Ms K Wilson v The Cleveland Police and Crime Commissioner and The Chief Constable of Cleveland Police: 2502308/2022
EMPLOYMENT TRIBUNALS
Case No 2502308/2022
Between
Ms K WilsonClaimantThe Cleveland Police and Crime Commissioner (R1) The Chief Constable of Cleveland Police (R2)Respondent
Before
Employment Judge MossMs N Ling (instructed by Counsel) for claimantMr J Arnold (instructed by Counsel) for respondentDate 19 May 2023
JUDGMENT
The Judgment of the Tribunal at this Preliminary Hearing is that:[1]The respondents’ application for the claimant’s claims to be struck out pursuant to Rule 37 of the Employment Tribunals Rules of Procedure 2013 is dismissed.[2]The respondents’ application for deposit orders to be made pursuant to Rule 39 of the Employment Tribunals Rules of Procedure 2013 is dismissed.
REASONS
Judgment in this case having been given orally in the presence of the parties, following a request from the claimant dated 30 May 2023 (not received by me until 14 August 2023), the Tribunal’s reasons for its decision are set out below.
Introduction
[1]A public preliminary hearing was held to determine the respondents’ applications for the claimant’s claims of direct sex and/or race discrimination to be struck out as having no reasonable prospect of success or for deposit orders to be made in the alternative.[2]I had the benefit of skeleton arguments from both parties. There was no dispute regarding the law to be applied and the relevant statutory provisions and key principles emerging from caselaw are set out below.[3]At the relevant time, the claimant was a Chief Officer with Lincolnshire Police. The first respondent is Steve Turner, the Cleveland Police and Crime Commissioner at the time. He was responsible for the appointment of a Chief Constable, including establishing the panel in accordance with the College of Policing Guidance for appointing Chief Officers. The second respondent is the Chief Constable of Cleveland Police, Mark Webster. He was the successful candidate at the conclusion of the second CC process (a process forming part of the claimant’s claims).[4]Three recruitment exercises took place in respect of which the claimant was an applicant and was either not shortlisted or not appointed: Chief Constable November 2021 (first CC process) Chief Constable January 2022 (second CC process) Deputy Chief Constable June 2022 (DCC process)[5]The case concerns the first respondent’s decisions not to appoint the claimant to the role of Chief Constable during the first process, not to short list her for that role during the second process and the second respondent’s decision not to appoint her as Deputy Chief Constable during the third process. The claimant alleges those decisions amounted to less favourable treatment because of her sex, race or both. The claimant describes herself as from an ethnic minority background, specifically mixed Indian and White race. Relevant Legal Framework[6]Rule 37 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 provides that: “(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success…”[7]There are repeated authorities, following the House of Lords’ decision in Anyanwu v South Bank Students Union and South Bank University [2001] IRLR 305, to the effect that strike out is not normally appropriate where there are core disputes of fact (which includes the reasons why decisions were made), most notably in fact-sensitive discrimination claims.[8]The Tribunal should not conduct a mini-trial but should take the claimant’s case at its highest, as the Tribunal is not in a position to properly weigh competing evidence and ‘should not conduct an impromptu mini trial or oral evidence: Mechkarov v Citibank NA [2016] ICR 1121.[9]“Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment, and I am not sure that that exercise is assisted by attempting to gloss the well-understood language of the rule by reference to other phrases or adjectives or by debating the difference in the abstract between ‘exceptional’ and ‘most exceptional’ circumstances or other such phrases as may be found in the authorities. Nevertheless, it remains the case that the hurdle is high, and specifically that it is higher than the test for the making of a deposit order, which is that there should be ‘little reasonable prospect of success’. “… [T]he whole problem with a strike-out is that the appellant has no chance to explore what may lie beneath the surface, in particular by obtaining further disclosure and/or by cross-examination of the relevant witnesses. I am very alive to that. However, in a case of this kind, where there is an ostensibly innocent sequence of events leading to the act complained of, there must be some burden on a claimant to say what reason he or she has to suppose that things are not what they seem and to identify what he or she believes was, or at least may have been, the real story, albeit (as I emphasise) that they are not yet in a position to prove it. “… [I]n a case of this kind, where there is on the face of it a straightforward and well-documented innocent explanation for what occurred, a case cannot be allowed to proceed on the basis of a mere assertion that that explanation is not the true explanation without the claimant being able to advance some basis, even if not yet provable, for that being so. The employment judge cannot be criticised for deciding the application to strike out on the basis of the actual case being advanced.”– per Underhill LJ in Ahir v British Airways plc [2017] EWCA Civ 1392. 10. …in a case that otherwise has no reasonable prospect of success it cannot be right to allow it to proceed simply on the basis that “something might turn up.” That is the position here. It is theoretically possible that in response to skilled cross-examination (the Respondent’s witnesses) might fall over themselves and admit to discrimination for an inadmissible reason. If there is a proposition that such a possibility requires a case to proceed then every…discrimination case that turns to any extent upon the oral evidence, in response to crossexamination, of employer’s witnesses must be allowed to proceed. I do not believe that there is such a principle – per Mitting J in Patel v Lloyds Pharmacy Ltd UKEAT/0418/12.[11]Rule 39 contains the power to make a deposit order. This provides: “(1) Where at a preliminary hearing (under rule 53) the Tribunal considers 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 (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument”.[12]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 c.f.: Hemdan v Ishmail and Another [2017] ICR 486.[13]The power to order a deposit can in principle be exercised where the tribunal had doubts about the inherent likelihood of the claim succeeding. The Tribunal must have a proper basis for doubting the likelihood of the party being able to establish the facts essential to the claim or response – per Elias P in Van Rensburg v Royal Borough of Kingston-upon-Thames EAT 0096/07. Submissions First CC process[14]The claimant’s submissions can be summarised as follows – Neither the claimant nor the other candidate who was interviewed (a white female) were appointed, but the fact that another woman was also treated less favourably than a hypothetical male comparator does not mean that race was not also part of the reason for the claimant being treated less favourably. The respondent extended the time limit by which applications had to be received, most likely to attract a larger pool of candidates. Following the extension of the closing date, a white male candidate applied for the position, though he later dropped out of the process. After the claimant’s interview, the first respondent told her on the telephone that he had been unable to make a decision, would sleep on it and inform the claimant of his decision the following day, yet it is said that the panel was unanimously of the view the claimant was not appointable. The feedback provided to the claimant included that she displayed strong attributes for a Chief Constable. Scoring took place at the shortlisting stage but no scoring matrix has been provided for the interview stage.[15]The first respondent’s submissions can be summarised as follows – The first respondent relies on the other female who was interviewed as an actual comparator. She was also not appointed to the role of Chief Constable in the same process. No male was appointed to the role. The interview panel included two females. In terms of alleged race discrimination, it is argued that it would be difficult to construct a hypothetical comparator that is not white nor of an ethnic minority background that includes Asian descent. Furthermore, it is beyond unlikely that an interviewing panel of six would have such a particular bias as to race when it comes to choosing a Chief Constable. The interview panel was comprised of six people of different backgrounds and experience, one of whom had an ethnic minority background. Both the claimant and the actual comparator scored low in interview and were not appointable. The role remained unfulfilled at the conclusion of the exercise and the claimant was provided with detailed written feedback on 3 December 2021. Cleveland Constabulary was facing many challenges at the time and had been placed in special measures. The reason for the closing date being extended was to enable the first respondent to focus his time and attention on serious, well-publicised allegations that had been made against him. The claimant was not subjected to less favourable treatment because of her race or sex because nobody of any race or sex was appointed and the composition of the panel rendered it highly unlikely that the decision not to appoint the claimant was based on race and/or sex. Second CC process[16]The claimant’s submissions can be summarised as follows – Out of the four applicants, the claimant was the only female and the only candidate who was not shortlisted. In respect of the respondent placing reliance upon blind shortlisting having taken place, the panel involved in the second process was the same as in the first. The interview had taken place on 10 November 2021 with shortlisting for the second CC process due to take place on 24 January 2022. It can not realistically be suggested that the panel did not know who the claimant was when scoring her second application. The claimant had been informed during the first application process that she could submit additional evidence if she wished to do so. Acting upon that advice, she sought to submit a letter from her Chief Constable in ignorance that it was not to be admitted, depriving her of the opportunity to strengthen her application accordingly. The scores from this interview process have been provided and show a very wide variance in marks given by the panel members. Two of the panel members score the claimant 1 out of 5 for overall suitability for the role, while scoring her above 1 on all of the individual competencies. Another panel member scored the claimant 5 for overall suitability for the role, yet scored her 1 for both transparency and integrity. The marks given are capricious, arbitrary and irrational, which raises a significant question mark over the integrity and fairness of the process. There ought to have been a process of moderation of the scores which does not appear to have taken place.[17]The first respondent’s submissions can be summarised as follows – The claimant identified two comparators – the successful candidate (a white male) and another white male who was shortlisted. Having remained in the rank of Assistant Chief Constable following the first CC process, the claimant had been given extensive written feedback and was advised that she would need to show something different for her application to succeed. It is denied that the claimant was advised she could submit additional evidence. Although she may have been identifiable from the anonymised application, she had a distinct advantage having received detailed feedback from the first process and been told she would need to bring something new. A further white male candidate was not shortlisted, not having met the eligibility criteria. The panel consisted of five members, including a female with an ethnic minority background. Shortlisting of the two white males was based on their scores which were considerably higher than the claimant’s score. The candidate with the highest score was appointed to the role and was an experienced Deputy Chief Constable who was able to address the problems that Cleveland Police was facing at the time. DCC process[18]The claimant’s submissions can be summarised as follows – The deadline for this exercise was also extended, following which a white male applied, having been encouraged by the second respondent to do so. Two white males had been approached by the second respondent and invited to apply for the role. Another ethnic minority male who had expressed an interest in the role had been discouraged from applying by the second respondent. Regarding the respondent’s reliance upon a white male not being shortlisted whereas the claimant was, there might have been reasons relating to the white male that were not applicable to the claimant. The claimant scored the same as during the competition for the CC role, despite the fact she was being interviewed for a more junior role with less responsibility. The white male with similar scores who was also not appointable had disclosed that his interview had not gone well, in contrast to the claimant who felt she had interviewed well. The claimant had been encouraged to apply for the position by another Chief Constable, on the basis of her suitability for the position. The claimant requested feedback which should have been straightforward to provide. However, it was delayed by over two and a half months and a special panel had to be convened to give it. The fact of females and/or ethnic minority groups being represented on interview panels does not automatically mean they could not demonstrate bias against appointing somebody of the same sex or ethnic origin.[19]The second respondent’s submissions can be summarised as follows – Three applications for the role of DCC were received. A white male was not shortlisted. The interview panel consisted of four members, including two females, one of whom had an ethnic minority background. The claimant and a white male were interviewed, with neither being appointed. Detailed feedback was provided to the claimant in September 2022. She failed to demonstrate the required skills and experience, sex and race being irrelevant to the decision making. Following a further recruitment round, a female was appointed to the role of DCC, making it less likely that the lack of appointment of the claimant to the role was because of her sex.
Conclusions
[20]Having in mind the high hurdle to be crossed before a claim, and particularly a discrimination claim, should be struck out as having no reasonable prospect of success, I concluded the circumstances of this case did not justify such a draconian step being taken.[21]I considered that there were central facts in dispute requiring evidence relating to them to be heard and for the claimant to be given a chance to explore what may lie beneath the surface by obtaining further disclosure and/or by cross examination of relevant witnesses. I did not consider the claimant to be embarking upon a fishing expedition in the vain hope something might be unearthed. Inferences are drawn from facts, and this was not a case where the factual basis for inferring discrimination was so weak that an arguable case could not be established.[22]In connection with the first CC process, there would need to be a factual dispute resolved concerning whether the panel unanimously decided the claimant was not appointable, yet the first respondent told her he was unable to make a decision and would sleep on it. Or at least there would need to be a means of reconciling those positions and that could only be dealt with in evidence.[23]In relation to the second CC process, the respondent suggests the panel had no way of knowing the sex or race of any candidates, but it was conceded during the hearing that the claimant may well have been recognisable from the anonymised application to a panel that had interviewed her 2-3 months beforehand. In my view that has to be right, given they presumably gave her applications close scrutiny on each occasion for such a senior position and in the context of the challenges the force was facing at that time. In respect of the respondent’s argument that the claimant was at a distinct advantage because she had been given feedback from the first exercise and advised to bring something new and to tailor her application accordingly, part of the claimant’s case is that she did bring something new but was precluded from having it taken into account, contrary to the advice she had been given to do just that. Whether or not she was given such advice is a matter of dispute to be resolved by evidence.[24]The scoring mechanism relating to the shortlisting exercise during the second process is worthy of exploration during evidence. Cautioning myself against making findings at this stage, there may indeed be some force in the argument that the scores are irrational or arbitrary and if the claimant was to persuade the Tribunal along those lines it could call into question the true reason for the claimant not being shortlisted. The scores given to both candidates who were shortlisted for overall suitability for the role of Chief Constable appear to be in line with their scores against the specific assessment criteria, whereas the claimant’s score for overall suitability cannot, on the face of it, be explained by reference to her scores against those criteria. Two panel members gave the claimant an overall score of 1 despite not having scored a 1 against any of the specific criteria while another gave her an overall suitability score of 5, having scored some 1s and mainly 2s against the specific criteria. In connection with that process, as alluded to above, there is also a core factual dispute to be resolved relating to whether the claimant was advised she could provide additional evidence, which she indeed did but had it disregarded.[25]In connection with the DCC process, the delay in providing feedback to the claimant and the fact a special panel had to be convened to provide it may be unremarkable in isolation but might be a further fact from which inferences could be drawn in the claimant’s favour as part of conduct extending over a period. Her case is that there was conscious decision making on the part of the respondents throughout not to appoint her to senior roles because of her sex and/or race. Whether that thread can be established is something to be resolved at a full merits hearing.[26]In respect of reliance placed by the respondents upon the composition of the shortlisting/interview panels and the fact they included females and people from ethnic minority backgrounds, I accepted the submission made on behalf of the claimant that it does not automatically follow that a panel member of a particular sex or ethnic origin could not demonstrate bias against appointing somebody of the same sex or similar ethnic origin to a particular role.[27]The purpose of a Deposit Order is to discourage the pursuit of claims with little prospect of succeeding. I am not to conduct a mini trial on the facts in assessing prospects. If there is one version of events on which the claimant could succeed there should be no discouragement given. I recognise the lesser threshold that applies here, but the reasons I have given for refusing to strike out the claims apply equally to my decision against the making of Deposit Orders.