MR R J STEEL v THE CHIEF CONSTABLE OF THAMES VALLEY POLICE [2004] UKEAT 0793_03_1703

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0793_03_1703Case No Appeal No. UKEAT/0793/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R J STEELAPPELLANTTHE CHIEF CONSTABLE OF THAMES VALLEY POLICERESPONDENT
Before
Mr Justice BurtonDate 17 March 2004
[1]APPEARANCES For the Appellant MR JOHN HORAN (of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors Swinton House 324 Gray's Inn Road London WC1X 8DH For the Respondent MR ANTHONY KORN (of Counsel) Instructed by: Thames Valley Police Authority Police Headquarters Oxford Road Kidlington Oxford OX5 2NX SUMMARY Sex Discrimination Male police officer complained unsuccessfully of sex discrimination in relation to posting in light of his family responsibilities. Appeal on ground that not all alleged breaches of Code of Practice dealt with by ET, insufficient dealing with delay to and adequacy of replies to questionnaire, and general application of Anya . Appeal dismissed as ET fully dealt with issues (save detriment which had no effect on result). Anya sufficiently complied with, particularly by reference to Wheeler [2001] EWCA Civ 844 unreported per Lord Phillips MR. THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This has been the hearing of an appeal by Mr Steel ("the Applicant") against the unanimous decision of the Employment Tribunal at Reading, after a 5-day hearing in July 2003, in a Decision handed down on 4 August 2003, that the Applicant's claim for sex discrimination by the Chief Constable of Thames Valley Police failed and was dismissed.[2]The Applicant who, as far as we know and hope, is still a serving member of the police force – certainly he was at the time of the application – had ceased to be a Special Constable involved on a particular course in relation to dog-handling, which had developed his skills in that regard over a period of years. He had originally been posted to a particular police area, namely Oxford, and when his allocation to the Dog Section ceased he was to be reassigned back to that original area in accordance with the Respondent's ordinary posting policy.[3]Oxford had a particular requirement for experienced officers. However, he sought to be moved instead nearer to his home in South Oxfordshire. The Tribunal refers, in paragraph 8 of its Decision, to a letter that he wrote to an Inspector Cliff requesting that consideration be given to a posting in South Oxfordshire and his letter dated 20 July 2001 is there quoted. It reads as follows:
"I would also like to reiterate my concerns in relation to my family and financial welfare, in that as a single parent of two children under 10 years of age. I do rely heavily on a registered childminder. The childminder runs her social, business and family life around my duties as published, and as such arrangements have been made for this year and next in relation to hours and annual leave. I can see as a result of this move from dog section I will require a great deal more childminding hours than at present and at different times. I therefore respectfully request if possible, could consideration be given to me being posted to the South Oxfordshire Police area, and in particular the Wantage or Wallingford areas. I worked in this area for nine years and know both the police requirements and the personnel. I understand that there are vacancies at present and I would be welcomed there by the local Inspectors. I ask that this request be considered primarily on a family welfare basis, as it would allow me to be closer to my children in case of emergencies, with less travelling distance should I be required. I am also aware that my childminding costs would rise dramatically in relation to the day-to-day policing of larger areas in terms of overtime commitments and longer travelling times, as well as the costs of travelling."
[4]In fact the position is, as was subsequently found, that he had separated from his wife pending divorce, since an unfortunate marital breakdown in 1997. The two children aged 10 and 8 lived with him and his new partner; and, although he was the primary carer, for the two children he had some support in addition from his wife, and also from a regular childminder.[5]Consideration was given by the Respondent over a period from July 2001 to November 2001, as appears from the Decision. But the complaint of unfavourable treatment related to the refusal by the Respondent of that request on or about 5 August 2001 and that led to the issue of an Originating Application on 10 November 2001.[6]The Respondent, as was found by the Tribunal in a very careful decision, took into account a number of matters in reaching its decision. First, policing requirements. Those are set out, identified and explained in paragraph 14 of the Tribunal's decision. Second, what was called the tenure posting policy, being the policy ordinarily operated on termination of a special assignment, that is, return to the original post. That is set out in paragraph 15 of the Tribunal's decision. Thirdly, the Respondent's general posting policy. That is set out in considerable detail in paragraph 16 of the Tribunal's decision. We should set it out as follows:
"Under police regulations the Chief Constable has the right to post an officer anywhere within the Thames Valley Police Area. Generally however it is agreed that an officer is not normally required to reside further than 20 miles (as the crow flies) from their place of work. The applicant resides in Didcot and travelling to central Oxford is 9.87 miles as the crow flies. The distance by road is 14.2 miles. The posting policy … links to other policies; "
The posting policy supports the principles contained within the Service's Equal Opportunities in Employment Policy, the Recruitment Policy and the Tenure of Post Policy. These documents are all interlinked and should be considered as an integral part of this policy." Chief Superintendent Kirby was concerned about the operational resilience of the central Oxford area and in his view this needed to be balanced with the applicant's request to go to the south Oxfordshire Police area. In a memo dated 5 July, 2001 sent to all Assistant Chief Constables, the Director of Personnel, Finance and Services, all Area Commanders and all heads of department and all Personnel Managers … he identified three main issues which needed to be given careful consideration when coordinating the use of the posting and tenure policies. They were: - Recruitment and Retention to maximise police area's strength during a period when any overall growth in numbers may be limited. Experience – to balance skills and experience, especially in supporting development of new staff. Location – to compensate for transfer and recreation of resources away from certain Police areas. The memo specifically mentioned tenure postings from the tenure post to core policing and stated "with regard to postings and the tenured position to police area, the views of the individuals concerned, together with any proposals and comments from the respective Personnel Managers would be welcome. However, the final decision will rest with head of personnel who will take account of territorial policing priorities…" Those are set out, including Oxford, and the Tribunal concludes:
"He also took into account that Oxford was below its required operational strength in terms of experienced officers. However, South Oxfordshire was over their required strengths… In addition more officers were in training in central Oxford at that time than in South Oxfordshire which meant a need for experienced officers in central Oxford to compliment inexperienced officers."
[7]Finally, in paragraph 17, the Tribunal set out the consideration which the Respondent gave to the Applicant's circumstances, being the fourth matter which it considered:
"Chief Inspector Kirby accepted in cross examination that the assumption made by Chief Inspector McBeth that Karen Ashfield was the Applicant's registered childminder was incorrect and that he did not know that at that time he made his decision on 27 July."
We interpose that Ms Ashfield was in fact the partner of the Applicant, with whom he was living, with the children. "It was put to him that the comment was an example of sexism. Whilst it is clear that the reference to Karen Ashfield was incorrect the Tribunal accept Chief Superintendent's Kirby's evidence that it was not a material factor in his decision. He was asked in cross examination whether the comments by Chief Inspector McBeth that the applicant's circumstances were not any different from any other officers was valid. He accepted that many officers both male and female had difficult domestic circumstances and that those have to be viewed against a critical staffing situation. In most cases those could be accommodated in the area they were required to work. The Tribunal accept his evidence that his decision reached on 27 July to confirm the applicant's return to the Oxford area was reached on compelling organisational reasons. The Tribunal also accept that he was conscious and considerate to the applicant's childminding obligations but was confident that the applicant's circumstances and the need for flexibility could be accommodated in the police area to which he was deployed, namely Oxford."[8]Superintendent Friday, who had supported the Applicant's application, wrote as follows on 1 August 2001 to the Applicant, as recorded in paragraph 20 of the Tribunal's Decision:
"Unfortunately, due to existing levels of resourcing at South Oxfordshire and, in compliance with Force Policy, your posting on 3 rd September 2001 will be to Oxford Police Area. I can assure you that there is a compelling argument for supporting this decision which is not taken lightly by Superintendent Kirby. Both he and I are very much aware of your personal circumstances but regrettably we both agree with this outcome."
In paragraph 21 the Tribunal records further evidence from others:
"Joyce Milligan…confirmed the operational need for the Oxford area for experienced police officers such as the applicant. Pat Peters…confirms the operational need at that time. The Tribunal are entirely satisfied that the respondent has proved on the evidence given and the documentation referred to that there was an operational need for the applicant to serve at Oxford with effect from September 2001."
[9]The Tribunal records what then occurred, at paragraph 23:
"On 3 Sept the applicant attended Oxford Police Station for an induction day and to speak with a Police Federation Representative Bob Taylor. They both attended a meeting with Personnel Manager Pat Peters. That meeting was intended by the respondent to assist the applicant. In the course of that meeting Pat Peters explained the dire need in Oxford for experienced officers and the fact that Oxford was below its operational staffing levels. The applicant expressed his concerns at the proposed shifts and the impact that would have on his childcare costs. He was also concerned at difficulties in travelling into Oxford on the park and ride system. The Tribunal accept that the respondent through Pat Peters was prepared to see what could be done in terms of shift duties to assist the applicant in coping with his childcare duties. The applicant's Police Federation Representative suggested that a three month temporary shift pattern of permanent nights on custody would assist the applicant in settling to work in Oxford. Mr Taylor also suggested this would enable the applicant to [sort] out his childcare difficulties and earn overtime payments which would help his financial position. The applicant recalled that the suggestion was shifts in the custody area beginning at 6 p.m. and confirmed that the proposal had been agreed to by Ms Peters. He also confirmed that on 3 September he would have seemed to Ms Peters happy with the proposal. After the meeting the applicant contacted his wife from whom he was separated at that time (he is now divorced) but she was unable to accommodate his new shift patterns in assisting with childcare because she had a new job."
[10]The Tribunal further records, in paragraph 24 as follows:
"The applicant in August/September 2001 was in a stable relationship with Karen Ashfield who lived with him. She is not a registered childminder. He had an arrangement with a registered childminder to assist with care for his children. Karen Ashfield did assist from time to time with caring for the children and did this in direct liaison with Mrs Steel. In other words there was some flexibility in arranging childcare and assistance given by Mrs Steel and also by Karen Ashfield at the relevant time. It is therefore correct to record that the applicant did not fully set out in his memo of 20 July 2001 [to which we have referred] to Inspector Cliff the totality of the help and assistance available to him in caring for his children. The applicant was clearly prepared to consider complying with his posting to Oxford on 3 September. He attended there on 3 September and discussed the proposed shifts. His attitude hardened after learning of his wife's unhelpful response to his request for assistance in working the suggested shifts at Oxford."
[11]At paragraph 28 the Tribunal records as follows:
"On 28 September 2001…Pat Peters met with the applicant and Bob Taylor from the Police Federation at the applicant's home. The intention was to discuss the issues and facilitate the applicant's return to work. The applicant reiterated his concerns over travel from Didcot to Oxford and the possibility of unplanned overtime which could jeopardise childcare arrangements. Pat Peters suggested to the applicant that he might return to work at Oxford on light duties subject to approval by Occupational Health, and an attempt made to find a shift pattern which would fit his particular chidcare needs. The meeting was inconclusive and it was not possible to agree a way forward at that stage particularly in the light of the applicant's sickness and the need for advice from Occupational Health as to the suitability of any proposed duties."
[12]He appealed, as part of the Posting Policy Appeals Process, as set out in paragraph 31 of the Decision:
"Under the Grievance Management Policy issues of tenure and posting were excluded from the policy… Accordingly on 10 November 2001…Gerry Parsons the Police Federation Representative dealing with the applicant's case at that stage confirmed on the applicant's behalf by memo to Superintendent Kirby that the matter would not be dealt with as a Stage 3 Grievance but as an appeal against posting in accordance with the Posting Policy Appeals Process… On 13 November the applicant submitted his claim to the Employment Tribunal alleging sex discrimination in relation to the decision of 27 July 2001 made by Chief Inspector Kirby."
[13]The Tribunal summarises the events of the appeal:
"33. By letter dated 27 November…Chief Superintendent Kirby rejected the applicant's posting appeal. That letter was full and took into account: The application of 12 September 2001… Efforts by the personnel staff to accommodate the applicant's needs Representations made during the meeting of 23 November 2001. Tenure of post and posting policies. The prevailing resourcing position in the force, and priorities relating to Oxford. The applicant's previous working pattern including overtime whilst employed on the Dog Section. 34. The letter also confirmed that Chief Superintendent Kirby had taken into account the emphasis placed by the applicant as the "primary carer" for his children as well as other references to his being a "single parent". "
Pertinent to this is also the degree of support you receive from your wife, your child minder, and your new partner you have confirmed to be a co-habitee of your home". The applicant's concerns over travelling were also referred to. Chief Superintendent Kirby revisited the tenure and posting policies and also took into account the steps taken by Oxford Personnel Staff to accommodate the applicant. "Further consideration has been given to the flexible working options made available by Oxford personnel including the facility to work conventional shifts, fixed shifts in custody, reduced hours on full pay as part of a recuperative return to work programme, or part-time duties in the short or long term. You have rejected all of these opportunities and remain uncompromising in your desire to work on Sought Oxfordshire Police Area." The letter concluded "I have reconsidered the organisational requirements with regard to resourcing Oxford and South Oxfordshire Police Areas." He confirmed that Oxford had a greater need than South Oxfordshire for experienced officers and concluded "Therefore, while I recognise that some adjustment to your personal circumstances will be necessary, including the considerable commitment you have to your children's sporting activities, my decision is that your posting to Oxford Police Area will remain." He concluded with a reminder to the applicant formally to notify his personnel manager of the changes to his personal circumstances (that is his separation from his wife and details of his current partner), which information had come to light in the course of the determination of the transfer request."[14]The Tribunal considered the alleged comparators whose position was canvassed in the case before them, two originally put forward by the Applicant and one during the course of the hearing. In very detailed considerations, which have not been the subject of any challenge or criticism, the Tribunal rejected those comparators as being valid comparators suggesting any discrimination, in paragraphs 35 to 41 of the Decision.[15]That left, of course, the question of the hypothetical comparator, and the question in general terms as to whether there was unfavourable treatment of the Applicant by reason of sex. The Tribunal's conclusions are very clear in paragraphs 46 and 47 as follows:
"46. The Tribunal considered in accordance with the guidelines laid down in the case of Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 whether the applicant had proved that on the grounds of his sex he had been treated by the respondent less favourably than the respondent treated or would treat a woman. On the Tribunal's findings of fact there are no direct comparators named by the applicant or referred to in the respondent's reply to the questionnaire who have been treated less favourably than the respondent treated the applicant. Taking into account the guidance given in the case of Chief Constable of West Yorkshire v Vento [2001] IRLR 124 , the Tribunal have considered a hypothetical female comparator. One practical way of considering that question is to observe how unidentical but not wholly dissimilar cases have been treated by the respondent. What is clear from the Tribunal's findings of fact with regard to the direct comparators named, and also with regard to the Officers identified as A, B and C by the respondent, is that in only one case, WPC Phillippa Mills, was a transfer from the area at which the respondent required that officer to work to another area at their request agreed to. Her circumstances were very different in that there were both psychological and performance issues governing that decision. Those were not factors in the applicant's case. The totality of the evidence with regard to comparators indicates to the Tribunal that a hypothetical female comparator in the circumstances identical or very similar to those of the applicant would not have been treated any differently to the applicant. The Tribunal are satisfied that what dictated the respondent's decision in the applicant's case and what would have dictated the respondent's decision in the case of a hypothetica1 female comparator in circumstances identical or very similar to those in which the applicant found himself were organisational reasons, not reasons connected with a comparator' s female sex. 47. Accordingly, on the Tribunal's findings of fact, the applicant has failed to establish a prima facie case from which the Tribunal could conclude in the absence of an adequate explanation that the respondent had discriminated against the applicant on the grounds of his sex. Accordingly the burden of proof does not transfer to the respondent. If the Tribunal are wrong in that decision then on the evidence heard and relying on the Tribunals findings of fact the respondent has in any event given a complete and full explanation as to why the applicant was treated in the way he was by Chief Superintendent Kirby on 27 July 2001 and that reason was not in any way connected with the sex of the applicant. It was suggested by the applicant that the treatment by Mr Kirby was the product of "a culture of discrimination"
. The Tribunal found no evidence whatsoever of any such culture."[16]The Tribunal went on in paragraph 48 and 49 to conclude, unnecessarily in the light of its conclusions to which we have referred, that in any event the Applicant had not proved any material detriment.[17]As is clear, this decision is both logical in its progression and full in its explanation as to its conclusions. There are five grounds of appeal put forward by the Applicant, very ably on his behalf by Mr Horan of Counsel, to which Mr Korn of Counsel has equally ably responded on behalf of the Respondent. Both Counsel appeared below.[18]The first and, as it turns out, principal ground, relied upon by Mr Horan was by reference to the Code of Practice published by the Equal Opportunities Commission, which of course is nationally applicable. There is also in this case a Thames Valley Police Human Resources Equal Opportunities Policy, which was included in the bundle.[19]It is accepted that the national document falls within the provisions of section 56A of the Sex Discrimination Act 1975 . That section reads as follows:
"56A Codes of practice (1) The Commission may issue codes of practice containing such practical guidance as the Commission think fit… … (2) When the Commission propose to issue a code of practice, they shall prepare and publish a draft of that code… … (10) A failure on the part of any person to observe any provision of a code of practice shall not of itself render him liable to any proceedings; but in any proceedings under this Act … before an employment tribunal any code of practice issued under this section shall be admissible in evidence, and if any provision of such a code appears to the tribunal to be relevant to any question arising in the proceedings it shall betaken into account in determining that question."
[20]Although the section only requires express consideration as provided by section 56A in relation to the Equal Opportunities Commission Code, Mr Horan refers to the guidance given by Judge Ansell, in the judgment of this Appeal Tribunal in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332 , at paragraph 25. Judge Ansell there said, in sub-paragraph 7:
"…the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining such facts pursuant to s.56A (10) SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice."
[21]Mr Horan submitted that that covered both the Equal Opportunities Commission Code and the employer's code. Mr Korn did not specifically argue to the contrary.[22]We are satisfied that the Tribunal knew of its obligation in respect of section 56A. At paragraph 2 of the Decision the Tribunal referred to the fact that it had considered both the Equal Opportunities Commission Code of Practice and the Respondent's own code.[23]Further, at paragraph 13 of the Decision the Tribunal records an earlier decision that it had made during the hearing in relation to the extent and scope of cross-examination of witnesses. The Tribunal in terms incorporates such earlier decision into its Reasons at paragraph 13. 3 of the Decision:
"Mr Horan's wish to explore in general terms the scope and extent to which there may have been a culture of discrimination within the respondent is not directly relevant to determination of that issue. It is right that he may well make submissions at the conclusion of the case after all the evidence has been heard that Tribunal should draw inferences both in accordance with the provisions of section 74 (2) (b) of the Sex Discrimination Act [to which we shall refer] from evasive or equivocal reply to a questionnaire and further in taking into account the compliance with, or lack of compliance, with any provisions in a relevant code of practice pursuant to Section [56A] (10). Clearly it is the Tribunal's obligation to consider those points in their overall consideration of the evidence."
Then, at paragraph 13. 5 it records as follows:
"For clarity, the Tribunal confirm that the applicant may put direct questions to the respondent's witnesses as to whether they individually have been involved in sex discrimination claims against the respondent in which findings of discrimination have been made against them and/or the respondent… In addition the applicant may put questions that relate directly to the central issue to be determined in this case as already defined so far as that relates to alleged failure to comply with any relevant code of practice."
[24]Mr Horan does not accept that those passages indicate that the Tribunal had well in mind its obligation under section 56A because, he submitted to us, they simply reflected and recorded a decision that it had made during the course of the hearing. We are afraid that we are not at all persuaded by that submission. This does not read to us at all like a situation in which the Tribunal has made that earlier decision and then forgotten or buried it and is some way trotting it out as a matter of formality in the course of its Decision. It is quite plain that the Tribunal found it most convenient to record in that way its own clear understanding of its obligations, by reference to section 56A.[25]Be that as it may, in any event there was a specific heading in the Decision, ' The Respondent's Equal Opportunities Policy ', and in paragraph 44 the Tribunal found as follows:
"The applicant argued that the respondents in dealing with his request for transfer as they did failed to take into account the Equal Opportunities in Employment Policy in force in July 2001. It was argued on behalf of the applicant that the respondent had failed to comply with the policy in the way in which the applicant's complaints over his transfer request had been dealt with. Following the decision made by Chief Superintendent Kirby on 27 July 2001 the letter of 12 September from the applicant was treated by Chief Superintendent Kirby as an appeal against his refusal to agree to the applicant's request to be transferred to the South Oxfordshire areas and it was agreed on behalf of the applicant by his Police Federation Representative Gerry Parsons…that the matter would be dealt with not as a stage 3 grievance procedure but as an appeal against posting. The Posting Policy was clearly linked to the Equal Opportunities in Employment Policy at paragraph 2.3… Chief Superintendent Kirby was aware of the Sex Discrimination Claim by 23 November, the appeal Hearing. He considered, correctly in the Tribunal's view, that if the posting issues were resolved the Sex Discrimination claim would fall away. The fact that the appeal against the decision of Chief Inspector Kirby of 27 July (which is the substantive allegation of sex discrimination), was dealt with through the posting policy was as a matter of procedural consistency by the respondent who, the Tribunal accept, dealt with all appeals against decisions with regard to posting in the same way."
[26]Mr Horan has drawn our attention to his Skeleton Argument below. He has been, to an extent, handicapped by the fact that he and those instructing him have not sought either any notes of evidence, or to operate paragraph 7 of the Practice Direction, in order to get before this Appeal Tribunal any agreed notes of what occurred before the Tribunal. He tells me that there was originally a plan to initiate the procedure under paragraph 7, but it was not pursued. The result is that we are not in any position to explore what evidence was in fact given before the Tribunal, and it is clear that in any event both sides have a different view about what occurred in the material respects in relation to those matters which Mr Horan would seek to rely on. In any event, we are entirely satisfied that the matters to which Mr Horan would wish to draw attention would not have made any difference to the outcome of this appeal. At paragraph 9.1 of his skeleton submissions below he set out a suggestion that Mr Kirby in cross-examination had had no answer to a case put to him that in certain respects the Equal Opportunities Commission's Code of Practice and the Respondent's own code had not been followed. Certain paragraphs of those codes are there referred to. He sought to invite the Tribunal to draw an inference that the Respondent had, as it was put in such skeleton, "purposely" ignored the procedure.[27]In his skeleton before us he has identified the respects in which he alleged then and alleges now that there were breaches of those codes. They are as follows:(1) He submits that there was, by reference to the Equal Opportunities Commission Code, inadequate publication of the Respondent's Equal Opportunities Policy;(2) He alleges that there was insufficient flexibility in relation to the consideration of ways of approaching the Applicant's case;(3) He criticises and criticised the lack of clarity as to who precisely was responsible for the operation of the Equal Opportunities Policy;(4) He alleged that there was no operation of the grievance procedure;(5) He alleged that there was non-compliance with the operation, suggested under the Respondent's own policies, of monitoring; and(6) Finally, once again by reference to the Respondent's own policy, there did not appear to have been any involvement in this case of any Equal Opportunities Officer or Equal Opportunities Advisers.[28]The Tribunal plainly did deal with the criticism in relation to grievance procedure. We have read paragraph 44 of the Tribunal's Decision, in which it is plain that the Tribunal was specifically addressing the point made by Mr Horan that the grievance procedure ought to have been followed, and that there was in some way some element of discrimination in operating the Posting Policy rather than the grievance procedure; and it is plain that in round terms the Tribunal accepts the case made by the Respondent in that regard in a number of different respects, which are there carefully set out.[29]But it is right to say that the Tribunal does not specifically refer to any of the other five points which Mr Horan has specified, two of which (the question of publicity and the question of flexibility) arise out of the Equal Opportunities Commission Code, which is on any basis plainly within section 56A of the Act, and the other three of which relate to the question of operation of the Respondent's own code which, if not within section 56A, may come within the guidance of Judge Ansell in Barton .[30]Mr Horan submits that this failure to address in the Decision the particular provisions of the codes, to conclude whether there were any breaches of them, and to address whether any inferences of discrimination should be drawn from the consideration of those breaches, invalidates the Tribunal's conclusion. It invalidates its conclusion because consideration of such codes is required. They are part of the factual context, and he relies on the case of Anya v University of Oxford [2001] ICR 847 to say that all the relevant factual context must be considered, and all relevant inferences must be either drawn or not drawn, before a Tribunal has done its job properly. He submits that it would not be sufficient for us to remit that to the same Tribunal for it to answer the question as to whether it concluded that there were breaches, and what inferences, if any, it drew from those breaches, and whether any such inferences affected the conclusions it otherwise made, because that would not be a fair result;(a) it would in fact amount to a closing of the door after the horse has bolted, being an invitation to the Tribunal almost certainly to confirm the decision it has already made, and(b) he submits – he used a frying pan on one occasion and a melting pot on the another – but that it is appropriate for all factors to be put into whatever receptacle is appropriate, all at the same time, in order for a Tribunal properly to do its job.[31]It was important at that relatively early stage in the development of jurisprudence, with Tribunals dealing with race, sex and disability discrimination at the same time as so many other jurisdictions, for the Court of Appeal to lay down guidance, following the reminders to tribunals and employers, in Glasgow City Council v Zafar [1998] ICR 120 given by the House of Lords, itself ratifying earlier views expressed by the Court of Appeal in King v Great Britain-China Centre [1992] ICR 516 , of the difficulty and sensitivity of decision-making in the discrimination field. We, as judges, and of course particularly employment tribunals, as the industrial jury, have been reminded that it is not an easy task to pick out and identify discrimination. It will become the more difficult as we all have to cope with more kinds of discrimination, in the various cases which will come before the court, in respect of evidence given by perfectly genuine and well-intentioned people in most cases, who very often genuinely do not appreciate that they are discriminating and are very surprised if they are told they have been doing so. It is in those circumstances the more necessary for a tribunal to be careful in the making of its decision.[32]Thus, although of course in every case it is necessary to give reasons, as has been made entirely clear and emphasised in the recent Court of Appeal decision in English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 , [2003] IRLR 710 , repeating, without specific cross-reference, what has been well-known and well accepted in the employment tribunal sphere since the leading authority of Meek v City of Birmingham District Council [1987] IRLR 250 , it is the more important that the clarity of reasoning should be manifest in a discrimination case.[33]This is not because a tribunal needs to be any better judge or jury in a discrimination case than in any other case, but simply because a tribunal needs perhaps to be the more careful to show its workings in a case where it may be suggested that there has been difficulty in isolating where discrimination lies. However:(1) We accept what Mr Korn has said to us, namely that this need is of particular importance in relation to cases, such as Anya was, and such as was Qureshi v Victoria University of Manchester [2001] ICR 863 (n), which is the extremely helpful decision of Mummery P, which was expressly approved in Anya , in which discrimination was required to be spelt out, if it was to be spelt out (of course in the case of Anya in the event when the matter came back to a different tribunal it was not established) from a series of different incidents; so that what might not have seen to be discrimination by reference to one particular incident might be seen to be discrimination by taking it together with other incidents. This case however is one in which it is clear that there was one act and one act alone, which is alleged to have been discriminatory, namely the refusal to transfer the Applicant to South Oxfordshire. Of course it will be necessary, and was necessary, to explore the reasons for that conduct, both objectively and subjectively. But it was not, in those circumstances, a similar case to Qureshi where a whole series of events needed to be analysed.(2) It is, in our judgment, and we here speak as an appellate court, essential that what was required by Anya , as a reminder of the caution that is required in dealing with discrimination, should not become a passport to the undermining of the fundamental principle recently reiterated by the Court of Appeal in Crofton v Yeboah [2002] IRLR 634 , that the Tribunal is the industrial jury which must be the judges of the facts, and that an appellate court such as this Appeal Tribunal can and should only interfere where there has been an error of law; and that, insofar as perversity is an error of law, it is a very restricted area. Thus, what Mr Korn has called "analytical tooth-combing" is not simply discouraged but outlawed in ordinary cases in this Appeal Tribunal as being inconsistent with the appellate jurisdiction. Anya , he submits and we agree, should not be seen as a reintroduction of analytical tooth-picking.[34]What we would wish to emphasise is what it is which Anya does require. In approving the dicta of Mummery P in Qureshi in paragraph 9 of Anya , Sedley LJ quoted Mummery P in this regard:
"As frequently observed in race discrimination cases, the applicant is often faced with the difficulty of discharging the burden of proof in the absence of direct evidence on the issue of racial grounds for the alleged discriminatory actions and decisions. The Applicant faces special difficulties in a case of alleged institutional discrimination which, if it exists, may be inadvertent and unintentional. The Tribunal must consider the direct oral and documentary evidence available, including the answers to the statutory questionnaire. It must also consider what inferences may be drawn from all the primary facts. Those primary facts may include not only the acts which form the subject matter of the complaint but also other acts alleged by the applicant to constitute evidence pointing to a racial ground for the alleged discriminatory act or decision. It is this aspect of the evidence in race relations cases that seems to cause the greatest difficulties. Circumstantial evidence presents a serious practical problem for the Tribunal of fact. How can it be kept within reasonable limits?"
At paragraph 25 of the judgment Sedley LJ says this:
"…it is the job of the Tribunal of first instance not simply to set out the relevant evidential issues, as this Industrial Tribunal conscientiously and lucidly did, but to follow them through to a reasoned conclusion except to the extent that they become otiose; and if they do become otiose, the Tribunal needs to say why."
[35]Mr Korn drew our attention to the decision in Miriki v Bar Council [2002] ICR 505 . In that case Peter Gibson LJ said at paragraph 46:
"Each case must be decided in the light of its own particular circumstances. It cannot be right that in every case the tribunal must make express findings on every piece of circumstantial evidence, however peripheral, merely because the applicant chooses to make it the subject of complaint."
That plainly emphasises that it is for the tribunal to decide what evidence is relevant or material, not Counsel making the submissions to it.[36]Mr Korn also drew our attention to Charles J's decision in the Employment Appeal Tribunal in McDonald v London Borough of Ealing (EAT/406/99), in which it is clear that Charles J (at paragraph 33) did not consider it necessary, where there was an allegation of breach of a code of practice, for the provisions of the code of practice to be expressly referred to in the Tribunal's Reasons, if, as he put it, none of them pointed to a different conclusion or approach to that reached and taken by the Employment Tribunal.[37]We turn to the most indicative authorities to which Mr Korn referred. First was High Table Ltd v Horst [1997] IRLR 51, in which the Court of Appeal, again per Peter Gibson LJ, said, at paragraph 24, in relation to an allegation that the reasons given by the Tribunal were inadequate, the following:
"…in considering whether the reasons given by an [employment] tribunal comply with its statutory obligation, it is very important to keep in mind the issues which the … tribunal was dealing with. It has, of course, to reach conclusions on the issues which the statute raises, viz, in the present case, have the employers established that the reason for the dismissals was redundancy and, if so, did they act reasonably in treating the redundancy as a sufficient reason for dismissing the employees? But whilst it must consider all that is relevant it need only deal with the points which were seen to be in controversy relating to those issues, and then only with the principal important controversial points…"
[38]Mr Horan submits that that would not apply in relation to cases of discrimination in the light of Anya . But it is clear from the case of Wheeler v Durham County Council , which is a sex discrimination case, [2001] EWCA Civ 844 (unreported), that Lord Phillips MR applied that proposition expressly in a discrimination case where he said as follows:
"53 … The Employment Appeal Tribunal held that the Employment Tribunal had erred in law in that, having found that a number of events occurred in the course of the selection process, it failed to inquire into the details of precisely why those events had occurred. But, notwithstanding this failure, it proceeded to conclude in the case of each event, that the event did not give rise to any inference of sex discrimination." 54. In Anya v University of Oxford [2001] EWCA Civ 405 , the Court of Appeal held that an Employment Tribunal must make conclusions on the factual issues essential to its conclusion. It does not follow, however, that an Employment Tribunal has to explore the circumstances of every event in the evidence placed before it. It only has to reach conclusions on the essential issues."
He concluded: 56 "I do not consider that the tribunal left unresolved any factual issue essential to its conclusion."[39]Morison P in Goodwin v Patent Office [1999] IRLR 4 , to which Mr Horan referred, (a disability discrimination case) expressly emphasised the importance of express reference to guidance and to codes. But he did so for the purpose of what was described, in paragraph 23, as "at least during the early period of the Act's operation": and it is implicit that as employment tribunals have become more familiar and comfortable with the operation of these procedures, express reference to particular provisions becomes less significant.[40]We do not conclude that there is any need in every case for spelling out, by reference to every paragraph of a relevant code, a conclusion as to whether there has been breach, and whether there is an inference to be drawn one way or the other from that breach, where a tribunal does not conclude that such breach or such inference is central, or essential, or significant to its conclusion, or at any rate where an appeal court, on looking at the matter, does not so conclude.[41]It is plain here that the Tribunal did conclude that the issue raised by Mr Horan as to whether the adoption of the posting appeal process rather than the grievance procedure could amount to discriminatory treatment was necessary to be considered, if only to be rejected, as it did. But it is quite apparent to us that the Tribunal, with its obligation to consider any relevant codes of practice, and any relevant breaches, well in mind, because it reminded itself of that obligation in paragraph 13, did not consider it necessary to address the points raised by Mr Horan in relation to publication of the scheme, or availability of equality officers, or monitoring. Insofar as there was a requirement to consider flexibly alternative methods of treatment of a complainant, the Tribunal was entirely clear, as is set out in the Decision (the relevant parts of which we have read), that the Respondent, in its view, did treat the request by the Applicant sufficiently flexibly, and that the alternatives that were being offered by the Oxford station, in an attempt to accommodate the Applicant's requirements short of giving him exactly what he required, were sufficient.[42]In an ideal world, in which Tribunals were to give even longer decisions than the 23-page decision here, it might be appropriate for every such code which is said to be relevant, and every provision of that code said by Counsel to have been breached and said by Counsel or advocate to have an adverse inference capable of being drawn, should indeed be spelt out. There will be cases in which such is necessary. But we are entirely satisfied that in relation to this case, where the complaint related to the refusal in July/early August of a transfer, this Tribunal gave every consideration to every relevant fact, and that it did not need to spell out specific reference to the particular provisions of the code or codes of practice.[43]That was, as we have indicated, the main plank of Mr Horan's appeal. The other matters were less cogent, and we shall deal with them much more shortly. First, he complained that the Tribunal did not deal adequately, notwithstanding its duty, under section 74 of the Sex Discrimination Act 1975 , with inferences to be drawn from failures to comply with a questionnaire served in this case on the Respondent. Section 74 (2) reads as follows:
"(2) Where the person aggrieved questions the respondent… (a) the question, and any reply by the respondent…shall, subject to the following provisions of this section, be admissible as evidence in the proceedings; (b) if it appears to the court or tribunal that the respondent deliberately, and without reasonable excuse, omitted to reply within a reasonable period or that his reply is evasive or equivocal, the court or tribunal may draw any inference from that fact that it considers it just and equitable to draw, including an inference that he committed an unlawful act."
[44]Once again, Judge Ansell in Barton at paragraph 25 refers to this obligation of a Tribunal in sub-paragraph (6) as follows:
"These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s.74(2)(b) of the Sex Discrimination Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within s.74(2)."
[45]The Tribunal expressly addressed this question in paragraphs 42 and 43 of its Decision; and it is plain that it understood full well the submission that was made by Mr Horan, setting out at paragraph 42 the fact that:
"There was extensive cross-examination of Chief Superintendent Kirby as to [why] it had taken the Respondents some 21 months to deal with the questionnaire. The suggestion put on behalf of the applicant was that the delay in replying was a deliberate attempt to frustrate the applicant in pursuing his claim and that the Tribunal should draw inferences, including an inference that the respondent committed an unlawful act, pursuant to Section 74(2)(b) of the Sex Discrimination Act 1975."
The Tribunal addresses the question of delay, which it found to have been unacceptable, and for which it noted Chief Superintendent Kirby's apology, and explanation such as it was, and it also addressed the fact that some of the responses were clearly evasive or equivocal.[46]However, notwithstanding the submission which once again the Tribunal repeats at the end of paragraph 42, made by Mr Horan, that the Tribunal should draw the inference that the Respondent was guilty of discrimination, in paragraph 43 the Tribunal resolutely declines to do so. What appears to have been most determinative in the Tribunal's mind was the fact that, when this belated questionnaire did come forward, it dealt fully and adequately with the question which was, in essence, the most significant matter, of the existence of comparators; and indeed says so at paragraph 43:
"The evidence most relevant to the determination of the issues in this case is the existence of any relevant comparators."
As we have indicated earlier in the Decision, the Tribunal had, as it repeats in paragraph 43, after considerable analysis, found that there was nothing favourable to the Applicant to be found in any consideration of the comparators, details of whom were addressed belatedly in the questionnaire.[47]The Tribunal also noted that having considered the questionnaire, and notwithstanding certain of the responses being evasive or equivocal, it was satisfied not only that there was nothing in the questionnaire from which any inference could be drawn, but that in the light of the other evidence, including the corroborative evidence as to the need for extra policing in Oxford, there was no call to draw an inference from what it called the delay and limited response to the questionnaire, concluding at paragraph 43, as indeed it does in relation to the other issues raised:
"There is no evidence that at or about the time of Chief Superintendent's Kirby's decision of 27 July 2001 the respondent would have treated a woman in the same or virtually identical circumstances to the applicant in a more favourable way."
[48]In essence what Mr Horan says is not that there was a failure by the Tribunal to address its obligation under section 74 but either that the conclusion was perverse or that there was inadequate reasoning for its conclusion. We reject both submissions.[49]The third way in which Mr Horan put the appeal was built upon his submission, with which we have dealt, specifically made by reference to the Tribunal's failure to mention expressly the provisions of the codes of practice; reminding us that the code of practice was simply evidence, and then seeking to add to such failure to mention, or draw inferences from, that particular piece of evidence, other pieces of evidence on which the Tribunal did not make, as he submits, any finding or the finding it ought to have made, either by way of primary fact finding or by way of inference drawing.[50]It is in this area in which there is the real risk that this kind of argument will descend into a way round the bar on nit-picking and second cherry-biting which is enshrined in Crofton v Yeboah . The six points that are made are:(1) There was no consideration, or no adequate consideration, by the Tribunal of the submission that he had made in paragraph 8 of his Skeleton Argument that a statement made by Mr Kirby in his evidence was in direct conflict with an answer made in the questionnaire in relation to who was responsible for discrimination and equal opportunities matters. This is an area where the absence of notes of evidence is a problem for Mr Horan, but we suspect that even with the notes of precisely what Mr Kirby said in cross-examination this point would not have in fact been strengthened. Mr Korn does not accept that there was any inconsistency between the oral evidence that Mr Kirby gave and the answer to the questionnaire, and we are certainly wholly unable to see this as anything other than the Tribunal not considering itself at all persuaded by a point that Counsel was making, and that will not be the first time in the long history of litigation that such will have occurred.(2) The second point that Mr Horan made is, as we have indicated, to refer to and rely upon the failure to refer to or draw inferences from the alleged breaches of the code in certain respects. We have already made our findings in relation to that, and Mr Korn reminds us that the discriminatory act relied upon is the refusal at the end of July/beginning of August, whereas most if not all of the alleged breaches of codes, if relevant at all, relate to what occurred thereafter.(3) Mr Horan complains that there is no reference to the fact that the Respondent's own code of practice was not disclosed by the Respondent, and therefore was presumably not thought to be relevant, but rather was produced at the outset of the hearing by the Applicant himself. He points to the fact that there is no reference to this in the Tribunal as part of a flaw in the fact-finding process by the Tribunal. We are entirely unpersuaded that that is of any significance and at the moment we still cannot see, despite his eloquence, what inference should have been drawn against the Respondent in this regard. The Respondent was not seeking to say that it had at all times had in mind a procedure and had acted in accordance with it, such that it could have been inferred that, in some way in order to avoid disclosure that it had not done so, it was then trying to conceal the code; rather it was asserting, and the Tribunal was finding, that it followed a different process, and that once such process was tested against the background of the procedure it asserted that it had in fact substantially complied with it and had certainly not acted in a discriminatory way, and that is a finding which the Tribunal made in paragraph 44 of its Decision.(4) Mr Horan refers to a handwritten note made at the bottom of a memo dated 26 July 2001 which Mr Horan submits the Tribunal ought to have found was sexist. It is quite plain in both paragraphs 17 and 24 of the Tribunal's decision, both of which paragraphs we have already recited in the course of this judgment, that the Tribunal appreciated, and rejected, the submission made by Mr Horan to that effect.(5) The fifth point was that Mr Kirby made an incorrect statement in a report to the Chief Constable dated 5 December 2002 in his account of events, by recording that the application for discrimination to the Employment Tribunal post-dated, rather than antedated, the posting appeal. This appears to us to be a wholly unimportant point and one which the Tribunal was entirely entitled, no doubt after taking in what Mr Horan said, to disregard and not mention itself.(6) The sixth point he made, as to reliance on Mr Kirby's credibility, was again unpersuasive. The Tribunal did not make a finding in terms that Chief Inspector Kirby was an entirely credible witness. Had it done so, it would have needed to have borne in mind the strictures of Sedley LJ in Anya at paragraph 25, that credibility itself was not necessarily the end of the road:
"a witness may be credible, honest and mistaken and never more so than when his evidence concerns things of which he himself may not be conscious"
. In essence, the Tribunal was not in any way hinging its findings here on the credibility in relation to disputed issues of fact of Chief Superintendent Kirby. It was assessing, with the benefit of other corroborative evidence, as Mr Korn has reminded us, whether there were in fact other grounds for refusing the transfer, after taking into account the circumstances of the Applicant, and there is no sign at all that the Tribunal simply rested its decision on the credibility alone of Chief Inspector Kirby, when assessing the question as to whether there was in fact unfavourable treatment on grounds of sex or whether in fact the Applicant was dealt with in any way differently than would have been a woman.[51]That leads the fourth and fifth grounds upon which Mr Horan relied. The fourth he did not pursue, namely the question of burden of proof. He accepted that, even though he would have sought to submit that the Tribunal was wrong to say that the evidence was such that the burden did not transfer to the Respondent, he accepted that in fact, as we have recited from the Tribunal's Decision, the Tribunal also found that had the onus transferred it would have been satisfied that the Respondent had satisfied that onus; and he thus did not pursue his ground in that regard.[52]Finally there is the question of detriment. The Tribunal concluded that there was not a detriment to the Applicant because in essence (paragraph 48) "an unjustified sense of grievance cannot amount to a detriment." This is by reference to a quotation from Lord Hope in Shamoon v Chief Constable of RUC [2003] IRLR 285 . It concluded, in paragraph 49 that the Applicant was not reasonable in his perception that he was disadvantaged:
"His perception of a disadvantage must be a reasonable one."
[53]It is plain to us that this appeal does not depend upon this finding, because, in the light of our conclusion that there is no basis upon which the Applicant can challenge the finding by the Tribunal that there was no less favourable treatment on the grounds of sex, this issue does not arise, and Mr Horan's success on it could not assist him. But it is perhaps some comfort for him to hear that we agree with his proposition in this regard, that the Tribunal was wrong to conclude that there was no disadvantage to the Applicant simply because it was the loss of preferential treatment for which he had over-optimistically hoped. That in itself, in our judgment, is a disadvantage; and, in our judgment, what Lord Hope meant was that an unjustified sense of grievance of itself would not be sufficient, but that if there is something more than a sense of grievance, such as a loss of a hoped for benefit, then that could amount to a detriment, provided it is, as Peter Gibson LJ said in Jiad v Byford [2003] IRLR 232 , material and substantial.[54]We would agree with Mr Horan that if in fact the Applicant had succeeded on the grounds of unfavourable treatment then there would have been a detriment. But we entirely accept what Mr Korn submitted, namely that the reality here is that the Tribunal had concluded that there was no less favourable or unfavourable treatment. In those circumstances, it did not regard the Applicant as having justifiably conceived that he had lost anything as a result of any actionable conduct by the Respondent. That is the substance of this Decision.[55]In those circumstances this appeal is dismissed.