Alam v Chief Constable Shaw & Ors [1996] UKEAT 1039_95_2410

EAT
Alam v Chief Constable Shaw & Ors
[1996] UKEAT 1039_95_2410 · 1996-10-24
MRS JUSTICE SMITH : This is an appeal from the decision of an Industrial Tribunal sitting at Middlesbrough in January 1995. The decision was sent to the parties on 9 August 1995. The Tribunal dismissed the Appellant's complaint that the Respondents, his employers, and some of the employer's Officers, had discriminated against him on the grounds of his race. The Appellant is of Pakistani origin.The Appellant had been employed as a Police Constable since 1984 with the Cleveland Constabulary. He was, and remains, one of a very small number of Officers in that Force who come from an ethnic minority background.On 3 December 1993 he presented a claim under the Race Relations Act 1976 alleging some 16 matters of complaint arising out of his employment. At the commencement of the hearing the Respondents contended that all the complaints were out of time.The Industrial Tribunal heard the Appellant's evidence and the submissions of both parties on the time issue. They ruled that all matters had occurred more than three months before the presentation of the complaint, but they permitted some matters of complaint to proceed on the ground that it was just and equitable so to do. No appeal arises out of the exercise of that discretion.At the end of a very long hearing lasting some 16 days on the merits of the remaining complaints, the Tribunal concluded that, although the Appellant had indeed been subjected to detriments in the course of his employment, he had not been treated differently from the way in which a white man would have been treated in similar circumstances. Accordingly, they dismissed the complaint.The essence of the appeal before us is that the Industrial Tribunal's refusal to draw the inference that the detriments the Appellant had suffered had not been racially motivated, was perverse. It was submitted that this was a decision which no reasonable Tribunal could have made and was plainly wrong.Before turning to consider the Industrial Tribunal's findings of fact relative to this appeal, it should be mentioned that, in relation to some of the complaints which the Tribunal declined to consider as being out of time, they said that they would have found those complaints proved, had they had them before them. These complaints related to some very unpleasant acts of racial harassment, to which the Appellant had been subjected by colleagues of a junior rank, during a period towards the end of 1992. Those acts of harassment had then fortunately ceased.We should also mention that, before stating their findings of fact and their conclusions, the Industrial Tribunal directed themselves in relation to the law. They cited the well known extracts from the case of King v British China Centre [1992] ICR 516 . No complaint is, or could be made, of their general approach to the law.We turn now to summarise the facts as found by the Industrial Tribunal. In doing so, we adopt gratefully those parts of the Tribunal's exposition of the facts which appear to us to be relevant to the issue raised in the appeal.The Cleveland Constabulary, the Respondents, has its headquarters in Middlesbrough. Its Road Traffic Department, known as B Division, is based at Cannon Park. B1 Branch is concerned with Highway Patrols. It contains about 70 Officers up to the rank of Sergeant. The branch operates in four Reliefs, A to D. Each Relief has an Inspector and two Sergeants in addition to a number of Constables. The Appellant was the first and, at the time of the hearing, remained the only ethnic minority Officer in B Division.The Tribunal considered the Respondents' Equal Opportunities Policy and the measures they had taken to implement their policy. It suffices, for the purpose of this judgment, to say that the Industrial Tribunal were unimpressed by the provisions made by the Respondents for ensuring equal opportunities within their Force up to about April 1993. Thereafter, they were satisfied that, upon the appointment of Chief Inspector Hampson for responsibility for the Equal Opportunities Unit, matters had greatly improved.As we have indicated, the Appellant was employed by the Respondents from 1984. In January 1991 he was transferred to the Road Traffic Department. Initially, he was assigned to D Relief. In the event, because he underwent a computer training course, he did not take up his active duties until May 1991.Until January 1992, the Appellant's service appears to have passed without incident. Indeed, it appears that he had good reports, both prior to his transfer to the Road Traffic Department and immediately thereafter. He also had no real difficulties so far as his colleagues' attitude to his race was concerned.However, in January 1992, there occurred an incident which resulted in the Appellant's suspension from driving police vehicles. This incident figured prominently in the evidence heard by the Tribunal. On 4 January, a stolen Vauxhall Astra was pursued by the Officers of a neighbouring Constabulary into the jurisdiction of the Respondents. As the stolen car came into the Respondents' territory, a number of Cleveland Officers, including the Appellant, took up the pursuit.Sergeant Brock, who was then attached to D Relief, supervised the pursuit on the radio. The pursuit continued for a considerable period of time. Several vehicles and Officers were involved. Senior Officers, in particular Inspector Tindale, who was the Officer then in charge of D Relief, became seriously concerned as to the Officers' conduct. A preliminary investigation took place and a report was prepared by Sergeant Brock. His report was critical of the Appellant's conduct in the course of that pursuit. Sergeant Brock reported that the Appellant had been involved in a collision with a private motor car during the pursuit, as a result of which damage had been caused, but contrary to standing orders, he had failed to stop at the scene and had continued in the pursuit. Sergeant Brock also said that, although he had instructed the Appellant and other Officers to cease the pursuit, he had formed the impression that the Appellant had resented that instruction, that he was endeavouring to go back into the pursuit, and that he was over-excited and not in full control of himself. Sergeant Brock expressed the view that the Appellant was suffering from "red mist syndrome", which is a loss of control, possibly caused by a rush of adrenaline. Sergeant Brock told the Tribunal that he had reached that view because of various factors, including the manner of the Appellant's driving, his demeanour, and the suggestion that he should use his already damaged police vehicle as a barrier to stop the stolen car. Sergeant Brock asserted that he had instructed the Appellant to take up a static observation position and the Appellant had ignored that instruction and resumed the pursuit.Faced with these allegations, Inspector Tindale suspended the Appellant from driving a police vehicle. Subsequently, a disciplinary investigation took place. Sergeant Brock submitted a written statement, although the Appellant was not aware of that until some months later. When he did find out about it, he reacted very strongly. Not only did he deny the allegations against him, but he expressed great anger and distress and suggested that Sergeant Brock had sought to "stab him in the back" and was, in some way, jealous of him.The disciplinary investigation was carried out by a Deputy Chief Constable. As a result of that investigation the Deputy Chief Constable was critical of the conduct of several Officers including the Appellant. Several Officers were advised, or strongly advised, as to their future conduct. In respect of the Appellant the Deputy Chief Constable suggested that he should be "strongly advised of the need for self discipline during the course of a pursuit, the need to adhere to Force Policy and the correct action to take when involved in an accident". The Deputy Chief Constable also directed that the Appellant could not stay on the same Relief as Sergeant Brock.As a result, in August 1992 the Appellant was transferred to B Relief. The suspension from driving was lifted at the end of July 1992. Thus, the Appellant had not driven police vehicles between January and July. The Appellant made no complaint about either his suspension or the investigation carried out, or the Deputy Chief Constable's conclusions.It was shortly after the Appellant's transfer to B Relief that the unpleasant acts of harassment took place, to which we have already referred. The Tribunal formed the view that those acts of harassment were probably perpetrated by Officers on D Relief and arose out of the circumstances in which the Appellant had come to be transferred out of that Relief.In September 1992, shortly after the Appellant's transfer to B Relief, the second Respondent, Chief Inspector Evans, was appointed to command the Road Traffic Department. He took up his duties in January 1993, but he immediately went on a course and it was not until May 1993 that he was fully involved with the work of the department at its base. He had, in the intervening weeks, kept in touch with events, by making a number of short visits.Shortly after his appointment, Chief Inspector Evans learned about the incidents of harassment to which the Appellant had been subjected. His immediate reaction was to take a very strong line against any such conduct. He stamped upon it vigorously. He told the Appellant's supervising Officers, Inspector Watson and two Sergeants, Maloney and Carter, that all forms of racist banter and harassment were unacceptable.The Tribunal then turned to consider the events of early 1993. It appears that, in the early part of that year, the East Cleveland area was plagued by a particular form of crime. Young people, using stolen high-powered motor vehicles, rammed shop fronts and then made their escape at speed. When the police gave chase, as they inevitably did, the occupants of the vehicle would throw substantial objects at the pursuing police cars. Quite often the vehicles were damaged and a number of accidents occurred. One such incident occurred on 20 February 1993, when the Appellant was involved in the pursuit of a stolen Ford Sierra. He had a narrow escape from an ambush and was eventually obliged to give up the chase because the clutch burned out of his vehicle. That incident gave rise to no criticism of his conduct.However, a second incident occurred on 21 March in respect of which the Appellant was eventually to be quite severely criticised. On this occasion the Appellant was driving his police vehicle near Guisborough when he intercepted and pursued a stolen Range Rover which had deliberately rammed a number of other police cars. As the chase continued the occupants of the stolen vehicle rained a large number of objects on the Appellant's car. The Appellant lost control of his vehicle which struck a low wall. The police vehicle sustained some damage and part of the wall was demolished. The Appellant stopped briefly, but again, contrary to standing orders as the Tribunal found, carried on in the pursuit. It would seem, from photographs that we have seen, that the vehicle had lost a headlight and an indicator. This pursuit was taking place at night. It continued for some time and, at one stage, the Appellant drove across an open field. Eventually, whilst on a conventional road, the engine failed. The Tribunal record that the most likely cause of that failure was the dropping of several gears whilst the vehicle was travelling at high speed. The repair cost some £7,000. We have been told that there was some dispute as to the manner of driving by the Appellant prior to the failure of the engine. We have been shown the Appellant's statement in which his version of events is set out. We can do no more than record this difference of view but, as we have indicated, the Tribunal's finding was that the most likely cause was over-driving.The incident on 21 March, including the engine failure, came to the attention of Superintendent Mason. He was the Officer senior to Chief Inspector Evans, who in March was not regularly in Middlesbrough, on account of his attendance at a course at Bramhill. It appears that Superintendent Mason received a report, which had been prepared by Sergeant Carter, who was the Appellant's immediate senior Officer. That report had been sanctioned by Inspector Watson, the Officer next up the line in B Relief. The report exonerated the Appellant from any criticism in respect of the accident. The report did not specifically mention the engine failure. It appears that Superintendent Mason saw the Appellant towards the end of March 1993, heard his account of how the engine failure had taken place, advised him as to his manner of driving in future and told him that the matter would be dropped. The advice given appears to have been that he should treat the car more sympathetically.Two further incidents occurred during April, that is before Chief Inspector Evans returned to Middlesbrough to take full command of his department. These involved damage to two police cars. On 19 April 1993 the Appellant took out a vehicle and on his return handed it over to PC Parry, an Officer on C Relief, telling him that the car pulled to the near side when under acceleration. On further examination PC Parry discovered that the problem was quite serious and also found that there were some signs of recent damage to which his attention had not been drawn. PC Parry's suspicion fell upon the Appellant as having been responsible for this damage, although, as the Tribunal observed, the vehicle log had not been completed by whoever it was who had had it immediately before the Appellant had used it.A second incident occurred on 27 April 1993, when PC Young, who was also on C Relief, drove another police car after the Appellant had recently used it. On examination he found deposits of mud along the nearside and the nearside front wheel arch, and found that the Appellant had made an entry in the log book to the effect that there had been some scraping on the nearside front wheel trim. PC Young however, on examining the vehicle more carefully, found recent and quite separate damage to the nearside front bottom wishbone and the inner edge of the nearside front wheel. He made a report to his superiors. The suggestion was that the Appellant had been responsible for this damage and had not drawn it to the attention of his superiors or logged it in the records as he should have done. Those matters remained unresolved for some time.In mid-May the second Respondent, Chief Inspector Evans, returned to the department. He saw the file in relation to the accident and engine failure of 21 March and was extremely concerned about it. He was concerned that the incident had been investigated by one of the Appellant's own supervisors, Sergeant Carter, who had reported to Inspector Watson, the Inspector in charge of the Appellant's own Relief. He was also concerned that it seemed that the Appellant had failed to stop after the accident, contrary to regulations, and that Sergeant Carter had not queried the Appellant's decision to continue with the pursuit. Mr Evans also knew something about the circumstances of the incident in January 1992. It appeared to him that these were two serious matters, the second of which had not been properly investigated. He decided to ask the third Respondent, Inspector Megginson, to investigate the incident of 21 March 1993 and the engine damage, and to cover all incidents relating to the Appellant's driving. As the Tribunal observed, no such enquiry had ever been made before within that department. While all individual police accidents were investigated, no investigation had ever been reopened or conducted in such a general way as the investigation which then ensued.Inspector Megginson conducted a very detailed investigation. Indeed, criticism was made that this was over-thorough and oppressive, but the Tribunal did not accept that it was. In the course of the investigation and before the report had been completed, Chief Inspector Evans decided that he had heard enough of the enquiry to conclude that he ought to limit the Appellant's permission to drive. He did not suspend him entirely. He took the view that it would be unfair to do so as the matters which were under investigation were somewhat stale, but he suspended him from driving in pursuit. That would mean that, in effect, the Appellant could only drive a police car in the company of another Officer from the Road Traffic Department. If a pursuit situation arose, the other Officer would have to take over the driving seat.On 9 July 1993 Mr Megginson submitted his report to Chief Inspector Evans. It was highly critical of the Appellant. He concluded that the Appellant had been at fault with regard to both the January 1992 incident and the March 1993 incident. He was also critical of him in respect of the engine damage on that second occasion. The Tribunal considered that there was evidence before Mr Megginson to support his conclusions. Mr Megginson also concluded that in respect of the damage discovered by PC Parry and PC Young, that it was "quite apparent that PC Alam had been far from liberal with the truth in respect of these instances, leaving his colleagues the task of discovering the full extent of the damage for themselves". He reached that conclusion, as the Tribunal observed, without having once spoken to the Appellant. He expressed the opinion that the Appellant had an attitude problem and that he appeared to be "on a permanent high when put under pressure whilst driving police vehicles at speed and/or in pursuit situations to the extent that it seriously affects his judgement and driving ability". Once again, as the Tribunal observed, he reached that conclusion without speaking to the Appellant.Inspector Megginson suggested that the Appellant should be informed, in the strongest possible terms, that damage of this nature appeared to be the result of his aggressive and unsympathetic driving and that any repetition would put his future in the Traffic Division at risk. In effect, he was recommending a strong warning.By this time, the Officers in charge of B Relief had discovered that Chief Inspector Evans had instructed Inspector Megginson to carry out his investigation. The investigation was carried out without any reference, not only to the Appellant, but also to Sergeant Carter, his immediate superior and Inspector Watson, who was in charge of the Relief. Inspector Watson, having found out about the enquiry, instructed Sergeant Carter to carry out his own investigation into these matters, and in particular into the allegations of PC Parry and PC Young.On 14 July 1993 Sergeant Carter submitted a report in which he exonerated the Appellant from any blame in connection with the unexplained damage discovered in April and suggested that he had been made a scapegoat in those matters.Sergeant Carter's report was, as the Tribunal found, sent to Chief Inspector Evans. Chief Inspector Evans denied that he had ever received it and the Tribunal found that he had lied in giving that evidence.On 9 August 1993 Chief Inspector Evans summoned the Appellant to a meeting at which he was told of all the matters of complaint which had been investigated. The Appellant denied all the allegations and suggested that the second Respondent, Chief Inspector Evans, should speak to other Officers about the standard of his driving. The second Respondent decided not to do so. He did not regard it as necessary.On 13 August, Chief Inspector Evans submitted his own report to his superior, Superintendent Mason. He enclosed with it Inspector Megginson's report which, as we have observed, was very critical of the Appellant. He did not enclose Sergeant Carter's report which sought to exonerate the Appellant from blame, at least in respect of some matters. The burden of Chief Inspector Evans' report was that he considered that the Appellant should be removed from the Division and returned to district duties. He said:
"It appears that in pursuit situations this officer, for whatever reason, is unable to maintain his driving discipline."
The Tribunal rejected Chief Inspector Evans' claim that the only reason that Sergeant Carter's report had not been enclosed was that he did not have it. They found that he did have it and deliberately withheld it from his superior. In fact, as the Tribunal observed, Superintendent Mason became aware of that report and when he deliberated upon the Appellant he was able to take Sergeant Carter's views into account. He did not accept Chief Inspector Evans' submission that the Appellant should be removed from the department, but directed that he should be given a warning as to his future conduct.Those were the facts as found by the Tribunal. The Tribunal then considered whether the Appellant had suffered a detriment in that he had been treated differently from the way in which other people had been treated and they found that he had. They said that he had been the subject of an investigation several months after the events concerned and after the Appellant had already been cleared of blame by his own senior Officers. They observed that the Appellant had not been told about the investigation and had not been given an opportunity to put his side of the story until a very late stage. They observed that the investigator, Inspector Megginson, had gone behind the back, not only of the Appellant but also of his superior Officers. As a result of the investigation, the Appellant had been suspended from driving in pursuit situations. The investigation had led to criticism and a recommendation from the second Respondent that he should be removed from the Division. Also, the Appellant had not been considered for a VIP driving course, for which he had applied. They were satisfied that he had been subjected to a number of detriments.They then set out in a long section, which appears at paragraph 29 of their decision, their reasons for their conclusion:
"However, we came to the conclusion that with regard to all of these matters neither the second nor the third respondent nor indeed any other Police Officer for whom the first respondent might be vicariously liable treated the applicant in a manner different from that in which another, white Officer, would have been treated. No other Officer on the Department had been investigated in quite this way - that is so late after the main event and so generally - and no other such Officer had been suspended from pursuit driving alone. However, all Polaccs [ accidents involving police cars] were investigated. In the case of a serious accident - and in our view, that which occurred on 21 March 1993 was serious - it was often the case that the Officer was suspended from all driving. Transfers from the Department, as a result of accidents, were rare but did occur: in fact, for precisely this reason, one of the Officers who gave evidence before us was so transferred. We were satisfied that the second respondent ordered the investigation because, with good reason, he was extremely perturbed about the level of consideration previously given to the accident. We took the view that he ordered a general investigation of the applicant's driving ability and record because he had some general knowledge of the incident of 4 January 1992 and, understandably, saw certain similarities between the incidents. In our judgment, he would have behaved in just the same way had the applicant been a white Police Officer. By the same token, the suspension which he meted out was entirely due to his concerns about the applicant's driving ability and was not influenced by his race: in fact, the extent of the suspension was tempered because of the time that had elapsed. We accepted that the opinions reached and the recommendations made by both the second and third respondents were also due to their genuine concern over the applicant's suitability for the Department and that such concern would have arisen irrespective of his race. We were concerned by the failure to discuss matters with the applicant, at least until an extremely late stage, coupled with the decision to talk about him to officers on D Relief who may have been prejudiced against him. This was unfair to the applicant. However, we were conscious of the fact that we were not a sort of Disciplinary Appeals Committee and that we were not concerned with unfairness in procedures unless it led us to the view that such unfairness would not have been present had the applicant been of a different ethnic origin. We gave careful consideration to that question and did not come to that view. We do not think that the second and third respondents would have behaved any differently if the applicant had been a white Officer. The evidence before us seemed to suggest that consultation with the subject of an enquiry may not always be seen to be of paramount importance. That is something which the first respondent may care to address. We were even more concerned by our view that, to put it bluntly, the second respondent had deliberately withheld from Superintendent Mason a report from Sergeant Carter. Once again, however, having examined all the facts of the case we came to the conclusion that the second respondent would have behaved in precisely the same way irrespective of the ethnic origin of the applicant. In our view, he withheld this report simply because he did not accept its conclusions (indeed, he would have regarded it - not entirely without justification, - as being as suspect as that which had cleared the applicant in relation to the accident of 21 March 1993) and not because the applicant was not a white Officer. ..."
They dismissed the application.Mr Kirtley, for the Appellant, has made two main submissions before us. We can deal with the first quite briefly. He set out four instances in which he alleged that the evidence showed that the employers had treated the Appellant differently from white Officers in similar circumstances. These instances were examples of disciplinary treatment of other Officers in which he alleged that the Appellant had been treated more severely in similar circumstances.He submitted that the Industrial Tribunal had failed to take these instances into account, or had failed to give them sufficient weight. It will be seen from our review of the decision that such instances were not even mentioned in the Tribunal decision, and we were concerned at the outset to know whether it was to be alleged that the Tribunal had wrongly failed to deal with these matters as discrete issues having been invited by the Appellant to do so.Mr Kirtley, who had not appeared below, could not assist but he reminded us, properly, that the Appellant had appeared in person before the Tribunal. Mr O'Neill, who did appear for the Respondents below and also appeared before us, assured us that, although evidence relating to these incidents and the parts played by various Officers in them was given before the Tribunal (along with a great deal of other evidence), by the end of the case it was clear that these parts of the evidence did not amount to very much and they were not specifically relied upon by the Appellant. We find that entirely credible as, on examination, it did not seem to us that in any one of the four instances one could really say that one was comparing similar situations. Although this ground of appeal was not formally abandoned by Mr Kirtley, he very sensibly did not pursue it with any vigour and we have no hesitation in saying that it contains no merit.The essential ground of appeal related to the Industrial Tribunal's refusal to draw an inference that a racial motive, whether conscious or unconscious, lay behind Chief Inspector Evans' conduct in respect of his failure to submit to his superior the favourable report of Sergeant Carter and his deceitful attempts to deny that he had ever had the report in his possession.We can see the force of the submission. The Tribunal were critical of this Officer, who seems to have been determined to advance his own view of the Appellant to Superintendent Mason, by what must appear to have been unfair means. If the Industrial Tribunal had chosen to conclude that this unfairness and deceit had been racially motivated, no one could have suggested that they were not entitled to do so; but they did not. Instead, they provided for Chief Inspector Evans, an explanation which he had not put forward himself. Indeed, he could not put forward any explanation for his failure to advance Sergeant Carter's report as he denied ever having received it. The Tribunal chose to draw the inference that his actions were motivated, not by racial bias, but by an honest conviction that this Appellant ought to be transferred out of the Traffic Department, and a not unjustified fear that Sergeant Carter's report was not as objective as it should have been. In effect, the Tribunal considered that Chief Inspector Evans had some justification for believing that Sergeant Carter was sticking up for one of his own men.Mr Kirtley accepts, of course, that we have no power to disturb the inferences which are to be drawn in a case such as this, provided that it was open to the Industrial Tribunal to draw them. In this case we are quite satisfied that there was evidence on which the Industrial Tribunal were entitled to draw the inference that Chief Inspector Evans was motivated by matters which had nothing to do with race. We have set out the evidence in some detail and consider that the basis of the Tribunal's decision can clearly be seen from that recital of the facts. As we have said, the decision could have gone either way. This Tribunal heard the evidence over a very long period of time; they heard and saw Chief Inspector Evans and Inspector Megginson. They had noted Chief Inspector Evans' attitude to racial harassment when he first took up his position. He had stamped vigorously upon it.We are quite satisfied that no criticism can be made of the substance of this decision. There was evidence upon which this Tribunal could draw the inferences that they drew. As is often the case, particularly where so large a volume of evidence is received, Counsel has been able to point to minor factual errors in the Tribunal's decision, but there is nothing which affects the validity of their conclusions. Indeed, we would commend this decision. It is most carefully set out and we have found the reasoning clear.For those reasons we are unanimous in our conclusion that this appeal must be dismissed.