South Wales Police Authority v Johnson [2014] EWCA Civ 73

Case No A2/2013/0925[2014] EWCA Civ 73
IN THE COURT OF APPEAL (CIVIL DIVISION)
Venue (Sitting at the Cardiff Civil Justice Centre)
ON APPEAL FROM The Employment Appeal Tribunal
HHJ Peter Clark and 2 lay members
Insert Lower Court NC Number Here
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 05/02/2014
Before
THE MASTER OF THE ROLLSLORD JUSTICE UNDERHILLLADY JUSTICE MACUR
Between
SOUTH WALES POLICE AUTHORITYAppellantSAMUEL JOHNSONRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Jonathan Walters (instructed by Joint Legal Services, South Wales Police) for AppellantThe Respondent appeared in Person for in personHearing Hearing dates : 28 November 2013
JudgmentLord Justice Underhill :THE CLAIMS
[1]The Claimant in the proceedings which give rise to this appeal was the Head of the Diversity Unit at South Wales Police from January 2003 until his dismissal with effect from 14 October 2005. He is black. The history of his employment, at least over the later part of that period, was troubled. He was the subject of both criminal and disciplinary investigations, though I should say that no criminal charges against him were in the event pursued. Separately, his working relationship with one of the officers to whom he reported, Chief Superintendent Kinrade, and with other staff in the Unit, became very bad: I will come back to that presently. His eventual dismissal was as a result of misconduct proceedings relating to various matters of which I need not give the details here.[2]The Claimant brought two sets of proceedings against the South Wales Police Authority in the Employment Tribunal, the first in May 2005 and the second in May 2007. The two were in due course combined. He did not complain of unfair dismissal: his complaints were of racial discrimination and victimisation during his employment.[3]The complaints made in the original ET1s and in subsequent further and better particulars were rather diffuse. At the pre-hearing stage they were brought together in what was described as a “Working Schedule”, which identified 62 complaints, giving summary details in relation to each and identifying the individuals alleged to be responsible for the acts complained of. The Schedule distinguished between those complaints which were relied on as actual acts complained of, in respect of which a remedy was sought, and those which were relied on only as “background”. The latter were the majority. The Claimant, who was initially represented by solicitors but latterly represented himself, says now that he did not fully understand the implications of that distinction, but that is not something which we can consider on this appeal.[4]It took a long time for the claims to be brought to a hearing, but they eventually came on before an Employment Tribunal in Cardiff, chaired by Employment Judge Beard, over no fewer than 23 days in March and April 2011, with a further hearing on 18 July 2011. The Claimant was unrepresented. The Authority was represented by Mr Jonathan Walters of counsel.

THE DECISION OF THE EMPLOYMENT TRIBUNAL

[5]The Judgment of the Employment Tribunal was sent to the parties on 26 September 2011. The Reasons run to 67 pages. They are carefully constructed, and a great deal of work evidently went into them. The Tribunal went systematically through all 62 complaints. A large group of them which related to the conduct of the Authority’s investigations against the Claimant were dismissed because they were held to fall outside the jurisdiction of the Tribunal by reason of the decision of the EAT in London Borough of Waltham Forest v Martin [2011] UKEAT/0069/11. Another group were dismissed because they depended on allegations made by a witness who did not attend the hearing and on whose evidence the Tribunal found that it could put no weight. Other individual complaints were dismissed on bases peculiar to their particular facts. What was left was a group of allegations about the conduct towards the Claimant of Chief Superintendent Kinrade and of two members of staff in the Diversity Unit, primarily a Ms Sweeney but also a Ms Gravette. Ms Sweeney was known to the Claimant before she joined the Diversity Unit and was indeed encouraged by him to apply for the post, but their working relationship quickly deteriorated, culminating in a formal complaint about his conduct made by her in early 2005.[6]The Tribunal made some highly critical findings about Ms Sweeney and Ms Gravette. At para. 114 of the Reasons it said that they “were deliberately trying to undermine the Claimant on a consistent and persistent basis”. It found that Ms Sweeney had no respect for the Claimant and thought that he should be reporting to her rather than the other way round (see para. 116.6). It also expressed “considerable concerns” about the bona fides of the complaint which she brought against him (see para. 72.4). As for Chief Superintendent Kinrade, the Tribunal found that he was initially supportive of the Claimant but became infected by Ms Sweeney’s attitude towards him. It found that that change began some time in the second half of August 2004: the Reasons themselves do not in fact put a precise date on the change in his attitude, but the Tribunal did so in the review decision to which I refer at para. 9 below. A convenient summary of the Tribunal’s overall conclusion appears at para. 154.1 of the Reasons, by way of introduction to its consideration of an issue about limitation:
“We have come to the conclusion that Miss Sweeney and to a lesser extent Miss Gravette and Chief Superintendent Kinrade engaged in what amounted to a sustained campaign against the Claimant … during 2004 and the early part of 2005.”
[7]The Tribunal found that that campaign was at least in part because of the Claimant’s race. It made this finding in the context of one of the “background” complaints but, which is ultimately what matters, it deployed it in finding three particular acts of direct discrimination committed by Ms Sweeney and/or Chief Superintendent Kinrade, being numbers 35, 38 and 43 on the Schedule. Although the acts in question are very specific it was clearly the Claimant’s case that they were manifestations of the general campaign against him.[8]Before I describe those three findings it will be useful to set out some background which is common to two of them – numbers 35 and 38 – which both relate to the alleged exclusion of the Claimant from meetings. The Authority had in place what was described as a “Race Equality Scheme” designed to comply with its obligations under Part X of the Race Relations Act 1976. On 24 June 2004, following a television exposé, the Commission for Racial Equality wrote to the Authority, together with a large number of other police forces, giving notice of non-compliance with its duties under Part X. It was necessary for a revised Scheme to be produced as a matter of urgency. That task fell, at least to a considerable extent, within the Claimant’s area of responsibility as Head of the Diversity Unit. He was in fact away for a month starting just before the notice from the CRE was received, but on his return he was expected to be very actively engaged in this project. Although there seems to have been some uncertainty as to the formal roles, he was in practice reporting for this purpose to Chief Superintendent Kinrade.[9]Item 35. This is a complaint that the Claimant was not asked to a meeting on 17 August 2004 to discuss a “racial incident” which had occurred at an earlier meeting of the Police Diversity Trainers Network. The individuals said to be responsible for failing to invite him are Chief Superintendent Kinrade and Ms Sweeney. The Tribunal dealt with the complaint at para. 129 of the Reasons. It found that Chief Superintendent Kinrade and Ms Sweeney arranged the meeting in question and that the Claimant was not asked notwithstanding that the matter to be considered fell within the area of his responsibilities. It held that that constituted “less favourable treatment” of the Claimant within the meaning of section 1 (1) (a) of the 1976 Act. At para. 129.5 it said:
“We are once again drawn to the conclusion that this related to Ms Sweeney’s dislike of the Claimant acting as her Line Manager.”
It then went on to consider whether that “dislike”, and thus that treatment, was on the grounds of his race. Drawing on conclusions already reached in the context of the “background” complaints, and applying the “reverse burden of proof” provisions of section 54A of the Act, it concluded that it was. I will set out its detailed reasons below. However, at a review hearing on 21 December 2011 the Tribunal revisited that conclusion. It candidly accepted that it had become confused between the meeting of 17 August 2004 and a later meeting or meetings relating to the Race Equality Scheme. It accepted that since it had not found that Chief Superintendent Kinrade was at that stage “influenced by Ms Sweeney” the finding of discrimination against him could not stand. However, it expressly upheld its finding in relation to Ms Sweeney on the basis that she “resented the Claimant … across the time period we deal with” and that she was “culpable” in failing to communicate with him, whatever the nature of the meeting. The result is that the Tribunal’s finding on this complaint stands as regards Ms Sweeney but not as regards Chief Superintendent Kinrade.[10]Item 38. This is a complaint of “undermining the Claimant by not notifying him of, or inviting him to, two meetings.” The only individual discriminator identified in the Schedule is Chief Superintendent Kinrade. The first meeting, on 5/6 September, was in Cheshire and was attended by representatives of all those forces which had received non-compliance notices from the CRE (see para. 8 above). The other was a “Regional Diversity Meeting” in Gwent which occurred shortly afterwards: no specific date is alleged. The Tribunal dealt with this complaint at para. 132 of the Reasons. It treated it as common ground that the Claimant had not been asked to either meeting. As regards the meeting in Cheshire, it found that there was a legitimate reason for his not being invited (albeit that it was not actually the reason given by Chief Superintendent Kinrade), namely that he had been on holiday when the Race Equality Scheme issues first came up; accordingly it found that he had not been “less favourably treated”. But as regards the meeting in Gwent it said that it had had no explanation about why the Claimant had not been invited and it went on to find that a prima facie case of racial discrimination had been shown (on the part, it seems, of both Ms Sweeney and Chief Superintendent Kinrade) and that the Respondent had not discharged the burden of proof: again, I set out its detailed reasoning later.[11]Item 43. This item concerned the accessing and photocopying of the Claimant’s work diary. The individual discriminators named do not include either Chief Superintendent Kinrade or Ms Sweeney. However, at para. 137 of the Reasons the Tribunal treated it as referring to an earlier “background” complaint in which those two individuals were implicated and made a finding of direct discrimination against both of them. At the review hearing in December 2011 it accepted that that was wrong: item 43 was a distinct allegation which did not involve Chief Superintendent Kinrade or Ms Sweeney. Accordingly it revoked this finding.[12]The upshot is that the eventual findings of the Tribunal, following the review, consist of a finding of discrimination against Ms Sweeney in relation to item 35 – that is, the exclusion of the Claimant from the meeting of 17 August 2004 – and a finding of discrimination on the part of, apparently, both Ms Sweeney and Chief Superintendent Kinrade in relation to item 38 – that is, his exclusion from the Regional Diversity Meeting in Gwent at some date in or after September 2004. That is the totality of the findings against the Authority – although, as I have said, the Claimant no doubt intended that they should be regarded as particular manifestations of the racially motivated campaign against him which he alleged and the Tribunal found.[13]The Tribunal acknowledged in relation to both items that any claim in relation to them was prima facie out of time, but in the final section of the Reasons it held that it was appropriate to extend time under section 68 (6) of the 1976 Act.

THE DECISION OF THE EMPLOYMENT APPEAL TRIBUNAL

[14]The Authority appealed to the Employment Appeal Tribunal. It challenged both the findings of discrimination in relation to items 35 and 38, essentially on the basis that they were perverse, and the ET’s decision on limitation. The appeal was heard on 19 March 2013, HH Judge Peter Clark presiding. In a short extempore judgment the EAT found that the reasoning of the ET on the limitation issue was flawed and it remitted that issue for further consideration. It said that it regarded limitation as “the real issue here”. In relation to the challenge to the actual findings of discrimination it said only this, at para. 7:
“We are not persuaded by Mr Walters that his attack on the remaining findings that items 35 and 38 on the basis of perversity surmounts the high hurdle presented by the approach of Mummery LJ in Yeboah v Crofton [2012] IRLR 634.”
[15]I am bound to say that I do not believe that that was an adequate way of dealing with that aspect of the appeal. The Authority had pleaded in its notice of appeal a careful and particularised perversity challenge (in substantially identical terms to those pleaded in the appeal to this court), and those grounds had been permitted to be pursued at the sift stage. The EAT was no doubt entitled to form the view that they were ill-founded, but it was obliged to give reasons for that view going beyond the mere statement that it was not persuaded.

THE APPEAL TO THIS COURT

[16]The Authority has appealed to this Court against the dismissal by the EAT of its challenge to the ET’s decision on items 35 and 38. In both cases its essential ground is that the ET’s decision was perverse, but the detailed reasoning differs as between the two, and I will take them in turn.[17]The Authority is again represented before us by Mr Walters and the Claimant has again appeared in person. A few days before the hearing the Claimant asked for the appeal to be dismissed or adjourned because he had only very recently received the appeal bundle. But he accepted before us that he had had sufficient time to prepare, and he did not persist in either application.

ITEM 35

[18]The Authority does not seek to challenge the Tribunal’s finding that Ms Sweeney’s role in excluding the Claimant from the meeting of 17 August 2004 was a manifestation of her hostility towards the Claimant and her resentment of his managing her. But the crucial question is whether that attitude was due, to any significant extent, to the fact that he was black. The reasoning underlying the Tribunal’s conclusion that that was the case has to be established by reference to a series of different passages in the Reasons: I take them in order.[19]First, at para. 71, as part of the narrative section of the Reasons, the Tribunal recounted the evidence of a Mrs Iwobi, who had been called by the Claimant, about an occasion when she had heard Ms Sweeney make an adverse remark about black men. The Tribunal said that it found Mrs Iwobi a particularly reliable and honest witness. At paras. 71.14-16 it said:
“71.14. Mrs Iwobi told us how she had heard Miss Sweeney refer to black men in a very negative fashion. She told us that Miss Sweeney said something along the lines of “whenever she (Miss Sweeney) had a relationship with a black man that she would be treated very badly”. 71.15. Mrs Iwobi challenged this, saying that her husband was a black man and did not treat her very badly and that she did not appreciate the stereotyping. 71.16. Mrs Iwobi accepted in cross-examination that the remark could have been about an individual relationship that Miss Sweeney was engaged in and that she had had a particular and bad experience. She also indicated that although other professionals were there they did not challenge Miss Sweeney.”
At para. 72.2 it said:
“… [T]he Tribunal is in a position to say that Miss Gravette and Miss Sweeney were clearly working together in a way which was undermining of the claimant’s role as a Manager, and further that in the case of Miss Sweeney that she had in terms of her experience expressed a negative attitude towards black men with whom she had relationships.”
[20]Secondly, at para. 116 of the Reasons the Tribunal addressed one of the “background” items on the Schedule, in which the allegation was that Ms Sweeney had printed off the Claimant’s calendar following a request from Chief Superintendent Kinrade; this was said to be an interference with his privacy. It was in that context that the Tribunal made the finding to which I have already referred that Ms Sweeney’s conduct was “based on a position of wishing to be the Claimant’s superior”. It continued:
“116.9. Our next question has to be was this on the grounds of the claimant’s race ? We have to ask ourselves has the claimant raised issues from which the Tribunal could conclude that this approach by Miss Sweeney was because of the claimant’s race ? 116.10. The Tribunal had heard evidence from Mrs Iwobi about the attitude that was demonstrated by Miss Sweeney towards black men and have heard evidence about the unreasonable approach that Miss Sweeney took to being supervised by the claimant. 116.11. In those circumstances, in our judgment, that is enough to draw an inference that the approach of Miss Sweeney to being supervised by the claimant could be on the basis that he was a black man. In those circumstances we are of the view that the burden of proof shifts to the respondent.”
[21]The Tribunal then draws on those two previous passages in the paragraph in which it deals with item 35, which is para. 129. Sub-paras. 129.6-9 read as follows:
“129.6. Given Ms Sweeney’s indications about her attitude to black men and the fact that this behaviour is less favourable treatment, we are of the opinion that the Claimant could prima facie show that this was less favourable treatment on the ground of race. 129.7. The explanation given for these meetings was that Chief Superintendent Kinrade was heavily involved in the preparation of the race equality scheme and so was Ms Sweeney and therefore direct contact between [them] was necessary. 129.8. This explanation may indicate why there were reasons for Ms Sweeney and Chief Superintendent Kinrade to meet, but they do not give an explanation why they would meet without informing or discussing matters with the Claimant. 129.9. In those circumstances, we have come to the conclusion that the respondent has failed to provide an explanation in line with the burden of proof and therefore that the claimant’s claim of direct discrimination with regard to those matters is made out.”
[22]It will be seen that that reasoning is, as already noted, based squarely on the “reverse burden of proof” provisions of section 54A of the 1976 Act. This reads:
"(1) This section applies where a complaint is presented under section 54 and the complaint is that the respondent: (a) has committed an act of discrimination, on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in Section 1 (1B) (a) (e) or (f) or Part IV in its application to those provisions, or (b) has committed an act of harassment. (2) Where on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent – (a) has committed such an act of discrimination or harassment against the complainant, or (b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination or harassment against the complainant, the tribunal shall uphold the complaint unless the respondent proves that he did not commit the act or, as the case may be, is not to be treated as having committed that act."
[23]Those provisions and their cognates in the other anti-discrimination legislation have been considered in a large number of decisions of the EAT and of this Court, culminating in Madarassy v Nomura Plc [2007] ICR 867. I need not rehearse in full the authoritative exposition given by Mummery LJ in that case, which was approved by the Supreme Court in Hewage v Grampian Health Board [2012] ICR 1054 – see per Lord Hope at para. 30 (p. 1065). But I should draw attention to paras. 55-58 of his judgment (pp. 878-9), in which he explains the effect of the earlier decision of this Court in Igen Ltd v Wong [2005] ICR 931. As the Court had made clear in that case, the burden of proof does not shift to the respondent – or, as it is often put, “stage (1)” is not satisfied – simply by proving facts “from which the employment tribunal could conclude that the respondent ‘could have committed’ [an act of discrimination]”. Mummery LJ emphasises that the necessary “prima facie case” is only established by proving facts which would, if unexplained, justify a conclusion not simply that discrimination was “a possibility” but that it had in fact occurred: that is what the phrase “could … conclude” connotes. As Lord Hope emphasises in Hewage, it is not right to think in terms of “presumptions”: “the prima facie case must be proved [emphasis in original]” (para. 31 (p.1065)). It is important always to bear in mind that a finding of a discriminatory motivation is, even when made by reference to the burden of proof provisions, a finding of fact, and not the result of the application of a legal presumption. A mechanistic approach is not appropriate.[24]Mr Walters submitted that the single remark described by Mrs Iwobi, as recounted at para. 71.14 of the Reasons, is simply too flimsy a basis for a finding of even a prima facie case that Ms Sweeney’s attitude towards the Claimant was racially motivated. That would be so even if one accepted the findings precisely as they were stated at para. 71.14-16; but he sought to reinforce that submission by three further points.[25]First, he drew our attention to the notes of Mrs Iwobi’s evidence. These can be summarised as follows:(1) Mrs Iwobi had attended pursuant to a witness order and had not made a witness statement. In the course of her evidence in chief, as noted by the Employment Judge, she was asked by the Claimant whether she had ever heard Ms Sweeney “denigrate a black man” and whether she had heard her say that whenever she had a relationship with a black man she was treated badly: it is clear from the context that the reference is to intimate relationships rather than relationships more generally. Those were of course leading questions, but no doubt the Claimant was referring to something about which he had already been told.(2) The notes of Mrs Iwobi’s answer to that question are a little opaque, but it seems clear that her evidence was indeed that she had heard Ms Sweeney make such a remark. She said that it had been made on an occasion when other staff were present. She said that Ms Sweeney was crying. She had responded to what Ms Sweeney said, saying that you should not stereotype black men, that her own husband treated her well and that it could have been “more about the individual” (i.e. the particular person who had behaved badly towards her); and that Ms Sweeney had accepted that, though saying that her own experience had been bad.(3) Mr Walters cross-examined Mrs Iwobi about this episode. She accepted that Ms Sweeney had been upset because of a relationship with a particular Afro-Caribbean or mixed-race man, and that she was being consoled by one of the other staff present.(4) Ms Sweeney was also asked about this incident in chief. The notes are, again, a little opaque but it appears that she said that the conversation related to her relationship with a black colleague called Tony Smikle. Mr Walters submitted that what emerged from these notes, which give significant details omitted by the Tribunal, is that the remark on which the Tribunal fastened was made by Ms Sweeney when she was in a distressed state as a result of problems in her relationship with a particular black man. (Indeed the Tribunal may have partially acknowledged this at para. 71.15.) He submitted that a remark made in that context has a very different weight from a stark declaration of a prejudiced attitude towards black men.[26]Secondly, Mr Walters submitted there was substantial unchallenged evidence which made it very unlikely that Ms Sweeney’s attitude towards the Claimant had anything to do with his race. So far as her general attitudes were concerned, her work was in the field of diversity, and she was a former Chair of the Police Diversity Trainers Network; also, as the episode considered above showed, she had had more than one intimate relationship with a black man. As for her attitude to the Claimant, they had previously been on very good terms and, as already mentioned, it was he who had encouraged her to apply for her current role working for him. In those circumstances, although the relationship had clearly gone wrong, that was very unlikely to be anything to do with the Claimant being black.[27]Thirdly, there was unchallenged evidence before the Tribunal that Ms Sweeney had made it clear to the Claimant that she was interested in having an intimate relationship with him but that he had declined. That was significant not only as reinforcing the point made above but also because it was an obvious possible alternative explanation for her hostile attitude towards him. The Tribunal referred to this in the course of its factual findings at para. 72.3, but it drew no conclusions from it. (I should add that in the course of his submissions before us the Claimant himself volunteered that his rejection of Ms Sweeney might have been “the whole reason why our working relationship broke down”, though he added that he believed she had an unhealthy relationship with black men.)[28]The Claimant’s primary submission in response to those submissions was that it was important to look at the Tribunal’s decision “in the round” and to have regard to all its findings about Ms Sweeney’s conduct. I of course accept that, but it remains necessary to focus on the specific reason given by the Tribunal for finding a prima facie case that Ms Sweeney’s conduct was – at least partly, and even if only subconsciously – on the grounds of the Claimant’s race; and the fact is that that reason does come down to the single remark reported by Mrs Iwobi. The Claimant also, correctly and pertinently, reminded us of the high threshold needed for a finding of perversity: we were referred in particular to the decision of this Court in Yeboah v Crofton [2002] IRLR 634. He submitted that this was plainly a case where it was open to the Tribunal to conclude that the burden of proof shifted.[29]I am very conscious of the need for an appellate tribunal to resist the temptation to second-guess the conclusions of the tribunal of fact. The Employment Tribunal in this case gave painstaking consideration to the issues and its conclusion that the Claimant had shown a prima facie case of a racial motivation on the part of Ms Sweeney should not be lightly interfered with. But I have come to the conclusion nevertheless that it cannot be sustained. My reasons are as follows.[30]The starting-point must be to appreciate that the Tribunal’s reasoning does indeed depend entirely on the single observation by Ms Sweeney recounted by Mrs Iwobi. This is not a case where the acts complained of are themselves racial in character; nor does the Tribunal rely on any other material as indicative of a racial element in Ms Sweeney’s attitude to the Claimant. I can accept that the incident may show that Ms Sweeney had an adverse stereotype of how black men behave in intimate relationships: while it is true that people sometimes say things when they are upset that they do not really mean, such remarks may nonetheless betray a subconscious prejudice. But even if Ms Sweeney was affected by such a stereotype, the issue is whether that gave rise to a prima facie case, in the sense elucidated in Madarassy, that that was (at least in part) the explanation of her animus against the Claimant. I do not believe that it did. The remark described by Mrs Iwobi had no direct reference to the Claimant, and the Tribunal refers to no other evidence linking Ms Sweeney’s attitude towards him to the attitude apparently displayed on that occasion. It may, in Mummery LJ’s language, be a “possibility” that there was such a link; but in my judgment the evidence is incapable of justifying a conclusion to that effect. Of course tribunals may be required when considering claims of direct discrimination to draw inferences about the subconscious motivation of putative discriminators (see the classic judgment of Lord Nicholls in Nagaragan v London Regional Transport [1999] ICR 877, at p. 885); but such inferences can only be based on solid and sufficient evidence. Even for the purposes of “stage (1)”, it would not be right for a tribunal to base findings of legal liability on an exercise in psychological speculation with so slight a basis as existed here.[31]Accordingly I essentially accept Mr Walters’ primary submission as set out at para. 24 above, which is reinforced by reference to the notes as summarised at para. 25. I need not comment in detail on the points summarised at paras. 26 and 27. But it may be worth emphasising that the kind of break-down in the relationship between the Claimant and his team (which, NB, included Ms Gravette as well as Ms Sweeney) is of a kind which is not all that uncommon in the workplace without any reference to race (or any other protected characteristic). Staff do sometimes, fairly or unfairly, form low opinions of their managers and think that they could do the job better themselves; and the position may have been complicated also by the pre-existing personal relationship of the Claimant and Ms Sweeney. This is not a case which positively called for an explanation of the kind found by the Tribunal.

ITEM 38

[32]This allegation is, as I have said, dealt with at para. 132 of the Reasons. The Tribunal starts by saying that “the respondent accepts” that the Claimant was not notified of either meeting, although Chief Superintendent Kinrade had passed information about both of them to Ms Sweeney. In a number of sub-paragraphs it then addresses, in relation to each meeting, whether the non-invitation constituted “less favourable treatment”, and if so what the reason for it was. As already noted, it finds that his non-invitation to the meeting of 5/6 September did not constitute less favourable treatment, and I need say nothing more about that. As regards the Gwent meeting the following sub-paragraphs are relevant: (1) At para. 132.5 it says:
“No explanation was given to us about Chief Superintendent Kinrade’s involvement with the Regional Diversity meeting being held in Gwent, other than that in terms of that meeting no invitation was given.” (2) At para. 132.8, having said that it was understandable that Chief Superintendent Kinrade rather than the Claimant would attend the earlier meeting, it says: “The same cannot be said about the Regional Diversity Meeting in Gwent, if Miss Sweeney.”
There are clearly some words missing, but it is not necessary for present purposes to speculate about what they may be. (3) After reverting to the issue of the earlier meeting, the Reasons return to the Gwent meeting at sub-paras. 132.12-13, which read as follows:
“132.12. The less favourable treatment in Gwent must be on the grounds [of] race. Once again we tie in the earlier conclusions that we have referred to with regard to Miss Sweeney and Chief Superintendent Kinrade, and have come to the conclusion therefore that there are grounds for the Claimant establishing on a prima facie basis that race may have been involved. 132.13. In that light we have come to the conclusion that the absence of an explanation for the Gwent process is such that we consider that discrimination was involved.” (The first line of para. 132.12 reads a little oddly, but the clear meaning, taking the passage as a whole, is that it is necessary for the Claimant to establish that his exclusion was because of his race.) Again, therefore, the Tribunal’s reasoning is based squarely on the burden of proof provisions. (4) The concluding sub-para., 132.14, reads as follows: “Limitation in respect of this issue, we will deal with when we deal with the last of the complaints of discrimination in time. Given that there was, in our judgment ongoing discriminatory treatment by Kinrade and Sweeney.”
Something has gone wrong with the English, but there is an explicit finding of discrimination by Chief Superintendent Kinrade and Ms Sweeney.[33]There is a preliminary problem about that reasoning. In relation to this item the only discriminator named on the schedule is Chief Superintendent Kinrade, and it was not strictly open to the Tribunal to make a finding that Ms Sweeney had also acted discriminatorily. However, it seems likely that this was a slip on the part of the Claimant or his advisers and the Tribunal may have been reflecting the reality of the case as advanced; in any event Mr Walters took no point on this.[34]Mr Walters’ first line of attack on the Tribunal’s reasoning was that it had been wrong to record that the Authority had conceded that there had been any meeting in Gwent to which the Claimant had not been invited. He had made no such concession, and in fact the evidence for any such “non-invitation” was extremely thin. The Claimant had referred to the Gwent meeting in a single sentence of his (voluminous) witness statement and had given no particulars of its date or subject-matter. No documents referring to it had been produced. Chief Superintendent Kinrade had not referred to any such meeting in his witness statement. He had been asked a single question about it in his cross-examination – to which, according to the Judge’s note, he had simply received the answer “no”. Mr Walters submitted that that was plainly a denial, even though it may be unclear whether he was denying that there was such a meeting or denying that he had had any part in excluding the Claimant from it.[35]I accept that the basis for the Tribunal’s finding that the Claimant was excluded from the alleged meeting appears to be unsatisfactory; but I am reluctant to criticise the Tribunal for the basis on which it proceeded without a better understanding of how the point was argued before it. It would have been helpful to see Mr Walters’ written submissions, but they were not produced to us. Fortunately, however, the issue is not decisive because in my view the reasoning set out at para. 32 above cannot stand, for the following reasons.[36]As regards the finding of discrimination against Ms Sweeney, this evidently depends on the same reasoning as I have discussed in relation to item 35 and is flawed for the same reason. Indeed if, as seems to be the case though the wording is a little unclear, para. 132.13 means that the Tribunal thought that “stage (1)” was satisfied by establishing “that race may have been involved [my emphasis]”, that would be an overt application of the “possibility” approach which was held in Madarassy to be wrong.[37]As regards the finding against Chief Superintendent Kinrade, it is not clear what “earlier conclusions” the Tribunal meant to refer to. There is no explicit finding about Chief Superintendent Kinrade’s motivation elsewhere in the Reasons. There is no equivalent to the “Iwobi incident” relied on in the case of Ms Sweeney. The only earlier findings of discrimination against Chief Superintendent Kinrade are in relation to the “background” complaint referred to at para. 21 above and in relation to item 35 (although that finding was revoked on review). However, in neither of those contexts is his motivation directly considered. The Tribunal appears to proceed on the basis that since he was associated in Ms Sweeney’s conduct his motivation must be treated as being the same as hers. I am far from sure that that follows; but for present purposes it is only necessary to say that even if that reasoning is legitimate it cannot survive my conclusion that there was no sufficient basis for the finding that Ms Sweeney was motivated by the Claimant’s race. But I would add that I have seen nothing in any of the various findings made about Chief Superintendent Kinrade’s conduct towards the Claimant which gives any indication of a possible racial motivation.

CONCLUSION

[38]I would allow the appeal against the decision of the EAT to remit these claims for consideration of the limitation issue and would dismiss the claim of racial discrimination in its entirety. Lady Justice Macur[39]I agree.

The Master of the Rolls

[40]I also agree.

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