CHIEF CONSTABLE OF THE KENT CONSTABULARY v MR J KUFEJI [2001] UKEAT 1135_00_0405

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1135_00_0405Case No Appeal No. EAT/1135/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
CHIEF CONSTABLE OF THE KENT CONSTABULARYAPPELLANTMR J KUFEJIRESPONDENT
Before
His Honour Judge Peter Clark Ms N Amin Miss S M WilsonDate 4 May 2001
[1]APPEARANCES For the Appellant MR ANTHONY KORN (of Counsel) Instructed By: Ms Frances Williams Kent County Council Legal & Secretariat Sessions House County Hall Maidstone Kent ME14 1XQ For the Respondent MR JACK MITCHELL (of Counsel) Instructed By: Ms R Karavadra Messrs Langley & Co Solicitors Newport House Doddington Road Business Park Lincoln LN6 3JY JUDGE PETER CLARK : The applicant before the Ashford Employment Tribunal, Mr Jimi Kufeji, was a serving police constable in the Kent Constabulary from 16th August 1993 until his resignation on 21st August 1998.[2]On 20th November 1998 he presented an Originating Application to the Employment Tribunal complaining of unlawful racial discrimination. Following a preliminary hearing held on 23rd June 1999 questions of limitation were decided and the specific complaints of discrimination formulated. Those complaints were later transposed into an amended Originating Application dated 1st March 2000. There were eight in all.[3]The substantive hearing of the claim took place over eleven days before a tribunal chaired by Mr Michael Zuke. Following two further days of deliberation in chambers the tribunal promulgated their decision with extended reasons on 15th August 2000. Three of the individual complaints (one in part only) were upheld. The remainder were dismissed. Against two of those findings this appeal is brought by the respondent Chief Constable. Background[4]The applicant is black and of Nigerian origin. Following initial training he was stationed at Dover Police Station. From January 1996 he was attached to the case investigation team (CIT). That attachment became permanent in late April 1996. He was the only black office in CIT.[5]CIT officers are responsible for preparing the case file following arrest, compiling and collating evidence and preparing the case for prosecution.[6]By January 1998 the senior office in the CIT team, DI Scott, had concerns about the applicant's performance. Accordingly he appointed another officer, PC Bridges to shadow him and to provide guidance and support in developing his skills in CIT work. The relevant complaints[7]For present purposes we need focus only on two complaints: (1) The postcard complaint (complaint (t) ) Marc Spearpoint was a police constable in the CIT team. He is white South African. In February 1997 he went to South Africa on holiday. Whilst there he sent a postcard to Dover Police Station. It was addressed to DI Scott + CIT. The front of the card shows six black African women in traditional dress, two standing and four kneeling. Each is bare-breasted. The tribunal formed the view that the poses were natural and relaxed and could not be described as sexually provocative. The message on the reverse of the card read:
"To all the lads. South African's answer to Mayfair …"
It was common for officers, when on holiday, to send cards to their colleagues as a group. PC Spearpoint conceded that he anticipated that the applicant would see the card and intended him to do so. In that sense the tribunal accepted that PC Spearpoint did send the card to the applicant, although it was not addressed to him individually. The card circulated through the office and eventually landed on the applicant's desk. He found it extremely offensive and wrote a memo to DI Scott in these terms:
"I turned up this afternoon and found a postcard depicting semi-clad/nude women on my desk. I noted that this card had been floating around the office yesterday 10/3/97 with some laughter. I know not how or why it ended up on my desk. I would mention for the record that I do not appreciate this. If it was someone's idea of a sick joke it is not in my view funny. Perhaps you would draw it to the attention of the person or persons concerned. I await your comments. Here follows copy of postcard."
Before releasing that memo the applicant spoke to PS Welburn, something of Dutch uncle at the station, seeking informal advice. PS Wellburn thought the card a poor attempt at a joke. He believed that the Mayfair comment was a reference to the state of the South African economy, in comparison to an expensive area in London. He left it up to the applicant to decide whether or not to make a complaint. The applicant believed that the Mayfair comment was a reference to an area associated with prostitution, the inference being that black South African women were prostitutes. PC Spearpoint, on the other hand, intended the Mayfair comment to refer to what he described in evidence as the "girlie" magazine of that name. He intended it to be an ironic reference to the conservative Afrikaners in the Dutch Reform Church. In evidence, PC Spearpoint said that he did not think that a black person would find the card offensive, but that had he received the respondent's equal opportunities statement about sexual and racial harassment before going on holiday he would have still sent the card, but would not have included the Mayfair message. (2) The DS Simmonds complaint (complaint (y)) One of the applicant's supervisors in CIT was DS Simmonds. He was described by the tribunal, at paragraph 74 of their reasons, as a highly competent and effective police officer. He was highly regarded and respected by his colleagues for his professional work. He set high standards for himself and expected others to abide by them. He justifiably held a high opinion of his own abilities. His manner was direct and his supervisory style interventionist. He did not shrink from expressing his views both to colleagues and officers under his supervision. He did not take kindly to junior officers questioning his judgment or views. An allegation by the applicant that he habitually turned up for work the worse for drink was roundly rejected by the tribunal. There was evidence, accepted by the tribunal, that on occasions he forcefully criticised the work of one his juniors, PC Auld, a white officer. We have earlier mentioned the role assigned to PC Bridges by DI Scott to assist the applicant. On one occasion in January 1998 PC Bridges advised the applicant, in connection with one of his files, file H, to ask a uniformed officer to undertake a particular enquiry. The enquiry would normally be undertaken by the CIT officer assigned to the case, but PC Bridges thought it was a reasonable shortcut to delegate the particular task to a uniformed officer. The H filed then went before DC Simmonds. He disagreed with Mr Bridge's advice and told the applicant that he should himself have made the enquiry. The applicant pointed out that he had followed PC Bridge's advice. A discussion followed during which the applicant stood his ground on the basis that he had done what PC Bridges had said. DS Simmonds became increasingly annoyed that the applicant was disagreeing with him and eventually banged his fist on the desk, saying "Now read my lips" and telling the applicant to do what he was being told. The applicant was extremely distressed by this encounter. In early February 1998 he went off sick, never to return to work for the respondent. Employment Tribunal conclusions[8]The tribunal had the advantage of experienced counsel, who now appear before us, representing the parties. They were referred to all the relevant authorities, listed at paragraph 104 of the reasons. They reminded themselves of the material statutory provisions. We come now to their application of the law to the facts as found.[9]Complaint (t) This complaint was formulated, so far as is material, as follows:
"On or around February 1997 Police Constable Spearpoint racially harassed the Applicant by sending him a postcard from South Africa showing a group of bare-breasted black women. …"
Based on their findings of fact the tribunal concluded that a combination of the picture on the front of the postcard and PC Spearpoint's reference to Mayfair, which they found on any view to be a derogatory comment about black African women, was race specific, obviating the need for further comparisons. Having found less favourable treatment of the applicant they concluded that this was on racial grounds. A black recipient, in this case the applicant, was likely to be and was offended by it in a way which a white officer would not have been. They bore in mind PC Spearpoint's concession that had he been aware of the respondent's equal opportunities statement he would not have made the Mayfair comment on the back of the postcard.[10]Complaint (y) The relevant part of the complaints reads:
"In early 1998 Det. Sgt. Simmonds rebuked and treated the Applicant in a way he would not have done with white officers."
The tribunal asked themselves whether DS Simmonds would have treated a white officer in the same way, as he asserted in evidence he would have done, in similar circumstances. Those circumstances included the fact that the applicant was someone who was experiencing difficulties with his work to the extent that PC Bridges was appointed to shadow him. They found that DS Simmonds would not have reacted similarly in dealing with a white officer, particularly banging his fist on the table and using the words "now read by lips". That was behaviour by a manager to a subordinate which carried a degree of aggression and threats. Having found less favourable treatment compared with an hypothetical white comparator the tribunal considered whether that treatment was on the grounds of race. They found that it was. Specifically, they concluded that unconsciously DS Simmonds treated the applicant differently because he was black; because he was faced with a black officer who was standing his ground and arguing his case instead of readily accepting DS Simmonds instruction to carry out personally the enquiry which PC Bridges had advised him to delegate to a uniformed officer. For completeness we should add that in respect of both relevant complaints the tribunal found that the respondent had failed to make out the statutory defence under s.32(3) of the Race Relations Act 1976 ('RRA 1976'). There is no appeal against that finding. The Appeal[11]It is convenient to follow the course taken by counsel in oral submissions, that is to deal separately with the two specific findings of unlawful discrimination now under appeal.[12]The postcard We begin with two preliminary points taken by Mr Korn. First, he submits that the tribunal failed to consider the actual complaint (t) as formulated, but decided a different complaint. Complaint (t) relates solely to the postcard; the tribunal found that it was combination of the picture on the front and words written on the back by PC Spearpoint which rendered it a "race specific communication" – (Reasons. Paragraph 111). We think that that is a pleading point worthy of a 19th century Chancery practitioner. It is plain to us that the case advanced below involved the whole of the document, not simply the picture on the front. Hence the detailed enquiry into(a) what PC Spearpoint meant by his words(b) how the applicant understood them and even(c) the view formed by PS Wellburn when consulted about the matter by the applicant. Secondly, it is contended that the tribunal was wrong to find (Reasons. Paragraph 108) that PC Spearpoint sent the card to the applicant. There was no basis for that conclusion. Again, we reject that submission. As a matter of fact the tribunal found that the card, addressed to "DI Scott + CIT" (which included the applicant), was sent in circumstances where: (a) PC Spearpoint accepted in evidence that the applicant would see the card and intended him to do so, and (b) cards sent from officers on leave were as a matter of practice circulated amongst the officers or put on the notice board. Based on those findings the further finding that the card was sent to the applicant by PC Spearpoint is plainly a permissible one open to the tribunal.[13]We mention those two points for completeness. They are raised in the Notice of Appeal, although they were not in the forefront of Mr Korn's oral submissions.[14]In order to consider those submissions it is first necessary to say something about the law. This is a complaint of direct unlawful racial discrimination. By a combination of sections 1(1)(a) and 4(2)(c) RRA !976 it is for the applicant to show less favourable treatment on racial grounds and that that treatment was to his detriment.[15]Cases do arise where that statutory process is effectively short-circuited; they are characterised as cases of racial (or, in the equivalent discrimination field, sexual) harassment.[16]Sexual or racial harassment is not defined by statute, as Morison J pointed out in Reed and Bull Information Systems Ltd v Stedman [1999] IRLR 299 , paragraph 26. The kind of conduct which constitutes such harassment can be and usually is sex or race specific. See per Ward LJ in Smith v Gardner Merchant Ltd [1998] IRLR 510 , paragraph 44. A classic example is to be found on the facts in Porcelli v Strathclyde Regional Council [1986] IRLR 14 . However Ward LJ went on in Smith (paragraph 45) to caution that because the conduct complained of is gender (we would add here, or racial) specific it is not the case that it is unnecessary to look for an appropriate comparator; rather that if the conduct is gender/race based then, in the nature of harassment, it is almost certainly bound as a matter of fact to be less favourable treatment on the grounds of sex/race.[17]We take from these observations the practical point that a true case of sexual/racial harassment will, by its factual nature, encompass the necessary ingredients of less favourable treatment; sexual/racial grounds and detriment. See, by way of further example, the factual background in the sexual harassment cases of Insitu Cleaning Co Ltd v Heads [1995] IRLR 4 ; Driskel v Peninsula Business Services Ltd [2000] IRLR 151 and the race specific behaviour in Sidhu v Aerospace [2000] IRLR 602 .[18]The difficulty arises where the facts do not immediately lead to the conclusion that racial/sexual harassment has occurred. In these circumstances we remind ourselves that ultimately there can be no substitute for the words of the statute.[19]Against that background we turn to Mr Korn's substantive submissions. He developed the argument, as we understand it, in this way:(1) the sending of the postcard by PC Spearpoint to the applicant was not, of itself, an obvious case of racial harassment which by-passed the need for the tribunal to pose and answer the statutory questions.(2) if those questions are asked and answered the applicant's claim fails at one or more of the following stages: (a) whether it amounted to less favourable treatment when the appropriate comparison is made; (b) whether, if it was less favourable treatment it was on racial grounds; (c) whether, if so, the applicant suffered a detriment.[20]We shall consider the argument on those lines.(1) Racial harassment Was the act of sending the postcard so obviously detrimental that it is disadvantageous (using the synonym for 'detriment' to be found in Jeremiah v Ministry of Defence [1980] ICR 13 , 26C, per Brandon LJ) to the applicant as a black employee by undermining his dignity at work? That question is to be answered by considering a combination of factors; what was the applicant's subjective perception; what was the motive of the alleged discriminator, PC Spearpoint; how, objectively would the reasonable black employee react to the treatment complained of; would he regard it as to his detriment ( Jeremiah . 30G. per Brightman LJ)? Those factors, listed by Holland J in Driskel , paragraph 12(3), are not inconsistent with the principle that the discriminator's motive or intention is irrelevant to proof of less favourable treatment on racial grounds (see James v Eastleigh Borough Council [1990] ICR 554 , applied in Nagarajan v London Regional Transport [1999] ICR 877 HL ), rather that if bad motive is in fact made out, the applicant's case becomes so much stronger. In the present case we are satisfied, on the tribunal's primary findings of fact, that the conclusion that this was a case of race specific behaviour amounting to unlawful discrimination was a permissible option. Objectively viewed, the postcard with its comments was racially offensive. It landed on the applicant's desk with other, white officers laughing. He was genuinely distressed by it and that was not an overreaction in the tribunal's view. It passes the racial harassment test.(2) The statutory approach However, the tribunal did not end there. In paragraph 112 of their reasons the tribunal found: (a) that by sending the card to the applicant PC Spearpoint, and through him the respondent, treated him less favourably than a white comparator. He was and was likely to be offended by it in a way that a white officer would not be. We pause to observe that that comparison has a basis in fact; white officers were laughing; the applicant most certainly was not. He was genuinely and reasonably offended. (b) the postcard was a communication about black women. Thus the less favourable treatment was on racial grounds. (c) the treatment was to the applicant's detriment. He was seriously offended in the context of being the only black officer in CIT. Approached in this way we reject Mr Korn's submissions that the tribunal substituted its view of the proper 'construction' of the postcard for that of both sender and recipient, or failed to consider the explanation by PC Spearpoint for his action. On the contrary, the ET carefully considered both PC Spearpoint's motivation and the applicant's understanding of its purport in reaching an overall objective assessment of the facts so as to arrive at a conclusion. In carrying out that exercise the tribunal was entitled to take into account also PC Spearpoint's concession (Reasons. Paragraph 50) that had the respondent's equal opportunities statement about racial harassment been drawn to his attention whilst he would still have sent the card, he would not have written the message alluding to Mayfair. In these circumstances we are not persuaded that any error of law is disclosed in the tribunal's finding that complaint (t) was well-founded.[21]DS Simmonds (complaint (y)) Here, there was no complaint of race specific conduct by DS Simmonds. Mr Korn also reminds us as to the tribunal's general assessment of DS Simmonds as a manager (Reasons. Paragraph 74); the fact that a further complaint against that officer (complaint (v)), relating to his review of two of the applicant's files, one of which feature in complaint (y), was rejected by the tribunal; the tribunal's further rejection of the applicant's suggestion that DS Simmonds was drunk on duty (paragraph 76) and further findings made by the tribunal. For the purposes of his argument on this aspect of the case Mr Korn adopts the four-stage approach to determining unlawful direct discrimination which I proffered in Jiad v BBC (3rd February 2000. Unreported) , based on the speech of Lord Browne-Wilkinson in Zafar v Glasgow City Council [1998] ICR 120 , namely:(1) was there a difference in treatment between the complainant and an actual or hypothetical comparator?(2) was there a difference in race between the complainant and comparator?(3) if so, has the respondent provided an adequate explanation for that difference in treatment?(4) if not, should the tribunal draw an adverse inference of unlawful discrimination on racial grounds against the respondent? Applying that approach, Mr Korn takes these points in relation to the tribunal's findings on complaint (y): (1) did the tribunal select an appropriate comparator, bearing in mind the "like for like" comparison required by s.3(4) RRA 1976? (2) did the tribunal consider the explanation put forward by DS Simmonds for his actions on this occasion? (3) can discrimination be unconscious as opposed to subconscious? (4) in reaching their conclusion on this complaint did the tribunal: (a) fail to consider the totality of the evidence' and (b) reach a conclusion which was inconsistent with their other findings? Again, we shall consider those points in turn.[22]The comparator At paragraph 126 of their reasons the tribunal identify the relevant comparator as a white officer who was, like the applicant, experiencing difficulty with his work to the extent that PC Bridges had been appointed as his mentor. Would such an officer have been rebuked, in similar circumstances, in the severe and aggressive manner in which the tribunal found the applicant was treated? Mr Korn submits that such a comparison underestimates the applicant's record of performance. We disagree. It seems to us that the hypothetical comparator chosen by the tribunal complied with the requirements of s.3(4).[23]DS Simmonds' explanation Mr Korn submits that, in evidence, DS Simmonds explained that he reacted in the way that he did towards the applicant out of frustration at the repeated errors in the applicant's work. This explanation, he argues, is not dealt with by the tribunal in their fact-finding (paragraphs 91-2), nor in their conclusions on this part of the case; on the contrary, at paragraph 128 they say in terms that they cannot find an alternative explanation (to the treatment being on racial grounds). Here, we accept Mr Mitchell's submission that it is implicit in the tribunal's findings that properly understood the tribunal are saying nor more than that they were unable to find an alternative, innocent explanation for DS Simmonds' extreme behaviour, which they were satisfied would not have been meted out to a white officer. Further we are satisfied such finding wend beyond a mere intuitive hunch (see Chapman v Simon [1994] IRLR 124 , paragraph 43, per Peter Gibson LJ). That inference was drawn from the whole of the evidence and their findings of fact, a point to which we shall return below.[24]Unconscious/Subconscious Whilst it is right to say that, for example, in Nagarajan Lord Nicholls (885E) speaks of subconscious motivation rather than unconscious motivation in contradistinction to conscious motivation. However, as Mr Mitchell points out, in Falkirk Council v Whyte [1997] IRLR 560 , paragraph 4, Lord Johnston referred to "unconscious discrimination". We do not accept the semantic point taken by Mr Korn. We think that the words may be used interchangeably in this context. This tribunal found that DS Simmonds was not consciously influenced in his treatment of the applicant by his race, but that he was so influenced at a lower level of consciousness. That is sufficient for the purposes of establishing the statutory tort, provided there were findings of primary fact from which that inference could properly be drawn. That brings us to Mr Korn's final submission.[25]Drawing the inference Mummery J in Qureshi v Victoria University of Manchester (EAT/484/94, 21st June 1996 still unreported) Transcript 9D-F, criticised the "impermissible piecemeal approach" of the Industrial Tribunal in that case to the individual acts complained of by the applicant. He emphasised the need to step back and look at the facts as a whole to determine whether the complaint was made out. Mr Korn relies on the reverse side of that particular coin. He submits that taking the findings of primary fact as a whole there was no basis on which the tribunal could properly draw an adverse inference of unlawful discrimination against DS Simmonds and through him the respondent. Alternatively, that conclusion was inconsistent with the other findings of fact made by the tribunal.[26]We are not persuaded that the tribunal fell into the error in this way. It seems to us that this tribunal was particularly careful to judge the factual issues as they arose, without any predilection to accept one account or the other. Having made those primary findings they were still required to adjudicate on each live complaint. The distinction which they draw, for example, between complaints (v) and (y), both affecting DS Simmonds, as a matter of racial discrimination, seems to us to bear out that impression. In declining to draw the adverse inference on complaint (v) they had in mind particularly their judgment as to DS Simmonds' management style. When it came to complaint (y) they also took into account his general approach and concluded that he had gone beyond his normal testiness in dealing with what he saw as inefficiency by a subordinate. Having thus rejected DS Simmonds' evidence, implicitly if not expressly, that he would have treated a comparable white officer in the same way, they concluded that it was the fact that the applicant was a black officer who stood his ground that, at one level, influenced DS Simmonds to react as he did.[27]We are conscious of the need, on the authorities, for the tribunal to base such an inference on their primary findings of fact. That said, we cannot overlook the valuable guidance, given by Neill LJ in King v Great Britain China Centre [1992] ICR 528 -9 and approved by the House of Lords in Zafar . It is unusual to find direct evidence of racial discrimination. If the primary facts found, as here, show a difference in treatment and a difference in race and the explanation given for that treatment is rejected, then the tribunal may, not must, (cf. Zafar ; Jiad ) draw an adverse inference. In our view appellate courts should be slow to interfere with the judgment of the fact-finding tribunal at this stage. What is plainly not permissible, on appeal, is for the court simply to take a different view on the facts to that formed by the first instance tribunal.[28]In our judgment the primary facts as found in this case allowed of the ultimate conclusion reached by the tribunal, they having had the advantage, which we do not, of seeing and hearing the witnesses. Conclusion[29]It follows that this appeal must be dismissed.