Commissioner of Police of the Metropolis v Virdi [2009] EWCA Civ 477

Case No A2/2008/1822

[2009] EWCA Civ 477

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Wednesday, 11 th February 2009

Before

LORD JUSTICE LAWS

LORD JUSTICE WALL

LORD JUSTICE MAURICE KAY

Between

COMMISSIONER OF POLICE OF THE METROPOLISAppellant

VIRDIRespondent

(DAR Transcript of

WordWave International Limited

A Merrill Communications Company

190 Fleet Street, London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Mr M Sethi (instructed by Messrs Russell Jones Walker) appeared for Appellant.

Mr C Sheldon (instructed by Ms Andrea Cunningham) appeared for Respondent.

Judgment

[1]This is an appeal, with permission granted by Smith LJ on 4 September 2008, against the order of the Employment Appeal Tribunal (“the EAT”), Underhill J, made on 4 July 2008, allowing the respondent commissioner’s appeal from the judgment of an Employment Tribunal sent to the parties on 8 October 2007.

[2]By their order, the EAT dismissed the appellant’s claim of victimisation under the Race Relations Act 1976, a claim which had succeeded before the ET. The EAT reached its own conclusion on a critical aspect of the merits in light of certain factual mistakes made by the Employment Tribunal, and the overall question in this appeal is whether it was entitled to proceed as it did and to dismiss the claim.

[3]On 2 September 2005 the appellant issued proceedings against the respondent Commissioner of Metropolitan Police alleging discrimination and victimisation within the meaning of the Race Relations Act 1976 and also disability discrimination. That last claim was separately dealt with; we are not concerned with it. After an eight-day hearing the ET upheld the victimisation claim and dismissed the claim of direct discrimination. We are only concerned with the victimisation claim, as was the EAT.

[4]The appellant is a detective sergeant in the Metropolitan Police. He is of Asian ethnic origin. Given the issues in the case the EAT’s exposition of the facts, to be found at paragraphs 4-16 of its judgment, will suffice for the appeal’s disposal and they are incorporated in their entirety in this judgment as follows:

“1. In June 1998 the Claimant brought a claim of racial discrimination against the Commissioner. He was dismissed from the service with effect from 3 March 2000 and brought further proceedings in June 2000 claiming victimisation. His claim of racial discrimination was upheld by a Tribunal in August 2000. It appears, though we do not have any details, that he received a substantial award of compensation. In September 2000 the Metropolitan Police Authority announced an enquiry into the way that the Claimant had been treated. He was reinstated with effect from 30 November 2000, though he did not resume duties (and then initially only on a “recuperative” basis) until February 2002. In December 2001 the Authority’s report was published. It was critical of the Metropolitan Police in a number of respects and made numerous recommendations for improvements in their practices and procedures. His case was also examined as part of a later enquiry – “the Morris Inquiry” - conducted by the Authority into professional standards and employment issues in the Force. The details of these events are not material to the present case but the fact that the Claimant had featured in a case which had attracted a great deal of publicity both within the Metropolitan Police and more widely, and in which the Force had been the subject of serious criticism, is important. 2. Following his return to active duty the Claimant’s work was largely in specialist fields. In early 2005, when he was working in the Serious Crime Directorate (“SCD”), he applied for promotion to the rank of detective inspector. The procedural position about such applications is complicated by the fact that there were at the time two processes operating in parallel, designated respectively as OSPRE and (thanks to a particularly ingenious acronymist) TOWBAR; but in this appeal we are concerned only with TOWBAR, which was a new process and being applied for the first time to promotions from sergeant to inspector. Under TOWBAR a candidate was required to demonstrate eight specified competencies - “strategic perspective”, “maximising potential”, “respect for race and diversity”, “community and customer focus”, “effective communication”, “problem solving”, “planning and organising”, and “personal responsibility”

. Despite the somewhat general descriptions of the titles, the notes under each head identified a number of more concrete skills and types of experience that were required, with – understandably – a focus in the case of many of the competencies on investigative experience. 3. Applications for promotion to detective inspector under the TOWBAR process were to be considered in the following stages: (1) Applications would initially be considered by a Local Recommending Panel (“LRP”), local to the candidate’s duty station. (2) Disappointed applicants could appeal to a Central Review Panel (“CRP”). But the CRP was also required, in order to try to ensure common standards across different units, to review of its own motion a substantial sample of all applications, both unsuccessful and successful; in practice in the year with which we are concerned it reviewed some 60 per cent of all applications. On such a review it had, among other things, the power to overturn recommendations from the LRP if it believed that the quality of the evidence that the candidate had demonstrated the required competencies fell below the required standard. Guidance as to how its role should be performed was issued to the CRP in a briefing paper. We should note in particular para. 4.3 of the paper, which was in the following terms:

‘A broad interpretation is placed on the questions seeking evidence on the application form, so that no candidate is disadvantaged by their career background, for example those in specialist roles.’ (3) Following the conclusion of the CRP process, there was to be a “Final Panel”. This was, as the Tribunal put it (Reasons para. 4.36), “a quality assurance vehicle, taking an overview of the whole process”. In other words, the Panel would examine the results as a whole, checking that proper procedures had been followed and looking for any patterns that might suggest systemic problems. It was not an appeal process, though the Panel had power to revisit decisions in any cases where the review indicated that that was necessary. (4) Applicants disappointed by a decision of the CRP could appeal to an Appeal Panel on the grounds that the decision was either an “abuse of process” or “perverse”: these terms were the subject of formal definitions which we need not set out here (see para. 4.14 of the Tribunal’s Reasons). Although the nomenclature might suggest otherwise, such an appeal fell to be exercised after the review by the Final Panel. 4. The Claimant submitted an application on the prescribed form. He took advice when drafting his application from Detective Chief Superintendent Bearchell, who had been mentoring him and who fully supported his candidature. They both appreciated that the Claimant’s long absence from active duties, and the somewhat limited nature of the work that he had been doing since his return, meant that demonstrating all eight competencies (particularly in the field of investigative work) would not be straightforward; and in some cases he would have to rely on showing that skills which he had demonstrated in his recent work were transferable to different contexts. Part of the advice which DCS Bearchell gave the Claimant was that he should not attempt in drafting his application to refer to experience prior to his dismissal, which would inevitably be many years previously. 5. The Claimant’s application was endorsed by the LRP, though it was initially regarded as “borderline”. 6. The Claimant’s application was one of those considered by the CRP. The panel considering the Claimant’s application comprised three Detective Superintendents and an HR officer. The Chairman of the Panel was Det. Supt. Worker. The procedures prescribed for the CRP in handling an application were not followed to the letter; but in substance each of the three officers believed that the Claimant had not demonstrated all the required competencies, and Det. Supt. Worker made the decision to reject the application. A feedback e-mail to the Claimant dated 12 May 2005 gave the views of the panel, with additional comments specifically from the Chairman. The views of the panel read as follows: “Strategic Perspective – evidence re wider issues affecting MPS, no detail of how candidate has contributed. How has this been achieved. Maximising Potential – general example not specific – inform constable how? No evidence of development investigative skills. Respect for Race and Diversity – How was confidentiality respected – what was difficult message. Overall meets standard of competency. Community and Customer Focus - Evidence meets standard. Problem solving – No evidence of systematic approach – risk not evidenced. Not clear overall role in problem solving – links to investigation. Planning and Organisation – Complex investigation? Contingency plans? Milestones? Best Value? – Skills? Personal Responsibility – Complex investigation? Lack of confidence in MPS – what were obstacles? Mistakes? Feedback/criticism? Openness and honesty? Majority of competency absent.” (“Effective communication” is missing in the original.) The Chairman’s comments were: “SP – Although within the SP box the evidence falls short elsewhere in the form is additional evidence. MP – There is no evidence and describes predominantly a process not an example. The one example has no evidence and is singular and lower level. RRD – A powerful/strong evidenced examples as is CCF. Effective Communication – is poorly presented and lacks evidence but my personal knowledge elevates this. PS – Not an investigation and does not describe options. P&O – Again not a ‘complex investigation’

‘The clear view of the CRP – not, the Tribunal finds, motivated by racial or other improper considerations – was that for the important and demanding role of a detective inspector – an immediate appointment to which selection for TOWBAR would automatically entail – relatively recent practical knowledge, skills and significant experience of the traditional detective investigatory role was essential. Such candidates if appointed would be expected on taking the post to advise and lead teams of detectives and others investigating serious incidents of alleged crime. This belief and attitude was clearly entertained by the members of the CRP as the Chairman of their panel expressed in evidence … . They saw the role of the detective as highly specialised requiring leaders with similar skills and honestly considered the Claimant had not demonstrated that he was qualified to an appropriate level. It may be that that attitude was outdated and wrong; but the Tribunal saw no material upon which it could properly infer that a white comparator … putting forward an application in similar terms to that put forward by the Claimant, would not have been similarly rejected by the panel. Indeed, it seemed to the Tribunal that such a comparator would have been rejected, given the importance members of the panel afforded to the need for demonstration of traditional investigatory experience on the part of candidates. Rejection would have followed any application deficient in those aspects highlighted by the CRP irrespective of the race, colour or ethnic origin of the applicant.’

Elsewhere the Tribunal refers to the thinking which it attributes to the CRP as “the traditional approach”: we adopt that as a useful shorthand. 8. Because of the sensitivity of the matter by reason of the Claimant’s previous complaints against the Force, the CRP’s decision was notified to, among others, the Director of Human Resources, Mr. Tiplady. He thought it important to check that the application had been handled correctly. At his request, Deputy Assistant Commissioner Roberts, the Force’s Director of Training and Development, carried out a “quick review” (his own phrase) and satisfied himself that that was indeed the case: we will refer to this as “the Roberts review”. DAC Roberts communicated his view in an e-mail dated 16 May 2005 to Mr. Tiplady and two of his HR colleagues (one of whom, Mr. Hambleton, had been appointed to chair the Final Panel) and to two other senior officers in SCD, Superintendent Taylor and Deputy Assistant Commissioner Yates. The e-mail read (so far as relevant to the points on this appeal):

‘I have undertaken a quick review of the evidence supplied by DS Virdi and supplemented on behalf of AC Ghaffur. On the face of the papers I can see nothing wrong with the conclusions of the moderating panel [i.e. the CRP] and thus support the decision already made and communicated to DS Virdi – i.e. that he has failed the process. Having spoken to D. Supt. Taylor in SCD I am aware that DS Virdi intends to formally appeal against the TOWBAR process but that he is also due in the following week to take OSPRE Part 2. On this basis it would be inappropriate for me to examine the detailed processes before the appeal grounds are received.’ 9. The Final Panel met on 18 May 2005. One of the exercises which it carried out as part of its review led it to conclude that it ought to review all the cases in which the CRP had overturned the recommendation of the LRP. That should have meant that it considered the Claimant’s application, but it did not do so because the Panel was told that his application (though he was not identified by name) was “already being reviewed at senior level and was not available to the meeting”. In the event the decision of the CRP was upheld in all the cases considered (which numbered twelve). 10. The Claimant appealed against the decision of the CRP. He used a printed “Appeals Proforma”. Section B of the form, headed “Grounds of Appeal”, provided boxes titled “abuse of process” and “perverse decision”: he ticked both. There was then a box for “Appeal Details”. In this he included a fairly detailed exposition of his case. He dealt in turn with the four particular competencies which, as he read it, the CRP had held not to be demonstrated. He then said this: ‘In conclusion I believe that the CRP assessed my application on a narrow basis thereby excluding my application. The CRP has failed to notice that I have had a period of FOUR years of forced absence from the MPS, I was posted to my current role due to my health conditions. My current duties prohibit evidence within the narrow criteria. The examples given are recent as I was advised to use these rather than historic ones from my career especially in my present rank of thirteen years. Although the CRP were looking for examples in the narrow sense but have failed to recognise that skills of individuals can be broader than that. This present system of selection to specialist posts according to the findings of MORRIS inquiry does not allow candidates to show other skills, experiences and enthusiasm required to be promoted/appointed as in this present TOWBAR application. Fairness appears not to be present. I was disappointed that this process of selection was conducted during the OSPRE Part II process and annoyed that my result was given to my OCU commander a few days before I was to sit the exam whilst my colleagues applying for the same process were informed of the result on 20 May – after the Part II had concluded. The process has shown a degree of victimisation towards myself. Finally the CRP viewed my application on the narrow restrictions whilst my local panel took the opposing broader view.’

Although that is a little diffuse, two general points can clearly be discerned which go beyond the Claimant’s particular responses in relation to the four competencies. First, he was saying that the CRP had “assessed my application on a narrow basis”, failing to note that his peculiar recent history made it impossible for him to produce evidence of the competencies in question “within the narrow criteria”. Although there is no specific reference to para. 4.3 of the briefing to the CRP (see para. 5 (2) above), the point made about the Morris inquiry was essentially the same. Secondly, he referred to the fact that he had been advised (that is, by DCS Bearchell, although he did not name him) to seek to demonstrate his competencies by reference to recent rather than “historic” experience (cf. para. 7 above). The Claimant’s local Detective Chief Inspector supported his appeal, making a similar point to the effect that the CRP had failed to take a “broad approach” and had not considered whether his demonstrated skills might be transferable. 11. The Appeal Panel considered the Claimant’s appeal on 2 June 2005. We should set out para. 4.38 of the Tribunal’s Reasons, which contain its main findings as to how the appeal was conducted. It reads as follows:

‘…The panel comprised its Chair – Commander Susan Wilkinson, who was joined by Detective Chief Superintendent Benjamin, Business Manager David Prebble, Detective Chief Inspector Kevin O’

Leary, Detective Superintendent Sue Hill, with Mark Crake observing on behalf of the Police Federation. A number of members of the Panel gave evidence to the Tribunal [we were in fact told it was only two, Cmdr. Wilkinson and Det. Supt. Hill]. The Tribunal was somewhat disappointed that Ms Wilkinson, who had been provided with instructions as to how the appeals should be conducted, failed to provide those to the Tribunal and indeed failed to take, or certainly did not produce, any notes of the progress of the matter before the appeal panel. In considering the appeal, she did not take account of Mr Virdi’s assertion that he had been prevented from presenting the CRP with relevant material relating to investigations by him earlier in his career because he had been advised to concentrate on the last three years. She also seems to have failed to deal with his assertion that he should not have [been] given his results immediately before sitting OSPRE. Neither did the panel address the point he made about the necessity for the CTP to take a broad view of candidates, given that disadvantage would attend those in specialist posts were they not to do so.’ The Claimant’s appeal was only one of over twenty appeals considered on the same day. As we understand it, the appeal consisted of a consideration of the written materials only: there was no hearing. 12. The Claimant’s appeal was unsuccessful. The Panel gave its reasons as follows:

‘The appeals panel have reviewed the candidate’s application, appeal and outcome of CRP. The appeals panel take the view that the candidate provided generalised evidence in many of the competencies and did not show specifically what he did. The panel agree with the findings of the CRP and the comments against competencies. The candidate has not evidenced achievement of competency for the target rank. In consideration of this appeal the panel took account of the candidate’s evidence and the comments made by the recommending panel. Appeal dismissed.’ 13. In the course (again) of the part of the Reasons dealing with the claim of discrimination, the Tribunal made the following finding about the decision of the Appeal Panel (at para. 7.8 of the Reasons): ‘[The Claimant’s grounds of appeal] were not, in our view, adequately considered by the appeal panel. We were to some extent hampered in our consideration of the appeal panel’s discharge of its responsibilities given that the methodology and processes adopted by the appeal panel, the guidance that the panel had been given and instructions on how it was to operate were not available and no notes of the individual appeal were produced. It seemed to the Tribunal that the appeal panel confined itself to applying the criteria on the same basis as had the CRP, without exploring the matters as contended by the Claimant – not even looking into the substance of his concerns. In the absence of the information mentioned above, the Tribunal cannot be satisfied that their conclusion that the Claimant “provided only generalised evidence in many competencies and did not show what he did” was not wrongly determined. It seemed to the Tribunal that the process was shoddily operated and that it was informed by the same considerations as brought the CRP to its conclusion, namely that only somebody who had undertaken true detective investigatory work in the past was suited for promotion through the TOWBAR procedure. This was made clear to the Tribunal by the evidence of the panel members from whom we heard. Although the Claimant specified a number of issues which caused the Tribunal concern so that in the absence of proof from the Respondent we could have found a case of discrimination established albeit poorly presented, we were satisfied by the Respondent that their rejection of the Claimant’s application was not on the grounds of his race but stemmed from similar considerations from those expressed in more detail above.’

Two points should be noted about that passage: (1) In the final sentence the Tribunal makes an explicit factual finding that the reason for the Panel’s rejection of the appeal (and thus the application) was its acceptance of the “traditional approach” espoused by the CRP. (The actual phrase used is “stemmed from”; but that is clearly meant to mean the same as “the grounds for” which appears in the first part of the sentence.) (2) What the Tribunal criticised about the approach of the Panel was, specifically, its failure to engage with the two general points made in the Claimant’s grounds of appeal which we have noted at para. 13 above: it simply applied the same criteria as the CRP without considering the submission that those criteria prejudiced officers with limited or specialist experience, and it did not take account of the advice which he was given by DCS Bearchell. THE LAW 1. It is convenient at this stage to summarise the law relating to victimisation, so far as relevant to the present appeal. 2. Section 2 (1) of the 1976 Act provides as follows:

‘A person (‘the discriminator’) discriminates against another person (‘the person victimised’) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that [the person victimised has done an act of one of the kinds listed at (a)-(d) (“a protected act”)].’ 3. It is now well-established that the phrase “by reason that” (as also “on the ground that” – the two phrases are interchangeable in this field) requires the tribunal to answer the questions “why did the alleged discriminator act as he did? what, consciously or unconsciously, was his reason ?”: see per Lord Nicholls in Chief Constable of West Yorkshire Police v Khan[2001] ICR 1065, at p. 1072 D-E. As Lord Nicholls points out, that is a subjective question, requiring a consideration of the mental processes (conscious or unconscious) of the decision-taker(s) (see Nagarajan v London Regional Transport[1999] ICR 877, at p. 884F). To put it another way (but still using terminology employed by Lord Nicholls), the question is “what motivated the alleged discriminator to act as he did?” (though NB that that is not necessarily the same as asking what was his motive). The authorities also establish that victimisation is made out if the prohibited ground is found to have formed any significant part of the putative discriminator’s motivation: it does not have to have been the only, or indeed the main, reason.” ‘A broad interpretation is placed on the questions seeking evidence on the application form, so that no candidate is disadvantaged by their career background, for example those in specialist roles.’ “Strategic Perspective – evidence re wider issues affecting MPS, no detail of how candidate has contributed. How has this been achieved. Maximising Potential – general example not specific – inform constable how? No evidence of development investigative skills. Respect for Race and Diversity – How was confidentiality respected – what was difficult message. Overall meets standard of competency. Community and Customer Focus - Evidence meets standard. Problem solving – No evidence of systematic approach – risk not evidenced. Not clear overall role in problem solving – links to investigation. Planning and Organisation – Complex investigation? Contingency plans? Milestones? Best Value? – Skills? Personal Responsibility – Complex investigation? Lack of confidence in MPS – what were obstacles? Mistakes? Feedback/criticism? Openness and honesty? Majority of competency absent.” “SP – Although within the SP box the evidence falls short elsewhere in the form is additional evidence. MP – There is no evidence and describes predominantly a process not an example. The one example has no evidence and is singular and lower level. RRD – A powerful/strong evidenced examples as is CCF. Effective Communication – is poorly presented and lacks evidence but my personal knowledge elevates this. PS – Not an investigation and does not describe options. P&O – Again not a ‘complex investigation’

. Generic evidence for P&O is present but not within an investigation arena as all are assessed against. PR – Once again not a ‘complex investigation’. Clearly a strategic example. The candidate refers to it as an ‘investigation’ or an investigative element within it. But ends describing it as ‘research arena’ supported by line manager as a ‘project’.” ‘The clear view of the CRP – not, the Tribunal finds, motivated by racial or other improper considerations – was that for the important and demanding role of a detective inspector – an immediate appointment to which selection for TOWBAR would automatically entail – relatively recent practical knowledge, skills and significant experience of the traditional detective investigatory role was essential. Such candidates if appointed would be expected on taking the post to advise and lead teams of detectives and others investigating serious incidents of alleged crime. This belief and attitude was clearly entertained by the members of the CRP as the Chairman of their panel expressed in evidence … . They saw the role of the detective as highly specialised requiring leaders with similar skills and honestly considered the Claimant had not demonstrated that he was qualified to an appropriate level. It may be that that attitude was outdated and wrong; but the Tribunal saw no material upon which it could properly infer that a white comparator … putting forward an application in similar terms to that put forward by the Claimant, would not have been similarly rejected by the panel. Indeed, it seemed to the Tribunal that such a comparator would have been rejected, given the importance members of the panel afforded to the need for demonstration of traditional investigatory experience on the part of candidates. Rejection would have followed any application deficient in those aspects highlighted by the CRP irrespective of the race, colour or ethnic origin of the applicant.’ ‘I have undertaken a quick review of the evidence supplied by DS Virdi and supplemented on behalf of AC Ghaffur. On the face of the papers I can see nothing wrong with the conclusions of the moderating panel [i.e. the CRP] and thus support the decision already made and communicated to DS Virdi – i.e. that he has failed the process. Having spoken to D. Supt. Taylor in SCD I am aware that DS Virdi intends to formally appeal against the TOWBAR process but that he is also due in the following week to take OSPRE Part 2. On this basis it would be inappropriate for me to examine the detailed processes before the appeal grounds are received.’ ‘In conclusion I believe that the CRP assessed my application on a narrow basis thereby excluding my application. The CRP has failed to notice that I have had a period of FOUR years of forced absence from the MPS, I was posted to my current role due to my health conditions. My current duties prohibit evidence within the narrow criteria. The examples given are recent as I was advised to use these rather than historic ones from my career especially in my present rank of thirteen years. Although the CRP were looking for examples in the narrow sense but have failed to recognise that skills of individuals can be broader than that. This present system of selection to specialist posts according to the findings of MORRIS inquiry does not allow candidates to show other skills, experiences and enthusiasm required to be promoted/appointed as in this present TOWBAR application. Fairness appears not to be present. I was disappointed that this process of selection was conducted during the OSPRE Part II process and annoyed that my result was given to my OCU commander a few days before I was to sit the exam whilst my colleagues applying for the same process were informed of the result on 20 May – after the Part II had concluded. The process has shown a degree of victimisation towards myself. Finally the CRP viewed my application on the narrow restrictions whilst my local panel took the opposing broader view.’ ‘The appeals panel have reviewed the candidate’s application, appeal and outcome of CRP. The appeals panel take the view that the candidate provided generalised evidence in many of the competencies and did not show specifically what he did. The panel agree with the findings of the CRP and the comments against competencies. The candidate has not evidenced achievement of competency for the target rank. In consideration of this appeal the panel took account of the candidate’s evidence and the comments made by the recommending panel. Appeal dismissed.’ ‘[The Claimant’s grounds of appeal] were not, in our view, adequately considered by the appeal panel. We were to some extent hampered in our consideration of the appeal panel’s discharge of its responsibilities given that the methodology and processes adopted by the appeal panel, the guidance that the panel had been given and instructions on how it was to operate were not available and no notes of the individual appeal were produced. It seemed to the Tribunal that the appeal panel confined itself to applying the criteria on the same basis as had the CRP, without exploring the matters as contended by the Claimant – not even looking into the substance of his concerns. In the absence of the information mentioned above, the Tribunal cannot be satisfied that their conclusion that the Claimant “provided only generalised evidence in many competencies and did not show what he did” was not wrongly determined. It seemed to the Tribunal that the process was shoddily operated and that it was informed by the same considerations as brought the CRP to its conclusion, namely that only somebody who had undertaken true detective investigatory work in the past was suited for promotion through the TOWBAR procedure. This was made clear to the Tribunal by the evidence of the panel members from whom we heard. Although the Claimant specified a number of issues which caused the Tribunal concern so that in the absence of proof from the Respondent we could have found a case of discrimination established albeit poorly presented, we were satisfied by the Respondent that their rejection of the Claimant’s application was not on the grounds of his race but stemmed from similar considerations from those expressed in more detail above.’ THE LAW ‘A person (‘the discriminator’) discriminates against another person (‘the person victimised’) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that [the person victimised has done an act of one of the kinds listed at (a)-(d) (“a protected act”)].’

THE LAW

[5]The relevant statutory provision in relation to the victimisation claim is Section 2(1) of the Race Relations Act 1976, which reads as follows:

“(1) A person ( “the discriminator") discriminates against another person ( “the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has [done an act of one of the kinds listed at (a)-(d), a protected Act]”

[6]The victimisation claim brought by the appellant was pleaded as follows in the amended grounds of claim (paragraph 37 in respect to the first respondent): ^^ “…the Claimant has been subjected to victimisation contrary to Section 2 of the Race Relations Act 1976. The protected acts relied on are those referred to at paragraph 1 and 22. The protected acts were made in good faith. 38. The act complained of is the Claimants unsuccessful Towbar application resulting from the decisions of the central review of appeal panels”

[7]I should explain that the protected acts were essentially the appellant’s two previous claims in the Employment Tribunal outlined by the EAT at the outset of their account of the facts which I have set out. There was a third protected act relating to allegations made by him in the current proceedings.

[8]The Employment Tribunal’s conclusion as to the victimisation claim is contained at paragraph 7.9–7.12 of their determination. The EAT set out the whole of this passage and so should we:

“Victimisation 7.9 The victimisation of the Claimant was said to lie in the whole course of his treatment following his decision to apply for admittance to the TOWBAR scheme. The Tribunal has already indicated that it was satisfied that the advice he received from Mr Bearchell and the recommendation of the CRP were not in themselves acts of less favourable treatment and we hold to that view looking at those acts against all of the matters of which Mr Virdi complains. There is no doubt, however, that Mr Virdi was treated differently to somebody who had not done a protected act as a number of witnesses for the Respondent freely admitted. For example, Mr. Tiplady sought the opinion of Mr Roberts of the validity or otherwise of the decision of the CRP not to recommend Mr Virdi for promotion. He did this, he said, because he was fully aware of the history of engagement between Mr Virdi and the Metropolitan Police and he wished to satisfy himself that there would be no ground for further action by the Claimant against the Service. 7.10 The Tribunal has not found the question of victimisation easy to determine and, in arriving at its conclusion, has been influenced by a number of matters not least of which is the fact that there are gaps in the evidence and explanations provided by the Respondent. The Tribunal also bears in mind that discrimination can be unconscious (Nagarajan). In arriving at our conclusion regarding victimisation, we have had particular regard to the following: - The appeal panel members all served with SCD. - SCD was the police division which bore the brunt of the Claimant’s earlier claim resulting in the Metropolitan Police being ordered to pay a very substantial sum of money by way of compensation. - The way in which members were appointed to the various panels was far from clear; for example the Chair of the appeal panel could not recall who had appointed her (although later she admitted in cross-examination that it may well have been Mr Roberts). - The criteria by which the appeal was to be decided were not produced to the Tribunal and the Chair of the panel could not recall exactly what instructions she had received in this regard. - All members of the panel were aware of Mr Virdi’s history. - No notes of the appeal process were made available to the Tribunal. - The Claimant’s main contentions, namely that he had wrongly been advised to withhold evidence of his earlier experience – perhaps most importantly what that earlier experience actually was – and that the CRP had been specifically enjoined to approach its task by taking a broad view of experience of candidates who had been placed in specialist posts, had been ignored – they seem to have received no consideration whatsoever from the panel. 7.11 Coupled with the foregoing, other unique features attended the handling of Mr Virdi’s application. The Respondent had established a final panel whose function was to quality assure the whole process, particularly bearing in mind it was the first time it had been applied to the detective sergeant to detective inspector ranks. The Claimant’s application was not considered by the final panel because it had been taken out of the process for a separate review, at the behest of the Head of Human Resources, Mr Tiplady. He had passed the document to Mr Roberts who, rather than simply report the result of his findings (that the application had been treated unexceptionably), wrote, in addition to Mr Tiplady, to John Yates (SD3) Michael Taylor, the Claimant’s line manager (SCD 3), Charles Phelps (HR5) and Colin Hambledon (HR5) and the man who had been appointed to chair the final review panel. It was the view of the Tribunal that disseminating this material so widely carried with it a significant risk that Mr Roberts’ views would be tantamount to an order and likely come to the knowledge one way or another of those who were later to conduct the appeal (which was heard on 2 June 2005). 7.12 The evidence produced findings of primary fact, summarised here, which led the Tribunal to draw an inference of discrimination. The Tribunal had been satisfied that in supporting the CRP’s finding regarding the insufficiency of evidence the Appeal Panel was taking a traditional view of the detective’s and detective inspector’s roles, and their evidence so established. That evidence did not persuade us that we were wrong in drawing the inference that a significant cause of the failure to deal thoroughly with the Claimant’s grounds of appeal stemmed from the knowledge of his history. The Tribunal concluded that the Claimant, by reason of the protected act, was treated less favourably than would have been one who had not done the protected acts; there is no doubt in the Tribunal’s view that the appeal panel, at the very least subconsciously, was affected by their knowledge of the Claimant and of the action he had taken. Had this not been the case, the Tribunal believes they would have recognised that the Claimant was contending that the decision of the CRP was perverse set against the guidance which governed or should have governed their approach to his claim and consequently he lost – that is suffered detriment – by losing an opportunity for his application to go forward.”

[9]The EAT, at paragraph 22, described this reasoning as not very clearly set out. I feel, with respect to the ET, that I would go further: it is very Delphic indeed. The EAT, however, analysed it in a very painstaking manner. Their distillation of the ET’s reasoning may be described as follows: 1) The only victimisation found was on the part of the appeal panel, not the CRP; 2) the first sentence of paragraph 7-12 shows that the ET drew inference of discrimination -- that is, in context, victimisation -- from the findings of fact expressed in 7.9–7.11; 3) paragraphs 7.9 and 7.11 show that the appellant’s application was handled differently from those of other candidates who had not done a protected act. The difference is seemingly consisted in the request to DAC Roberts to carry out a special review of the way the CRP have handled the appellant’s case and the consequent exclusion of his case from review by the final panel. 4) The victimisation actually found consisted in a failure to deal thoroughly -- or, it may be, Mr Sethi would say, at all -- with the appellant’s grounds of appeal by reason of the appeal panel’s knowledge of his history. The EAT understood this (paragraph 22.4) to mean that, but for the panel’s knowledge of the appellant’s history, they might have been persuaded that the “traditional approach” (that is, that only a person who had undertaken true detective investigatory work in the past was suitable for promotion to inspector) was actually our approach. Now, this seems to me to be a sensible and reasonable gloss by the EAT of the way in which the ET described their conclusion. 5) Overall, looking at the ET’s reasoning rather more broadly, the ET concluded that the effect of the appeal panel’s knowledge of the appellant’s history -- the protected acts -- led them into a failure to recognise the force or potential force of the appellant’s arguments, and therefore implicitly had a deleterious effect on his prospects of success.

[10]While I would accept the account given by the EAT of the ET’s reasoning, I have to say I find that reasoning itself to be tenuous. In essence it comes to this, I think: The appeal panel took an overly narrow and superficial view of the appellant’s case because of their knowledge of the protective acts. The EAT concluded that this conclusion was flawed by an error of law. The error consisted in a misunderstanding by the ET of an uncontentious established matter of fact, and the error is identified by reference to the first two bullet points in paragraph 7.10 of the ET’s decision, which I repeat for convenience:

“The appeal panel members all served with SCD. SCD was the police division which bore the brunt of the Claimant’s earlier claim resulting in the Metropolitan Police being ordered to pay a very substantial sum of money by way of compensation.”

[11]It is common ground, as stated by the EAT at paragraph 25, that the second bullet is simply wrong. The division which “bore the brunt of the appellant’s earlier claim” was not the SCD but a different directorate, the Directorate of Professional Standards (“DPS”). The EAT accepted the submission of counsel for the respondent that the second bullet was meant to be read with the first, and the first is all but correct save for one member, Mr Prebble; the members of the appeal panel were indeed members of the SCD. The EAT said this at paragraph 26:

“…the point that the Tribunal was intending to make was plainly that because of the trouble which the Claimant had caused for their own directorate, a panel consisting of members of SCD would find it particularly difficult to put his previous history out of their minds. Since SCD was not in fact the target of the earlier complaints, such a point would be obviously misconceived.”

[12]Mr Sethi for the appellant sought, and seeks before us, to put forward a different explanation of these two bullet points. The EAT took him to submit that the significance of the first bullet was that the panel was too homogeneous. Mr Sethi says that was unsubtle or indeed a misunderstanding of what he had submitted; but that, with respect to him, is insubstantial. He says of the second bullet point that the significance of it was to demonstrate a link between the Roberts review and the “thinking” (as it is put by his skeleton, paragraph 14) of the appeal panel. Mr Sethi submits this was of particular importance. These arguments, about which I will have a little more to say, are summarised by the EAT at paragraph 27. They are redeployed by Mr Sethi in his skeleton (paragraphs 7-17). I should cite the passages in the EAT’s determination where they are first dealt with: “Generally, we would be much more ready to believe that the Tribunal expressed itself poorly, or made a simple slip of the tongue or keyboard, than that it had made a serious mistake about the evidence. But after careful consideration we are persuaded that the Tribunal did indeed make the mistake alleged by Mr. Sheldon. The starting-point is that the two bullets certainly read as if they were intended as a pair: if they are not, it is not clear what the point of the first bullet is. Nor do Mr. Sethi’s suggested alternative explanations fit the drafting very well. It would be impossible for the reader to understand the first bullet as a point about over-homogeneity; and, if it were, it is hard to see how it would support the inference of victimisation. As to the second bullet, if “SCD” were corrected to “DPS”, it would, again, be impossible for the reader to understand what point was being made: further, the point which Mr. Sethi identifies has no obvious connection with the thinking of the Appeal Panel, which is the subject of all the other bullets. We also note that in para. 5 of the Reasons, where the Tribunal sets out the parties’ submissions, it says this: ‘The Claimant emphasised that to him it seemed surprising that 75% of applicants from a visible ethnic minority had actually been reviewed by the CRP – whose processes depended upon random selection. The Claimant also pointed out that all panel members were of a non-visible ethnic minority origin and that two of them were from SCD – the division which had failed the Claimant and in relation to which he had taken previous actions resulting in a finding of discrimination and a substantial award of damages against the Metropolitan Police Service.’ The reference in the second sentence to “panel members” might only be to members of the CRP, being the panel referred to in the previous sentence. But, whether or not that is what the Tribunal intended, the passage clearly shows that the importance which it attached to panel members being from the SCD was indeed the trouble which he was (wrongly) thought to have caused to that division. It seems to us in the highest degree unlikely that the Tribunal was intending anything different when it addressed the same point at para. 7.10. We thus accept Mr Sheldon’s submission that the Tribunal mistakenly believed that the SCD, to which all the members of the Appeal Panel belonged, had borne the brunt of the criticisms generated by the Claimant’s earlier complaints and so would find it peculiarly difficult to remain uninfluenced by that earlier history. We agree with Mr. Sheldon that this mistake goes to the heart of the Tribunal’s reasoning in support of the “inference of discrimination” drawn in para. 7.12. Para. 7.10 sets out the principal factors about the Appeal Tribunal’s approach on which it relied (see para. 22 (2) and (3) above). The Tribunal acknowledged that it did not find the question of victimisation easy. The SCD point constituted the first two bullets in the list and, if it had been correct, would plainly have been a point of considerable weight, particularly since in our judgment most of the other points in the list are, to put it no higher, not particularly compelling (see paras. 43-46 below). In those circumstances we are satisfied that it constitutes, or gives rise to, an error of law. Put formally, the Tribunal made a finding, on a fact integral to its reasoning, for which there was no evidence: in another jurisdiction it might be categorised as “error as to an established fact.” ‘The Claimant emphasised that to him it seemed surprising that 75% of applicants from a visible ethnic minority had actually been reviewed by the CRP – whose processes depended upon random selection. The Claimant also pointed out that all panel members were of a non-visible ethnic minority origin and that two of them were from SCD – the division which had failed the Claimant and in relation to which he had taken previous actions resulting in a finding of discrimination and a substantial award of damages against the Metropolitan Police Service.’

[13]I consider this reasoning to be correct. Essentially, Mr Sethi has not undermined the critical finding of the Employment Tribunal as identified by the EAT at paragraph 26, namely that the mistaken view of the facts, and not the effect of Mr Roberts’ actions, was what gave rise to the victimisation; but, as we shall see in a moment, there is a little more to say.

[14]Given the mistake -- however it is precisely to be construed -- made by the ET, the appeal fell to be allowed by the EAT, and that, as I understand it, is effectively common ground. The principle thrust of Mr Sethi’s argument has been directed to the EAT’s order made in consequence. They did not, as I indicated at the outset, remit the matter, but dismissed the claim. The basis of their doing so was that, if one discounts the erroneous findings in the first two bullets at paragraph 7.10, there were no other findings of fact by the Employment Tribunal which could, in reason, justify a conclusion of victimisation. It followed that that conclusion was perverse or legally unsustainable, and the case fell to be dismissed, not remitted. The EAT have explained what they made of the first two bullet points in paragraph 26, which I have set out. They discussed all the other bullet points; it is important in particular to note what they have to say at paragraphs 48-50 for that revisits the part played in the history here by Mr Roberts of which much emphasis has been laid by Mr Sethi:

“Overall, therefore, the remaining bullet points in para. 7.10 identify various deficiencies in the Appeal Panel’s approach to the decision in the Claimant’s case but none that are specifically indicative of victimisation. That does not mean that a conclusion of victimisation was impossible: even ignoring the effect of the Burden of Proof Directive, it may, depending on the particular circumstances, be legitimate to infer discrimination simply from the fact that the decision in question is unreasonable or otherwise hard to account for except on the basis of a discriminatory motivation (particularly where such a motivation is plausible). But that does not seem to us to have been the case here. This is not a case where there was no obvious explanation for the failure of the Claimant’s application. There was clearly, as all concerned realised at the time, a strong argument that on the traditional approach the Claimant could not demonstrate the necessary competencies. The question was whether the exhortation in the guidance to take a broader view should lead to a different outcome in his case. That is inevitably a matter of judgment, and if the Panel had said explicitly that even having regard to that guidance the competencies had not been shown such a conclusion could not possibly have been said to be so surprising or unreasonable as to suggest an illegitimate motivation. Likewise if it had said that DCS Bearchell’s advice to the Claimant made no difference to its assessment. We cannot see how the fact that the Panel failed specifically to make those points in its deliberations or its short reasons changes the position. (b) Paras. 7.9 and 7.11 1. The Tribunal is concerned in these paragraphs with the review point - that is, that because the Claimant’s case was, uniquely, given a special “quick review” by DAC Roberts in order to see whether the CRP had followed proper procedures it did not have the benefit of an equivalent review from the Final Panel – see paras. 11 and 12 above. Since – see para. 23 above – that is not relied on as a free-standing act of victimisation, the question is whether it is capable of being evidence of victimisation on the part of the Appeal Panel. We do not see how it can be. The individuals involved were different. There was no finding that the members of the Appeal Panel even knew of the Roberts review or the consequent exclusion of the Claimant’s case from the review undertaken by the Final Panel. 2. The nearest which the Tribunal gets to making a connection between the review point and decision of the Appeal Panel is its finding at para. 7.11 that the unnecessarily wide circulation given to DAC Roberts’ e-mail of 16 May 2005 “carried with it a significant risk that Mr Roberts’ views would be tantamount to an order and likely come to the knowledge one way or another of those who were later to conduct the appeal”

. We have the following observations about that finding: (a) It is not in terms a finding that the e-mail, or the views expressed in it, did come to the attention of any member of the Appeal Panel (none of whom were actual addressees of the e-mail or included in the “cc” list). It is a finding only that there was a “significant risk that [his] views would … likely come to [their] knowledge”. Read literally, that is not a finding that they did or even that it is likely that they did, but only that there was a “significant risk” that they “likely” would do so. Although the wording might be capable of a wider construction, if the Tribunal had intended to find as a fact (even if only on the basis of a probable inference) that the members of the Panel knew of DAC Roberts’ views we would expect it to have said so and to have dealt with the point in some detail in its prior findings of fact. (b) What DAC Roberts said in the e-mail (see para. 11 above) could hardly be described as “tantamount to an order” (sc. to dismiss the Claimant’s appeal). He said simply that “on the face of the papers I can see nothing wrong with the conclusions of the [CRP]” and he went on to say that he was aware that there was to be an appeal and that it was accordingly inappropriate for him to go into it in more detail. That is a very limited finding, which expressly recognises that the Appeal Panel might reach a different conclusion. Of course, in theory there could be a risk that others would try to read between the lines or distort the message in communicating it, but there is no finding that that occurred and it is at best speculative. (c) Even if DAC Roberts’ views did become known to the Appeal Panel and (at least subconsciously) influenced it, it is not clear why that would constitute victimisation. As Mr. Sethi accepted, there was no finding by the Tribunal that in coming to the views that he did or in circulating them to the people he did DAC Roberts was influenced by the fact that the Claimant had done a protected act; and there is nothing in what he said to suggest that that might be the case.” (a) It is not in terms a finding that the e-mail, or the views expressed in it, did come to the attention of any member of the Appeal Panel (none of whom were actual addressees of the e-mail or included in the “cc” list). It is a finding only that there was a “significant risk that [his] views would … likely come to [their] knowledge”. Read literally, that is not a finding that they did or even that it is likely that they did, but only that there was a “significant risk” that they “likely” would do so. Although the wording might be capable of a wider construction, if the Tribunal had intended to find as a fact (even if only on the basis of a probable inference) that the members of the Panel knew of DAC Roberts’ views we would expect it to have said so and to have dealt with the point in some detail in its prior findings of fact. (b) What DAC Roberts said in the e-mail (see para. 11 above) could hardly be described as “tantamount to an order” (sc. to dismiss the Claimant’s appeal). He said simply that “on the face of the papers I can see nothing wrong with the conclusions of the [CRP]” and he went on to say that he was aware that there was to be an appeal and that it was accordingly inappropriate for him to go into it in more detail. That is a very limited finding, which expressly recognises that the Appeal Panel might reach a different conclusion. Of course, in theory there could be a risk that others would try to read between the lines or distort the message in communicating it, but there is no finding that that occurred and it is at best speculative. (c) Even if DAC Roberts’ views did become known to the Appeal Panel and (at least subconsciously) influenced it, it is not clear why that would constitute victimisation. As Mr. Sethi accepted, there was no finding by the Tribunal that in coming to the views that he did or in circulating them to the people he did DAC Roberts was influenced by the fact that the Claimant had done a protected act; and there is nothing in what he said to suggest that that might be the case.”

[15]The reasoning in these paragraphs, which, I have to say, cannot I think be undermined as a matter of law, is particularly important because of their treatment of the activities of Mr Roberts. I note the conclusion at the end of paragraph 49:

“There was no finding that the members of the Appeal Panel even knew of the Roberts review or the consequent exclusion of the Claimant’s case from the review undertaken by the Final Panel”

[16]I note also the EAT’s careful treatment of Mr Roberts’ letter or email in paragraph 50. Mr Sethi’s submission that the EAT had misunderstood or underestimated the effect of Mr Roberts’ dissemination of his views cannot, in my judgment, stand. As a consequence, as I have said, the EAT did not remit the matter but dismissed the claim. They said this at the end (paragraph 51):

“Having thus reviewed the facts relied on by the Tribunal in para. 7.12 of the Reasons, we cannot find that they are capable of justifying the inference that the Panel was to any significant extent influenced in reaching the conclusion that it did by its knowledge of the Claimant’s history. In those circumstances the correct course is not only to allow the appeal but to dismiss the claim. Although this Tribunal is always cautious about differing from an Employment Tribunal on a question of this kind, we do so the less reluctantly in this case because the Tribunal admitted that it had found the question of victimisation difficult: if it had not made the mistake discussed at paras. 25-30 above there is good reason to suppose that it would have reached the same conclusion as we have.”

[17]In fairness to Mr Sethi, he has advanced other elaborate arguments in an attempt to demonstrate that the EAT’s approach was wrong. He has made submissions about bullet points 3, 4 and 6 -- they are dealt with by the EAT at paragraph45. His points as to bullet 5 are dealt with at

46. I will not repeat the material there set out; in my view the EAT were entitled to conclude as they did on all these matters. More generally, Mr Sethi, citing a well known authority of this court, submits that it takes an extremely strong case to justify the EAT in dismissing a claim on its merits, having found an error of law by the Employment Tribunal. That is no doubt so. The question always is, first, what did the ET decide? Second, was that decision flawed by an error of law? Thirdly, if it was, was that conclusion nevertheless sustainable? On the whole reasoning of the ET, that conclusion was, in the EAT’s judgment and mine, not sustainable. This was one of those cases where the EAT were right to dismiss the claim as they did.

[18]By way of postscript, there is a final ground in Mr Sethi’s skeleton which I apprehend he would wish us to deal with. It is to the effect that the EAT should have taken account of a separate remedies judgment promulgated before the EAT delivered its reserved decision in this case. On this point I may be forgiven, I hope, for saying no more than that I accept the correctness of Mr Sheldon’s skeleton for the respondent at paragraphs 34-37.

[19]For all these reasons I would dismiss the appeal.

[20]I entirely agree. The case has, if I may say so, been ably argued by Mr Sethi; but in my judgment it raises only one substantive, albeit quite important, issue -- namely, whether or not on the facts of the case the EAT was entitled to dismiss the appellant’s application rather than remit it to a fresh Employment Tribunal. I have nothing to add to my Lord’s analysis of the case save to agree with it, but I add simply for emphasis that s.35 of the Employment Tribunals Act 1996 plainly gives Employment Appeal Tribunals a discretion. It reads as follows:

“Powers of Appeal Tribunal. 35. (1) For the purpose of disposing of an appeal, the Appeal Tribunal may – (a) exercise any of the powers of the body or officer from whom the appeal was brought, or (b) remit the case to that body or officer.” (a) exercise any of the powers of the body or officer from whom the appeal was brought, or (b) remit the case to that body or officer.”

[21]As my Lord has indicated, there is well known authority on the point. The high point of it seems to me, at any rate, to be the decision of this court in Morgan v Electrolux Limited

[1991] ICR 369

. The case concerned unfair dismissal, but at page 377D-E Balcombe LJ said this:

“Unless no Industrial Tribunal, properly directing itself, could have come to the conclusion that the appellant was not unfairly dismissed, the EAT should have remitted the case to the Industrial Tribunal.”

[22]My Lord has read paragraph 51 of the EAT’s judgment in the present case which deals with this point. I respectfully express my agreement with that paragraph and with the course which Underhill J and the tribunal took. In my judgment, the EAT was entirely correct in the particular circumstances of this case to dismiss the claim rather than remit it, and therefore I too agree that this appeal should be dismissed.

[23]I agree with both judgments.

Order

Appeal dismissed