with the purpose of making an informed severity assessment to be followed by voluntary referral to the IPCC. DI Flindle was directed to take legal advice about the content of the IPCC referral and prepare regulation 16 notices and a rationale to delay service of them due to the sensitive nature of the investigation.

(49) In summary, at this point WYP was looking into the two matters that they had been asked to investigate, and DI Flindle was conducting a fact-find on behalf of the respondent relating to issues stemming from the dossier.

(50) On the 24th of September 2014 a record was made by DI Ryan that he’d met with DI Bottomley to provide an operational update and review and that he was unsure about the ‘severity assessment’ by GMP [658]. Strictly speaking there had been no severity assessment of the claimant by GMP, so DI Ryan’s issue was with the fact there it had not happened.

(51) On the 26th of September DCI Flindle produced what we were told was his severity assessment. He made it clear that apart from the re-tweeting issue there was no apparent link between the claimant and the ‘cabal of corruption’. He went on to say that prior to assessing whether there was evidence to support a misconduct investigation there were some key issues requiring consideration. He pointed out that the claimant may not be aware that his behaviour in relation to use of social media was potentially outside the bounds of acceptability. He observed that the claimant was doing so in his capacity as Chair of BAPA, and that given that context, the behaviour was defensible in the context of what the blogs were seeking to address. He queried if it would be reasonable to expect the claimant to use alternative channels of communication. He went on to say that it was clear that the manner in which the claimant conducted himself and the mechanisms and tactics he utilised to further his cause had already been subject to challenge. We concluded that was probably a reference to the claimant’s meeting with ACC Copley and the Chief Constable. DI Flindle then said: “It is fair to conclude he’s aware of the fact that his behaviour’s deemed as less than satisfactory and that on receiving advice from ACC Copley the claimant confirmed he saw his role as a critical friend but he was pushing the boundaries”. His conclusion at was that there was sufficient prima facie evidence to support instigating a misconduct investigation into the claimant’s use of social networking [880]. DI Flindle stated that the investigation would need to establish the attribution of the messages to the claimant and consider obtaining his account of his reasons and rationale when using the approach he had. It must give due consideration to his role as Chair of a staff network and to the amount of leeway afforded to other staff networks. He noted the claimant was potentially a whistleblower. He said those factors would require careful consideration as they might mitigate the claimant’s actions on social media such that fresh consideration as to whether they amounted to misconduct might be necessary. DI Flindle also expressed the view that if the claimant’s actions did amount to misconduct, it could be dealt with by a misconduct meeting. He did not suggest that the threshold for a criminal investigation was met, or that the actions could amount to gross misconduct. So, reading between the lines, there would be no grounds for a Regulation 16 Notice in respect of use of social media. In any event no action occurred in relation to it – there was no misconduct meeting.

(52) In our opinion the fact that the respondent took no further action in relation to the social media issue was cogent evidence that (contrary to the claimant’s case) the respondent was not looking for reasons to discipline him. The same observation applies to the difference of opinion between WYP and the respondent over the severity assessment on Woodmay.

(53) On the 1st of October DI Ryan emailed DCI Bottomley regarding the WYP investigation into the alleged leak of information about X1 and X2. He stated: “the initial severity assessment completed by GMP identified the complaint was the subject of special requirement and Sergeant Tom Elliot was served with a Regulation 16 Notice for gross misconduct.” He added that on reviewing the information now available “…This should extend to include the conduct of Paul Bailey whose conduct is now the subject of investigation”. He added that he was meeting DCS Rumney the following day to consider a further severity assessment. His email included extracts of the Home Office guidance around severity assessments and Regulation 16 Notices [963]. It was apparent to us that WYP believed that the claimant should be served with a Regulation 16 Notice.

(54) On the 2nd of October ACC Copley updated DCC Hopkins saying that DCS Rumney had met WYP and had established that they believed it would be necessary to serve a Regulation 16 Notice on the claimant because he was potentially implicated in the leak by the evidence obtained to date. ACC Copley explained that WYP would complete a severity assessment within 7 to 10 days and that “it is expected to assess this as potential gross misconduct”.

(55) On the 6th of October DI Ryan emailed DCS Rumney and DI Flindle making referring to the severity assessment. He explained that WYP felt that the material available indicated that the conduct of DCI Paul Bailey (i.e. the claimant) may amount to a criminal offence or a breach of standards of professional behaviour which could justify bringing disciplinary proceedings. He made reference to legal advice obtained by the respondent in respect of other issues relating to the claimant and said WYP was willing to review those issues if required.

(56) On the 7th of October 2014 DI Ryan produced a written review of the severity assessment which (in summary) stated that WYP considered the public complaint from X1 and X2, if proven, was subject to “special requirement”, namely that there was an indication that Sergeant Tom Elliot and Constable Paul Bailey may have (1) committed a criminal offence and (2) behaved in a manner which would justify the bringing of disciplinary proceedings [para 3.7 of 984]. It then stated that WYP was seeking to consult with the Appropriate Authority with a view of completing further severity assessment and to ensuring the officers concerned are provided with a Regulation 16 Notice unless this might prejudice this or another investigation. We concluded that this made it very clear that WYP was pushing for a Regulation 16 Notice to be served on the claimant. They could not do this without approval from the Appropriate Authority i.e. ACC Copley.

(57) DCS Rumney made ACC Copley aware that this was the position by an email dated the 12th of October 2014.

(58) The next key event concerned the first alleged protected disclosure. The claimant sent an email sent to the IPCC on 16th of October 2014 [1024]. He stated that he was the chair of BAPA and was “alarmed by the level of corruption that occurs within Greater Manchester Police, especially at the very highest levels and within the Professional Standards Branch”. He went on to say: “What is even more alarming is the steps that senior officers take to minimise or cover up the corruption. This is a significant threat to natural justice and to the so-called integrity of the force. Whistle blowers live in fear of persecution and reprisals”. He said that he has sent his dossier to HMIC but had learnt that a copy of it had been sent to the respondent. He then stated that his understanding was that HMIC was going to refer GMP to the IPCC (this was incorrect because it was respondent’s decision to make a voluntary referral to of allegations in the dossier to the IPCC). The claimant expressed disappointment with HMIC’s failure to act on the information he had submitted.

(59) Under cross-examination it was put to the claimant that he had not disclosed information in the email and had merely made general assertions of corruption at the highest level etc. The claimant appeared to reluctantly accept that proposition.

(60) We concluded that this was not of itself a protected disclosure because it was not a disclosure of information. However, the claimant did make a protected disclosure on or around 5th of November 2014 because he sent the dossier to the IPCC on that date [1116]. This meant the second disclosure relied on was a protected disclosure. Furthermore, as already noted, as from the end of August the respondent knew of the existence of the dossier albeit not directly from the claimant.

(61) We shall deal with the third disclosure at this point. The claimant alleged that on the 28th of November he made a statement to the IPCC about the dossier. We had no copy of the alleged statement although we did not doubt that it may have been made. If so, it may have been a further protected disclosure. However, the claimant accepted under crossexamination that he could not confirm the respondent knew of it, and the respondent denied such knowledge. Therefore the alleged third disclosure was not relevant.

(62) In summary, we concluded that the only protected disclosure material for our purposes was that made on 5th of November 2014 but that the dossier itself constituted a protected act for the purpose of the victimisation claims.

(63) On the 19th of October 2014 ACC Copley sent an email to DI Flindle and DCS Hull stating: “Something struck me over the weekend: do the people whose cases are contained within the BAPA dossier actually know that their cases are being championed in this way? Do they support it and do we need to seek their views or tell them before we submit it to the IPCC?” She then made reference to the fact that there had been a case where an officer had made it clear that he did not want details of an investigation into him to be sent to the IPCC. She said she was uncomfortable not inviting the views of the officers whose cases were referred to in the dossier prior sending it back to the IPCC. We shall call this the “consent issue”, because that is essentially what it was.

(64) There were two material points about the consent issue: (1) DI Flindle confirmed that legal advice was taken about whether the people who were named in the dossier had consented to their personal information going to an external body i.e. the IPCC; and (2) the legal advice was that it was necessary to establish that they consented. In our view that advice was sound and actions taken by the respondent to find out whether there was consent were appropriate and necessary.

(65) As a result on the following day DI Flindle identified 17 potential interested parties including two ex-officers [1043]. He tooks steps to contact them by sending a form of words to Ms Jessica Samouelle on 22nd October. She was responsible for contacting those concerned to find out if they consented. The form of words was quite lengthy. It stated that enquiries were being made about a BAPA dossier and that: “whilst we cannot divulge the content of this document we can inform you that a case involving you is included within the document. The cases are cited to provide individual evidence of bias, unfair practices and conduct indicating discrimination and corrupt practices”. That was an accurate summary of the purpose of the dossier. The wording then stated: “I need to ask you a number of questions. (1) Were you aware of the dossier? (2) If so were you aware that your case had been mentioned in it? (3) Did you give your consent to BAPA to include your case? (4) Was BAPA representing you in relation to that case? (5) Is BAPA still representing you? (6) If you have not given consent are you happy for your case to have been included? and (7) Would you have given consent if you had been approached?” The document then stated that the respondent intended to refer the dossier to the IPCC and in respect of that asked: “(1) Do you consent to your details being provided as per BAPA unredacted documents? (2) If not, what is your view on the matter being referred to the IPCC? and (3) Do you have any other observations you would like to make?” It concluded by saying “If you feel you need support on this matter we can refer you to the Police Federation or if you like you can arrange this yourself.”

(66) The long form of proposed wording later was shortened (see below).

(67) The claimant’s case was that there was something untoward in the offer to refer the persons mentioned in the dossier to the Police Federation for support. We did not accept that. Given that the dossier was a BAPA document, it could well be that some of the people referred to in it would want to obtain advice and/or support from a representative body other than BAPA.

(68) DCI Flindle did not check his proposed wording with ACC Copley or anyone else with the result that Ms Samouelle contacted the officers involved using virtually the format set out above, although the wording about the Police Federation was changed to say: “A referral to the Federation can be made on your behalf if you require”. DCI Flindle was unable to explain why this change was made. We concluded it was not a material change.

(69) One of the officers who received the email was referred to in proceedings before as Officer K. On the 24th of October ACC Copley was approached by Officer K. Her written record of the conversation stated that it was fair to say that K was: “rather confused, perplexed and worried” and did not understand what the mail referred to or its significance. ACC Copley stated she had explained that the claimant had submitted a dossier of cases to HMIC on behalf of BAPA and that K’s case notes had been concluded. Officer K then told her that she had not known of the dossier and did not want her case to be in the public domain. Officer K expressed concerns about the way the PSB operated and had dealt with her case. ACC Copley concluded by saying: “I’ve asked her to consider whether she wishes her case to be included and, if we have permission to send it to the IPCC, whether she wants to speak with Paul Bailey to inform her view”. She stated that Officer K said she trusted the claimant because he had supported her but was absolutely clear that she had not given permission to send details of his case to HMIC and was not told by him that he had done so. She concluded by saying that Officer K was nervous about getting anyone into trouble and did not want details of his case leaking to the press [1058].

(70) As a result of that conversation, ACC Copley queried the wording being used over the consent issues. As a result DCI Hull asking DI Flindle to send it to him so it could be discussed. DI Flindle sent it on to him and ACC Copley [1059-1060]

(71) On the 29th of October ACC Copley wrote to DI Flindle and DCS Hull stating: “it’s important we get the message across clearly but reading a script sounds overly formal and is likely to make people defensive, unnecessarily so. I also think the first set of questions makes it sound like we’re investigating BAPA about how they’ve put the dossier together when we are not. The second set of questions are the crucial ones.”

(72) This led to DI Flindle producing a revised version limited to the last three questions set out in paragraph (65). ACC Copley’s response to that was that it should not be sent as a round robin email and that only the second and third questions were important.

(73) DCI Flindle accepted her view because the key issue was consent. We thought it was understandable that ACC Copley intervened to limit the questions to the consent issue when she because aware that the original wording had worried Oficer K. The difficulty was that by that point most, if not all, of the people named in the dossier had received the first form of words before receiving the final version.

(74) The claimant was on holiday at this point, but found out about the consent issue on his return. On the 13th of October 2014 Officer M, one of the people whose case was in the dossier, said that he was asked a series of questions about it and that Ms Samouelle had seemed surprised when told her he had consented, replying that he was first person to say so and that everyone else was surprised to find out about it. Officer M told the claimant that it appeared the PSB were contacting people whose cases were quoted in the dossier to incite them to complain about BAPA and the claimant. Officer M clearly believed there was a campaign against the claimant. Unsurprisingly the claimant formed the same view. However, the reality, as we have already stated, was that the enquiries about the dossier were the result of legitimate concerns and were now restricted as per paragraphs (72) and (73).

(75) Officer K also sent an email to the claimant about it [1106]. It stated that although Officer K had not seen the dossier, she had made it clear that the claimant had her implied consent to include her case. K said she had then met ACC Copley for “well over an hour” and had been advised to think about whether she had given permission for the claimant to send her case to HMIC, and that she might wish to seek Federation advice. K said that she had replied by saying she trusted the claimant and he would not have forwarded anything that was untrue and that she did not want any embarrassment for the force. K expressed the view that ACC Copley was acting in good faith but that she (K) had absolutely no trust in the PSB and trusted the claimant totally. This no doubt reinforced the claimant’s view that the respondent was looking for reasons to discipline him.

(76) Officer Julie Barnes sent an email stating she was concerned about the level of stress the claimant was under [1096]. She said: “It appears to Paul [the claimant] that while he’s been on leave the PSB has carried out an investigation into him of which he had no knowledge. “

(77) On 3rd of November the claimant wrote to DCS Hull, stating: “I understand I’m being investigated in relation to a complaint of corruption that I made to the HMIC and more recently to the IPCC. I provided a file of evidence in support of the complaint. I would be grateful for the following information: (1) How did the PSB come into possession of the file of evidence? (2) Who authorised this investigation? and (3) What are the parameters of the investigation?

(78) DCC Ian Hopkins replied the same day saying that he was surprised by some of the questions the claimant had sent to DCS Hull because: “I know from HMIC that they informed you that a copy of the file of evidence was handed to me with a request that I consider what action should be taken”. He said he had discussed it with ACC Copley as Appropriate Authority for misconduct matters and it was agreed that she would refer the matter to the IPCC. He added that many of the cases in the dossier had been investigated and/or concluded and that there was an ongoing exercise to retrieve relevant paperwork and information to present to the IPCC. He said the purpose was to ensure the IPCC was aware of the full picture in order to take what he described as a “rounded view”. DCC Hopkins stated that the individuals named in the dossier had been quite correctly contacted to ascertain if they were happy to allow details of their cases to be passed to the IPCC. He added that initially more questions were asked than was necessary, but that once ACC Copley was aware of this, it was rectified. He said that it was unfortunate that this had led the claimant to assume he was being investigated. He said that the process was almost concluded and that report would then be sent to the IPCC.

(79) The claimant’s case was that DCC Hopkins’ email led him to believe he was under no investigation at all. We did not accept that because the email was specifically about the consent issue in respect of sending the dossier to the IPCC. It was however true to say that the claimant was unaware at this point that WYP was representing the complaint by X1 and X2 or that WYP thought there was a case to issue him with a Regulation 16 Notice.

(80) On the 27th of November 2014 the referral was made to the IPCC. The accompanying report from DCI Flindle explained about the consent issue and said that the dossier covered 15 investigations involving 17 police officers, 7 of whom had refused consent for their cases to be sent on. In fact we understood from the evidence that 6 had refused outright and 1 had agreed to their case being included if personal details were redacted i.e. had provided limited consent. It also stated that 2 officers were considering their position and that if they gave permission their cases would be forwarded later, and that 1 officer had not replied at all and that 1 ex-officer had not replied either so their cases were not included.

(81) In our judgment, the outcome of investigations into the consent issue showed that concerns over consent were justified.

(82) There was then email traffic between WYP and the respondent concerning serving a Regulation 16 Notice on the claimant. On 26th November DI Ryan sent draft proposed working to DI Flindle [1173]. DI Flindle replied sending two draft Regulation 16 Notices he’d prepared [1174 to 1180]. DI Ryan ‘s account (which we accepted) was that DCI F’indle thought there was a case for issuing a notice in respect of XI, X2 and leaks to the MEN, but that his view was that the only there were only grounds to issue a Notice in respect of the allegation that the claimant accessed X2’s disciplinary file. DI Ryan said there was no information to support and allegation that the claimant had leaked information to the MEN.

(83) Di Ryan said he spoke to DCI Flindle on the 27th of November and was told that there was a forthcoming Employment Tribunal hearing involving a claim by the claimant. He said that this was the first time he had been told about it. He asked the respondent to confirm that a Regulation 16 Notice could be served on the claimant by early December 2014.

(84) There was then a telephone conference on the 10th of December which included ACC Copley, DCS Rumney and DCS Hull plus DI Ryan and DCI Bottomley. DI Ryan said that WYP provided an overview. His account was that ACC Copley confirmed that she had previously advised the claimant about obtaining permission to make disclosures about other people. She said she was mindful there could be reporting restrictions. She raised the fact that the claimant may have made “confidential disclosures” but that at that time there was no indication that he had done so in relation to X1 or X2”. ACC Copley asked for some additional work to be carried by DI Ryan, specifically that he should explain the rationale as to why it was a misconduct investigation only i.e. not criminal, and to set out the reason why a Regulation 16 Notice (or Notices) should be served.

(85) DI Ryan provided an updated report to DCS Rumney on the 15th of December 2014 [1345 to 1354] He made it very clear that he thought it was important to serve a Regulation 16 Notice in order to interview the claimant formally.

(86) He did not receive approval to do so, and chased it up again on 5th January 2015 asking if the Appropriate Authority had given approval to interview the claimant under a Regulation 16 Notice.

(87) It was not until after the Employment tribunal hearing was over that ACC Copley authorised service of the Notice.

(88) The Notice was signed by DI Ryan and served by him and DI Flindle on 19th January 2015 [1482 to 1484]. The claimant refused to sign it. In terms of the chronology, service of the Notice was the last allegation we had to determine.

(89) There are only two other matters that we think we need to refer to in relation to the chronology going forward. The first is that on 1st April 2015 the claimant’s solicitor sent a letter to the respondent about the Regulation 16 Notice alleging bias on the part of ACC Copley and DCC Hopkins. The consequence of that letter was that ACC Copley ceased to be the Appropriate Authority on Woodmay. The letter itself caused yet another operation (“Essex”). The second is that ACC Shewan became the Appropriate Authority in relation to Woodmay. He very rapidly took a view that no further action should be taken in respect of the claimant and that the case could not be progressed against Mr Elliot because he had retired. There was some delay between ACC Shewan making that decision and the claimant being informed of it. ACC Shewan was crossexamined about the delay in some detail and provided an explanation involving a number of factors including: him being on holiday; and the need to inform X1 and X2 of the outcome. It Is important for us to emphasis that delay in lifting the Notice was not an allegation before us. We mention it merely because it appeared that the claimant was seeking to broaden the allegations before us. Evaluation of witnesses and brief summary of submissions, of far as is relevant

[11]In summary, our assessment was that the witnesses called by the respondent were all straightforward and truthful. We found their evidence to be impressive. It was important that we heard from those witnesses and analysed their evidence as set against the contemporaneous documentation in great detail because the respondent was unable to call ACC Copley who has retired.

[12]Without wishing to go into the submissions in detail, it is fair to say that we accepted what Mr Gorton said in relation to ACC Copley. Whilst it would have been ideal for her to give evidence because the claimant’s case was that she drove forward the process leading to the Service of the Regulation 16 Notice, her absence was not fatal to the respondent’s defence of this claim. It was completely clear from the evidence of DI Ryan and DCI Bottomley that they were frustrated with what they perceived (rightly, in our view) to be stalling of the Woodmay investigation. As Appropriate Authority, ACC Copley was instrumental in delaying service. That was wholly inconsistent with the proposition that she was pushing for disciplinary action against the claimant. The more likely explanation for her action, as stated in out findings of fact, was that she was risk-averse and mindful that any action against the claimant would more likely than not result in further Employment Tribunal proceedings. Put another way, absent ACC Copley’s direct evidence, we were able to conduct what could be described as a forensic analysis of the documentary and witness evidence, in order to identify whether her actions were motivated by protected acts or the protected disclosure.

[13]Our assessment of the claimant’s evidence was that he genuinely believed that he was victimised (using that term to cover the PID and victimisation allegations) because he has championed the rights of black and minority ethnic officers and was committed to doing so because of his role at BAPA. However, there were aspects of his evidence that troubled us. Mr Gorton reproduced certain parts in his skeleton argument, but it was not necessary to reproduce all of them for these purposes. In summary, the claimant’s evidence demonstrated a tendency to exaggerate and to make the most serious of allegations with no factual basis for them. By way of example, during cross-examination the claimant was asked about DI Flindle and said he “absolutely thought he was corrupt”. When pressed on this, the claimant said DI Flindle had been involved in investigations that he believed were dealt with incorrectly and not according to procedure and the law. He was asked to explain how this could amount to corruption rather than for example incompetence His reply was to say DI Flindle had “behaved unlawfully”. There was a further troubling exchange in relation to the letter from his solicitor dated 1st of April 2015 which alleged bias by DCC Hopkins and ACC Copley. The claimant replied that he had not made the allegations – his solicitor, Mr Kumar had. He eventually conceded that he must have agreed to the content of the letter, because Mr Kumar would not have made such allegations unless instructed to.

[14]It is, to say the least, unhelpful to the claimant’s claim or his credibility that he made very serious allegations of a generalised nature without evidence. We did not accept that the very robust and forthright views the claimant expressed about many of the respondent’s witnesses, and indeed other people who did not give evidence, were justified by hard evidence. It may well be that the claimant holds those views, but it seriously undermined the cogency of his evidence.

[15]A further example of this was certain statements made (no doubt on instructions) in Mr Searle’s skeleton argument. For example paragraph 3 stated (as though this was factually correct): “the respondent is known as an institutionally racist organisation”. It then made reference to the respondent’s attempts to tackle institutionalised racism in 1988 adding: “sadly racism still pervades the service.” Understandably, Mr Gorton QC took issue with that and we completely understood why. In paragraph 6 of the submissions the claimant contended the respondent views him as a nuisance and troublemaker adding: “Notwithstanding that his complaints are legitimate, the recent litigation history between the parties only serves to prove the respondent routinely victimises the claimant because of his protected acts.” We have outlined the litigation history of the claimant’s numerous claims against the respondent and it demonstrates no such thing. The position is that all of the complaints which proceeded to trial have now been dismissed, bar the one part of the Holmes Tribunal claim remitted by the Court of Appeal. We make no criticism of Mr Searle, no doubt he was instructed to make those points, but they did not help the claimant’s case in the slightest. The Issues and

The Law

[16]It was not necessary for us to summarise the law because the representatives had accurately done so in their submissions and because this case tuned on the facts. Ultimately it was common ground that despite the volume of evidence there were only two allegations in this case which are examined below.

[17]Firstly, as to protected acts, it was not in dispute that the claimant had carried out such acts (e.g. the earlier Employment Tribunal claims, statements to the media etc.) before the two allegations relied on in these proceedings. As will be clear from the background and issues and our findings of fact we concluded there was one protected disclosure which was made to the IPCC on 5th of November 2014 i.e. the dossier which was a disclosure of information and was protected because it was made to the IPCC. The respondent, of course, had already received the dossier

[18]The first allegation involved a factual enquiry defined by the parties as: “has the claimant proven that the respondent did commence an investigation into him and his dossier?”. It will be clear from our finding of facts that the answer to that question is “no”. There was a fact-find which initially encompassed the BAPA dossier, but eventually became a narrower enquiry into the consent issue which was the result of legitimate concerns. Despite the fact that the outcome showed some officers had not consented to their cases being in the dossier, the respondent took no action against the claimant and, specifically, did not initiate a formal investigation. It was understandable that the claimant thought he was being investigated but if, and to the extent that he was, it was because the dossier contained personal details of cases involving other officers. There was no evidence whatsoever that the claimant’s protected acts or his disclosure influenced the respondent’s action in any way whosoever. Furthermore, it is difficult to see how a fact-find into a legitimate concern over the dossier which resulted in no action against the claimant could be detrimental to him. Put simply, the allegation failed on the facts.

[19]The second allegation related to the service of the Regulation 16 Notice on the claimant on the 19th of January 2015. The short point (which we have perhaps laboured in our findings of fact) is that it was WYP who wanted to serve the Notice and eventually obtained authority to do so after many requests. This was not a claim against WYP. The only way the allegation could have succeeded is if we had accepted that ACC Copley had influenced WYP. Perhaps tactically on the part of the claimant, the allegation was put that way because ACC Copley was not available to give evidence and therefore could be the respondent’s Achilles heel. In fact, the evidence was wholly to the contrary for reasons which are abundantly clear. There was no evidence that the claimant’s Employment Tribunal claims influenced ACC Copley to push for service of the Notice, quite the contrary. There was absolutely no evidence that the claimant’s protected disclosure was an influence either - the genesis of the Regulation 16 Notice was a complaint by X1 and X2 many months before the protected disclosure and which had to be investigated because of possible misconduct by DS Elliot and possible involvement of the claimant. In summary, this allegation also failed on the facts.

[20]The respondent had raised a time limitation point in respect of the first allegation. It was not necessary for us to determine that because the allegation did not succeed on the facts. If we had thought it necessary to decide it, it is likely we would have concluded it was out of time and there was no jurisdiction to hear it, because it was not part of a continuing course of conduct ending with service of the Notice.

[21]In conclusion, and for the above reasons, we decided to dismiss the claimant’s detriment and victimisation claims.

[22]The lengthy history of litigation between these parties is, in our view, most regrettable. It has involved considerable public expenditure by the respondent and by the Employment Tribunal Service. We would recommend that the parties reflect on whether continual litigation is a useful or productive exercise at all. Given that the claimant still works for the respondent, it is high time that the parties find some permanent resolution of the issues between them, without further litigation. We say this in the knowledge that it has been said before by more august bodies than us. It sadly does not appear to have been heeded thus far.