MR ALLAN DATTANI v THE CHIEF CONSTABLE OF WEST MERCIA POLICE [2005] UKEAT 0385_04_0702

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2005] UKEAT 0385_04_0702

Case No Appeal No. UKEAT/0385/04

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR ALLAN DATTANIAPPELLANT

THE CHIEF CONSTABLE OF WEST MERCIA POLICERESPONDENT

Before

His Honour Judge McMullen

Date 7 February 2005

[1]APPEARANCES For the Appellant MS H GOWER (Of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors Landore Street Cardiff CF10 2GD For the Respondent MS D ROMNEY (Of Counsel) Instructed by: Messrs Dolmans Solcitors 17-21 Wiondsor Place Cardiff CF10 3DS SUMMARY(1) ET erred when, in considering whether C had made out a prima facie case of race discrimination, it paid attention at that stage to evidence and explanations of the… R. Sinclair Roche & Temperley

[2004] IRLR 763

EAT applied.

(2) Inferences may be drawn under RRA 1976 Section 65 from material given by a respondent in response to a statutory questionnaire, or otherwise, including a Response and additional information. HIS HONOUR JUDGE McMULLEN QC This case is about the effect of the change in the burden of proof in dealing with a claim of race discrimination. It also raises the issue of perversity.

[2]The judgment represents the views of all three members who pre read most of the papers. We will refer to the parties in the language of the Employment Tribunal Regulations 2004 as Claimant and Respondent. Introduction

[3]It is an appeal by the Claimant in those proceedings against the judgment of an Employment Tribunal sitting on twelve days at Cardiff, Chairman Mr P Davies, registered with Extended Reasons on 9 March 2004. The Claimant and Respondent were represented there and here by Ms Helen Gower and Ms Daphne Romney respectively. After the close of the evidence both Counsel made oral submissions in accordance with extremely detailed written submissions. The Tribunal gave an oral decision and reasons after hearing those submissions. The Reasons extend to twenty-three pages and they would have benefited from a careful proof reading prior to there being registered. There are many small errors, which Ms Romney engagingly says are too numerous to be worth our time in correcting them (including although she does not say so, getting her name wrong). However, we will use our power of correction under Employment Tribunals Act Section 35 by agreement with both Counsel to correct the finding at paragraph 10 so as to read as follows:

"The applicant is Indian by descent, that is his ethnic group. He was and is the only minority ethnic police officer in the Division."

The other errors, while a distraction, are not serious.

[4]The Claimant made claims under the Race Relations Act 1976 of victimisation and unlawful race discrimination, the latter taking a number of forms including a complaint about his transfer from one Police Station to another. The Respondent denied the claims and contended it transferred him on the basis of an objective criterion which he was the only officer to fulfil. The matters about which the Claimant complained took place up to and during 2000. His principal complaint, the sole issue on appeal, related to a decision to transfer him from Hereford City Police Station to Ross-on-Wye Police Station on 22 September 2000. His claim to the Tribunal was presented on 3 November 2000. For reasons which have been explained to us, including the need to await the judgment of the Court of Appeal in Chief Constable of Bedfordshire Police v Liversidge

[2003] ICR 88

, no point is taken about the delay of 3½ years between the transfer complained of and the judgment of the Tribunal.

[5]A summary of the issue which survives on appeal can be found in paragraphs 1-2 of the Tribunal's uncorrected reasons:

"1 By an Originating Application dated 3 November 2000 the applicant, Mr Allan Dattani, complains of Unlawful Discrimination Race Relations 1976. After setting out a history of being with the Respondents, West Mercia Constabulary, the Originating Application says that on 25 October 2000 he was transferred from Hereford Police Station to Ross on Wye Police Station. He says, "

On questioning why, and the duration of this transfer I was informed that I performed by duties as a supervisor in a competent, diligent and meticulous manner. The transfer was to be a permanent one. I have never applied for this transfer nor any other. On scrutinizing the circumstances it is clear that there are other officers similar in rank, with similar or more skills, less service, same length of service and more service as well. None of these was subjected to this enforced transfer. I believe this transfer and the given reasons for it is highly discrimatory and clearly breach the Race Relations Act 1976". 2 The Notice of Appearance in the case, entered on behalf of the West Mercia Police Authority and four named police officers Respondents says:

"That as part of the restructuring the Hereford command team carefully considered the roles, experience and qualities of all the Herefordshire sergeants. They decided that the applicant and PS Payne (a white officer) should fill the vacancies at Ross. In each case it was felt that the officer had the qualities to provide drive and energy to the Ross team. Neither had worked outside Hereford city during the service. The applicant's appointment was permanent and PS Payne's was temporary to cover for PS Thomas"

. The Notice of Appearance then refers to the transfer of three further white officers two into Hereford and one to Leominster. IT is denied that there has been any discrimination of the ground of race against the applicant."

[6]The Tribunal decided to accept the explanations of the Respondent for the transfer of the Claimant. It also dismissed a number of other complaints. The Claimant appealed against the decision on the transfer issue and on victimisation. At a Preliminary Hearing conducted by His Honour Judge Ansell and members, the victimisation ground of appeal was dismissed. As part of his claim on the transfer issue, the Claimant relied on a number of other matters. The Tribunal's dismissal of these matters covers the first twelve pages of the judgment and are no longer in issue. The facts

[7]The Claimant's chronology for the purposes of the appeal extends to three pages and contains over 70 entries. The skeleton argument runs to twenty pages. The Respondent's skeleton argument is the same. But the point is really a short one: Why was the Applicant selected against his will for a transfer?

[8]The principal actors in this drama, apart from the Claimant, are Sergeant Payne who was transferred to Ross on a temporary rather than on a permanent basis, and Sergeant Powell who had previous services as a Constable in the Metropolitan Police. Both are white and comparators. Responsibility for the decision to transfer the Claimant lay with the triumvirate we will refer to as the Chief Inspectors ie Messrs Howard Harcombe and Scott. Superintendent Molloy and Ms Drinkwater, a Personnel Officer, investigated the Claimant's complaint and made a report, drafts of which were presented to the Tribunal as well as a final version. The drafts are important. Lynne Edwards and Sergeant Nash were white officers also transferred who briefly came into the picture but the Tribunal made no finding about their transfers or about their comparability to the Claimant's.

[9]The Tribunal made the following findings about the parties:

"7 The applicant, who has a background of service in the Armed Forces, became a police constable with the respondents in July 1985. He was based at Hereford city police station and remained there until the events with which the Tribunal are concerned. In 1991 he received a commendation for dedication to his service. He was involved in Operation to Bumblebee in 1994. He became an acting sergeant in 1997. He was promoted to the permanent post of sergeant in May of 1998. There is an agreed chronology of events which it is not necessary to refer to in detail although certain matters set out will be considered further in this decision."

It went on to record the considerable favourable reports made on behalf of the Respondent about the Claimant's record.

[10]As to the Respondent the Tribunal described it as follows:

"10 The respondents, the West Mercia Constabulary, have about 1,950 police officers. The Constabulary is divided into divisions. Division E is the Hereford Division. That encompasses not only Hereford City Police Station and centre but also there are section stations at Leominster, Ross-on-Wye, Ledbury, which are much smaller than Hereford. The statistics concerning Herefordshire and the Division are set out at page 325 of the bundle. These are statistics headed 'Stop Search Data' but they give some general statistics as well. For the year April 1999 to March 2000 Hereford E Division had a white population of 153,952 individuals; Asian 263; black 216; and others 420. In the period 1 April 2000 to 31 March 2001 – which is page 325a – the population is shown as follows for Hereford E Division: 166,608 white; 284 Asian; 234 black; 455 others. It can be seen therefore that this Division has a very small number of ethnic minority living within it. The applicant is Indian by decent, that is his ethnic group. He was and is the only ethnic minority police officer in the Division."

[11]As to the transfer issue the Tribunal found this:

"31 In September 2000 the applicant was not expected to be moved from being based at Hereford Police Station. His personal expectation was that he would go into the custody section at Hereford Police Station. We find that on 18 September that there was a meeting between Supt Rutter, temporary Chief Inspector Harcombe, acting Chief Inspector Scott, and the substantive position as it was the permanent Chief Inspector Howard. At the end of a meeting Supt Rutter asked what about the sergeants, regarding part of this major re-structuring exercise and told the three chief inspectors to get on with it. We find that there was no discussion about how this was going to be done by Supt Rutter at that time. Mrs Nash, who is the Divisional Personnel Officer, and who gave evidence to the Tribunal, said that she was called in at the end of that exercise of restructuring of sergeants but may well have said to Chief Inspector Harcombe at the commencement of that exercise to bear in mind the service not outside Hereford. There was no policy written regarding the transfer of sergeants from Hereford Police Station to Section stations at that time. The process adopted by the Chief Inspectors was to use Post-it documents, put them on a white board in the way in which a reconstruction was made by Chief Inspector Harcombe in photographs put before the Tribunal to establish first of all that they had the thirty-nine sergeants who were the relevant sergeants at that time to ensure that no one was missed. There was a conscious decision we find on the part of the chief inspectors not to refer to any development reviews or appraisals or any other personal information because, amongst other things, some records would not exist for officers or other records would be so out of date as to be of no particular value. The exercise lasted for about one hour. Chief Inspector Howard had limited knowledge of the personnel because of his involvement at that time but acting Chief Inspector Scott, concerned with the CID or CMU management unit at the police station, did know of the background of many of the officers as did temporary Chief Inspector Harcombe. 32 Chief Inspector Harcombe said that a number of officers then went down from thirty-nine to eleven. That was because there had been no need to consider the Crime Management Unit changes because there had been a restructuring in relation to that and that was a matter that had been settled. The number went down to eleven and then others were excluded on a number of grounds and the last two left was the applicant and sergeant Tim Powell. At this time skills and roles and experienced were not considered, Chief Inspector said, until the end of the exercise. Sergeant Payne was one of the thirty-nine but he was what Chief Inspector Harcombe called a "given", namely that his future had been decided in November 1999 in relation to the change with Sergeant Thomas. Chief Inspector Harcombe said that the Further and Better Particulars statement was not correct regarding the process, that the service outside Hereford, he said, was the criteria from the start. Chief Inspector Harcombe had never undertaken before this a major restructuring exercise. …That evidence is entirely consistent with the objective information before the Tribunal how superior officers were regarding the applicant and his initiatives and attitude in relation to matters which were proceeding at that time."

[12]The Tribunal noted that there had been no request from volunteers in respect of the transfers. The Claimant had not worked at all outside Hereford.

[13]What became known as the "Post-it exercise" was conducted on 18 September and the Claimant was informed that he was to transfer on 22 September 2000.

[14]The essential findings of the Tribunal, dismissing the Claimant's complaint, are found in paragraphs 51-53 which it is necessary to cite in full since they are the object of almost all of the criticism made on the Claimant's behalf in this appeal: 51 In this case, we accept the evidence of the three chief inspectors as to the process which was undertaken in relation to the transfer. Whilst we take on board the difference in expression of what was the reason for the transfer it is plain in the documents (page 88) generated by Supt Rutter, the explanations given at the subsequent meetings, the notice of appearance and reference in Further and Better Particulars that the objective criteria of not serving outside Hereford was the reason why the applicant was transferred to Ross-on-Wye. Whilst accepting there are these differences of expression, nevertheless, we come to that conclusion. Not only for that reason but we also come to the conclusion in looking at the reasons why others were not transferred and the evidence in respect of other sergeants. either through personal reasons, illness, already. Set decisions having been made and the service background of the individuals. It is also consistent with the policy in respect of police constables. If this were a criteria which had never been mentioned at any stage or was not consistent with any other policies of the respondents, then indeed there would be some real question marks about whether as the applicant says is the case, which we reject, that this was a criteria adopted purely to justify after the event, the decision to transfer the applicant. In fact it is an objective criteria consistent with all these matters. Unlike the process which the applicant himself was involved him in moving police constables as part of the restructuring where people were consulted for their views and where superior officers consulted police constables, police constables being asked about their views, and expressing them to their senior officers, who would then put forward their views for consideration in restructuring. This did not .happen in the sergeants' restructuring. By the fact that volunteers are specifically referred to as being something which should be considered -all these matters were not undertaken by the respondents. There was no express request for volunteers for transfer before the reorganization of sergeants in September. There was no clear written criteria given to the acting Chief Inspectors by, for example, the personnel section or by the command team or the headquarters having a clear policy, in writing, as there was with police constables, so that there could be little confusion and doubt about the matter. 52 It almost goes without saying that a proper and reasonable approach for an employer to take is to consult about significant changes to people's work place because it does affect domestic arrangements that have to be made and it does affect how people see their role and would like to see their role and would like to see their professional development. The personal views of individuals can in proper circumstances be taken into account in reaching the decision. But the critical question which we have already decided on the evidence and after considering the primary findings of fact and the disputes of evidence taking into account The Code of Practice which we do take into account - as we need to -and the burden of proof looking for explanations from the respondents and whether they are credible explanations, which we do so, is that we do accept the explanations given by the respondents for the transfer of the applicant. 53 There is no evidence in this case that the transfer was on racial grounds or connected with matters of race. We have expressly found as fact that at no time did Supt Rutter in the Stop Search policy indicate that officers should stop more white members of the community or less ethnic members of the community. There is nothing which links anything in relation to that suggestion which we reject as ever having been made by the superintendent to the transfer. There is -accepted by the respondents, quite properly -a lack of proper consultation, communication and we mention in relation to Police Federation involvement as well because one of the recommendations of Supt Molloy was the involvement of UNISON or the Police Federation in such matter and again it is common sense reasons why it is good practice to do so because it avoids people leaping to assumptions. Individuals become involved in giving information which do not accord with the facts such as Mr Hornett and people such as the applicant accepting inaccurate information. This is particularly unfortunate in a case where it is common ground there was a canteen culture of bad mouthing. It is perhaps easy to see how the frustration of the applicant about not having access to clear criteria and the processes led to the situation unfortunately in which the investigation has been left to the Employment Tribunal."

[15]The Tribunal noted that there was a perception among some officers that posting to Ross was not in their interests. While not regarded as a punishment, the work done at a rural police station was not of the same quality as that done in Hereford City. The Tribunal acknowledged that there was an attraction for many to be in a city centre. There is no explicit finding by the Tribunal that the transfer constituted a detriment to the Claimant but the above observations appear to us to be such a finding. Since there was a dispute in this case as to whether there was a detriment, the Tribunal should have made it clear, but for the avoidance of doubt we hold that those findings do constitute a detriment as defined by a phrase Lord Hope adopted in Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

at paragraph 34:

"… A reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work."

The legislation

[16]On appeal, this is a case of direct discrimination to which the Race Relation Acts 1976 applied. Discrimination is defined by Section 1:

"1 Racial discrimination (1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if – (a) on racial grounds he treats that the other less favourably than he treats or would treat other persons;"

[17]It is common ground that the change in the burden of proof introduced into Section 54A by the Race Relation Act 1996 (Amendment) Regulations 2003 was intended to implement Council Directive 2000/43/EC and applies in this case even though the relevant events occurred in 2000:

"54A Burden of proof: employment tribunals … (2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation tht the respondent – (a) has committed such an act of discrimination or harassment against the complainant, or the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act."

[18]When determining whether race discrimination has occurred a Tribunal may draw inferences from certain conduct of the Respondent. A construction point arises in this appeal on Section 65 which provides as follows:

"65 Help for aggrieved persons in obtaining information etc (1) With a view to helping a person ("the person aggrieved") who considers he may have been discriminated against [or subjected to harassment] in contravention of this Act to decide whether to institute proceedings and, if he does so, to formulate and present his case in the most effective manner, the Secretary of State shall by order prescribe – (a) forms by which the person aggrieved may question the respondent on his reasons for doing any relevant act, or on any other matter which is or may be relevant; and (b) forms by which the respondent may if he so wishes reply to any questions. (2) Where the person aggrieved questions the respondent (whether in accordance with an order under subsection (1) or not) – (a) the question, and any help by the respondent (whether in accordance with such an order or not) 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, where the question relates to discrimination on grounds of race or ethnic or national origins, or to harassment, the period of eight weeks beginning with the day on which the question was served on him or that his reply is evasive or equivocal, the court or tribunal may draw any inference from that fact it considers it just and equitable to draw, including an inference that he committed an unlawful act."

Regulations were made by the Secretary of State: Race Relations (Questions and Replies) Order 1977. The short point of construction is: May inferences be drawn from replies given by a Respondent in a form not prescribed by the Order? The Claimant's case

[19]The Tribunal found that the Claimant was selected from a pool of eleven offices all of whom were white except him. He accepts that if the sole criterion for selection was that the officer should not have served outside Hereford, he was the only one to meet that objective criterion. If, however, the criterion was that the officer should not have worked outside Hereford as a Sergeant , Sergeant Powell, who had worked as a Constable in the Metropolitan Police, and was a named comparator by the Claimant, also met that criterion. The Claimant also cited Sergeant Payne. He was temporarily working on transfer as a Sergeant in Ross and should have been part of the pool. There was also evidence in the Molloy/Drinkwater report of another officer unnamed throughout the proceedings. The Tribunal had failed to define precisely the "outside Hereford" criterion as submitted by the Claimant. That was the basis for the Claimant's argument on appeal that the Tribunal had provided insufficient reasons.

[20]It was also contended that the Tribunal's decision had been perverse in the senses that it was contrary to the documentary evidence, and internally inconsistent within the reasons. The evidence showed that the "outside Hereford" condition was not the sole basis for selection but other matters including skills and personal qualities were considered. On that basis, all officers in the pool would be relevant comparators.

[21]The Tribunal failed to apply correctly the burden of proof, for the Tribunal ought to have considered that a prima facie case was made out and so the burden of proof passed to the Respondent. The Tribunal should have considered whether a prima facie case was made without reference to any explanations given by the Respondent.

[22]It was also contended that the Tribunal failed to apply correctly the opportunity given by Section 65 for it to draw adverse inferences from documents other than replies to the statutory questionnaire. The Respondent's case

[23]On behalf of the Respondent it was contended that the Tribunal had correctly applied the relevant authorities in determining whether the burden of proof transferred, and in any event had discharged the burden. The sole basis for selection was the objective "outside Hereford" criterion. It was also contended that the Tribunal did not err in its approach to inferences since there were no relevant inferences to be drawn. As to the complaint that the Tribunal had failed to make key findings of fact, the Tribunal, when considering the "outside Hereford" condition, "had this issue clearly in mind".

[24]As to perversity, the Claimant's case failed to meet the high standard for successful appeals set by the judgment of the Court of Appeal in Crofton v Yeboah

[2002] IRLR 634

. The legal principles

[25]The correct approach to the new burden of proof in sex discrimination was set out in Barton v Investec Henderson Crosthwaite Securities Ltd

[2003] IRLR 332

EAT, HH Judge Ansell and Members. With one adjustment, that was followed in Chamberlin Solicitors v Emokpae

[2004] IRLR 592

EAT which I decided with Members. A further refinement was made in University of Huddersfield v Wolff

[2004] IRLR 534

EAT, Burton P and Members. A synthesis of all these cases was provided in Sinclair Roche & Temperley v Heard

[2004] IRLR 763

, Burton P and Members. The latest formulation, following all of the above and holding them to be correctly decided, appears in Webster v Brunell University

UKEAT/0730/04

EAT, Burton P and Members. That judgment was delivered on 14 December 2004 and Counsel, not having have an opportunity to make submissions on it, we do not found our judgment expressly upon it. In February 2005 we understand the Court of Appeal is to hear appeals against the judgments in Chamberlin , Webster and a further case relied on by Ms Gower, Igen Ltd v Wong

UKEAT/0944/03

EAT which I decided with Members. It is common ground in this case that authorities on the burden of proof in relation to sex discrimination can be read across to apply in the instant case of race discrimination.

[26]Both Counsel rely on the judgment of the EAT, Elias J and Members in Law Society v Bahl

[2003] IRLR 640

as approved by the Court of Appeal particularly at paragraph 100. In Sinclair Roche & Temperley v Heard [2004] IL 763, the President said:

"6 It is apparent that, particularly given the reversal of the burden of proof, it is essential that, if the tribunal satisfies itself that there has been on the face, of it unfavourable treatment,, it has effectively only reached halfway; it must set out clearly its conclusions as to the nature and extent of such unfavourable treatment, and it must then fully and carefully consider, having thus identified the conduct which requires explaining, what the explanations of the employer were, and why, if such be the case, such explanations provide no answer.. The President also cited the judgment of Elias J in Law Society v Bahl [2004] IRLR 640@paragraph 100 when he said: "

Where the alleged discriminator acts unreasonably then a tribunal will want to know why he has acted in that way. If he gives a non-discriminatory explanation, which the tribunal considers to be honestly given, then that is likely to be a full answer to any discrimination claim. It need not be, because it is possible that he is subconsciously influenced by unlawful discriminatory considerations. But again, there should be proper evidence from which such an inference can be drawn…" Conversely, if an employer acts reasonably, the reason is likely to be non-discriminatory – see paragraph 99 of Elias J's judgment.

[27]Both parties rely on the correct approach to the drawing of inferences set out by the Court of Appeal in Anya v University of Oxford

[2001] IRLR 377

particularly paragraph 33.

(D) 380 Pill J said at paragraph 40:

"I am unable to accept that, in all the circumstances where deviations from ordinary practice occur where there are differences of treatment which emerge in the selection process, the employer must invariably give an explanation and the tribunal must find it a satisfactory explanation if it is to fail to infer that the decision was reached in breach of the Act. In my judgment there must be a nexus between the facts relied on and the discrimination complained of before such an explanation can be required. Some conduct of employers will require specific explanation; other conduct or events can be dealt with by way of the general finding which the tribunal made. It is a matter for analysing the facts of the particular case and is a question of fact and degree The facts that a tribunal should examine are those relevant to the issues before it."

[28]Ms Romney for the Respondent relies upon the judgment of the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] IRLR 295

[29]It is noted that in the guidance given in paragraph 25 in Barton there is no citation from Shamoon , although the authority is referred to in the judgment. It is not cited in the judgment in University of Huddersfield nor in Sinclair Roche and Temperley . The insertion into the Sex Discrimination Acts 1975 Section 63(a) of a reverse burden of proof with effect from 12 October 2001 was not the subject of any discussion in Shamoon as the hearing before the Industrial Tribunal in Northern Ireland took place prior to that. In the light of the foregoing, and in the shadow of a forthcoming hearing before the Court of Appeal we do not propose to add further to the substance of the above judgments and will follow the law as set out in Sinclair Roche as follows:

"10 The general structure required for a discrimination finding by an employment tribunal is now clear from the decisions of Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332 , as supplemented by the decisions in University of Huddersfield v Wolff [2004] IRLR 534 EAT/0596/02, and Chamberlin Solicitors v Emokpae [2004] IRLR 592 EAT/0989/03 (at paragraphs 32 to 40). The tribunal must set out the relevant facts, draw its inferences if appropriate and then conclude that there is a prima facie case of unfavourable treatment by, reference to those facts (identifying it), and then look to the respondent for an explanation to rebut the prima facie case. The employment tribunal must plainly make quite clear what the unfavourable treatment is which is prima facie discriminatory, so that the respondent can I understand what it is that it has to explain. It then , explains, if it can. Such explanations, if any, must be fully onsidered and: (i) It may be either obviously or after analysis, that there is no explanation. (ii) There may be an explanation which only confirms the existence of discrimination. (iii) There may be a non-discriminatory explanation which redounds to its discredit - eg it always behaves this badly to everyone. (iv) There may be a non-discriminatory explanation which is wholly admirable. But the employment tribunal must address the respondent's response. 11 The nature of such addressing of the explanations is set in the context of the words of Peter Gibson LJ in Chapman v Simon [1994] IRLR 124 at paragraph 41, namely that in discrimination cases it is 'appropriate that ... [employment] tribunals should perform their duties with meticulous care'. In the EAT case of Port v Royal Mail and others EAT/0045/99 Holland J required 'an analytical recitation of such explanations as are advanced by the respondents for those [arguable] instances [of sexual discrimination]'. The nature of the requirement is made clear by the Court of Appeal in Anya v University of Oxford [2001] IRLR 377 . At 379 (paragraph 7) Sedley LJ cites Neil} LJ in King v Great Britain-China Centre [1991] IRLR 513 at 518: 'In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds.' 12 He continued in his own words at 380: 'Were racial grounds an effective cause of the difference in treatment? What explanation of the less favourable treatment is given by the respondent? In answer to each of those questions the tribunal must make findings of primary fact, either on the basis of direct (or positive) evidence or by inference from circumstantial evidence.' 13 And at 380 'The respondent has to respond to the introduction of those items. He may dispute some of them as factually incorrect. He may seek to introduce other evidence to negative any possible inferences of racial grounds eg non-racial explanations for his acts and decisions'. 14 In Wolff, I said as follows: '26. [The tribunal] must therefore arrive at a conclusion that there is a prima facie case that the respondent has treated the applicant less favourably on the grounds of sex. Once it has done that, then it passes to consider the respondent's explanations; it must, if it has not already done so, make findings of fact, or draw inferences from findings of fact, for the purposes of concluding whether any of the explanations put forward by the respondent satisfies them, the burden being on the respondent to show that the less favourable treatment was not on the grounds of sex. ... 31. ...The reasons ...would ordinarily then be set out as to why the tribunal rejects the explanations and justifications put forward by the employer and concludes that the burden of proof has thus not been satisfactorily complied with. and thus that the only answer is that which was prima facie already found to exist when it transferred the burden under s.63A [of the 1975 Act] ... 34. ...We are satisfied that the failures by the tribunal to consider, set out and draw conclusions from the material facts related both to the establishment of the prima facie case, under s.63A, which was necessary even before the onus passed, and, even assuming it did correctly apply s.63A, to the consideration of the respondent's explanations after the passage of the onus.' 15 Elias J sets out the position in The Law Society u Bahl (2003] IRLR 640 ; '100. ...Where the alleged discriminator acts unreasonably then a tribunal will want to know why he has acted in that way. If he gives a non-discriminatory explanation which the tribunal considers to be honestly given, then that is likely to be a full answer to any discrimination claim"

It need not be, because it is possible that he is subconsciously influenced by unlawful discriminatory considerations. But again, there should be proper evidence from which such an inference can be drawn ... 116. ...The failure [to construct a hypothetical comparator] ...may raise doubts as to whether the tribunal has properly considered all potentially relevant explanations when identifying whether or not unlawful discrimination exists. It may raise a concern that the tribunal has failed properly to consider the possible lawful non-discriminatory reasons for the conduct in issue.' 16 It is apparent that, particularly given the reversal of the burden of proof, it is essential that, if the tribunal satisfies itself that there has been on the face of it unfavourable treatment, it has effectively only reached halfway; it must set out clearly its conclusions as to the nature and extent of such unfavourable treatment, and it must then fully and carefully consider, having thus identified the conduct which requires explaining, what the explanations of the employer were, and why, if such be the case, such explanations provide no answer."

[30]We will however, add a word about the practical handling of the transferred burden. The burden will transfer when the Claimant makes a prima facie case from which the Tribunal could conclude the Respondent had discriminated, in the absence of an explanation from it. The stage at which this consideration takes place is probably unique in legal proceedings. In criminal proceedings, a submission of no case to answer can be made at the end of the prosecution case. At that stage the defendant will have given no evidence. An explanation may have been given by him or her in the course of an interview, or following charge, in either case under caution. If in either case no comment was made, there will be no explanation by the defendant except for what might be deduced from cross examination of prosecution witnesses. In civil proceedings, a half time submission can also be made but there the nature of any explanation which might affect the Claimant's ability to prove all of the elements necessary for the breach alleged, will have been transparent from the statements of case and probably the exchange of evidence in advance. In both those situations, therefore, the judge genuinely decides upon the submission in the absence of any account by the defendant. In Employment Tribunals on the other hand, half time submissions are discouraged, particularly in the field of discrimination. The Court of Appeal in Logan v Commissioners of Custom and Excise

[2004] IRLR 63

approved the holding that "in discrimination cases, it will only be an exceptional or frivolous cases that it would be right to take such a course" referring to acceding to a half-time submission. The Tribunal will have heard all of the evidence and closing submissions on behalf of the parties before making its decision on whether or not the Claimant has established a prima facie case. It will of course listen to all of the evidence in the same fair way, but then as Ms Gower submits it performs a different function. She contends that the Tribunal is required "to adopt a different mind set" and take a more challenging approach to the evidence of the Respondent. Analysing purely the case made by the Claimant, and putting aside the explanations which it has already heard from the Respondent, it will make a decision on whether a prima facie case has been made out. If it has, it will then consider the evidence of the Respondent including its explanations and will do so bearing in mind that it is for the Respondent to prove that it did not commit the act of discrimination. The task of determining whether a prima facie case exists in the absence of an explanation by the Respondent is made clear by the statute, but is made difficult by the encouragement that such decision should not be made until all the evidence, and by implications submissions, have been heard.

[31]The Tribunal is required to give adequate reasons for its decision: Meek v City of Birmingham District Council

[1997] IRLR 250

, English v Emery Reimbold & Strick Limited

[2003] IRLR 710

[32]The threshold for a successful claim of perversity is high and is established only where an overwhelming case has been made: Crofton vYeboah (above). The reason for transfer

[33]With those principles in mind we turn to the central issue in this case which was for the Tribunal to determine why the Claimant had been selected for transfer, against his wishes, to Ross. The Respondent's case is based upon a single objective criterion, and the Claimant's case was on the grounds of his race. The single criterion was "not having worked outside Hereford". The Tribunal's duty, the point having been firmly put to it, was to decide whether that meant "as a Sergeant", or "whether as a Sergeant or as a Constable". Assuming for a moment in favour of the Respondent that "outside Hereford" was the sole criterion, the Tribunal should have decided on which version of that was correct. With respect to the Tribunal, this dispute could not have been put down to a simple difference of expression. The question will be remitted to the Employment Tribunal. Perversity

[34]The complaint of perversity is more difficult to resolve, but it must be recalled that the attack on this point is narrow. The Tribunal held that "the reason for the transfer is plain in the documents …" and it was the "outside Hereford" condition. We accept the submission that this decision is perverse as has been demonstrated to us by an examination of the very four documents the Tribunal relied upon. The Notice of Appearance states that the decision makers "considered the rôles, experience and qualities of all the Hereford Sergeants". There is a reference to the Claimant's "qualities to provide drive and energy". The Further and Better Particulars cite the decision as being based upon "the roles required of the officers and their experience and qualities".

[35]The third document relied upon is Superintendent Rutter's written explanation of the reasons for the Claimant's transfer in response to questions raised at a previous meeting, where the following reply is given:

"Due to your service profile and length of the service in Hereford City as a Sergeant and your reputation of being a good competent operational officer you were selected and duly transferred."

[36]The fourth document relied on is the Respondent's policy in respect of the transfer of police constables which is said to be consistent with the policy adopted in the instant case. That policy refers, in addition to the Hereford condition, to other criteria.

[37]The alternative basis for the submission of perversity relates to what is described as internal inconsistency. The Tribunal held (paragraph 32) that "the Further and Better Particulars were not correct regarding the process" of selection. This is conceded by the Respondent in its submissions to the Tribunal. The Respondent, of course, had to say that, for those particulars asserted there were more factors in play than the "outside Hereford" condition. But, again with respect to the Tribunal, it could not have held that it was "plain" that the Respondent's claim as to the single condition had been made out on the basis of a document which was an error.

[38]In our judgment, it certainly was not "plain" from the documents, which we and the Tribunal have considered, that the "outside Hereford" criterion was the sole reason for the transfer. We uphold the submission on perversity on both the grounds upon which it is put. The burden of proof

[39]Ms Gower submitted that the following facts were sufficient to establish a prima facie case and thus to transfer the burden of proof to the Respondent:(a) The Applicant was transferred to Ross

(b) The Applicant is Indian by descent

(d) All other officers in the selection pool were white

(e) The Applicant did not have clear access to the criteria for selection and the selection process was not transparent

(f) The Applicant believed that white officers such as Sgt Powell could have been selected.

[40]Although some support is given to the submission in relation to (f) from our judgment in Igen Ltd v Wong , (above), a constant in every discrimination case is that the Claimant believes there has been less favourable treatment and the genuineness of such belief is not relevant under the statute except in cases of victimisation when the issue is raised by a respondent. That in itself does not take the Claimant's prima facie case very far, but we accept that (a) to (e) do establish a prima facie case. Quite properly, they pay no attention to any explanation given by the Respondent, for this exercise is to be conducted "in the absence" of such explanation. That this proposition is correct is demonstrated by the way in which the Respondent framed its Answer in the EAT. For it asserted that a prima facie case had not been established in the light of findings by the Employment Tribunal. Fifteen findings are cited in support of this argument. All but one – that the "outside Hereford" condition was race neutral – emerged from evidence given by the Respondent and can properly be described as explanations offered for the decision to transfer the Claimant. Since these findings are expressly relied on by the Respondent in response to the Claimant's appeal on the burden of proof point, the flaw is obvious. If as the Respondent contends the Tribunal relied on these matters when it considered the burden of proof, and whether it transferred, it erred in law. Inferences

[41]Ms Gower made four broad criticisms of the Employment Tribunal in respect of its failure to draw inferences. One of them related to the selection criteria which we have dealt with above. It will be sufficient for the purposes of this appeal for us to deal only with the ground of appeal relating to Section 65. It is apparent from our analysis of the documents relied on by the Employment Tribunal that there is a difference between what appears in those documents and the case made orally by the Respondent's witnesses that the selection was on the sole basis of the "outside Hereford" criterion. We have noted that the Respondent accepted that the Further and Better Particulars were wrong, and there is also an admission that the Notice of Appearance was wrong in one respect. Included in our bundles were the written submissions of both Counsel to the Employment Tribunal. It is plain that ten inconsistencies were cited, with the submission that the documents were either misleading or wrong. There appears to be no express reference to Section 65. Nevertheless, the point is taken on appeal, no objection has been raised by Ms Romney to our dealing with it and she has made submissions upon the correct construction of Section 65.

[42]The short point is whether Section 65 covers replies given in a form other than that prescribed in the Order.

[43]At the outset it must be borne in mind that it is common ground that the approach of the Court of Appeal in Anya for the drawing of inferences, which are conclusions both in relation to what may be regarded as circumstantial evidence drawn from primary facts, and also legal conclusions drawn from those primary and secondary findings, is most important in discrimination cases. If the Tribunal's attention was not drawn to Section 65, it would be wrong for criticism to be made of its failure to consider whether to draw inferences. As a matter of construction, which seems to accord with policy, we hold that Section 65 applies to questions raised in accordance with the 1977 Order and otherwise. This is because Section 65(2) applies to questions posed by an aggrieved person "whether in accordance with an Order under Sub-section (1) or not " (emphasis added). A statutory format is provided under the Order and no doubt it is more convenient for aggrieved persons and respondents to adopt that format. The procedure is most useful so aggrieved persons may understand the nature of any suspected unfavourable treatment prior to launching Tribunal proceedings. It facilitates the presentation at an early stage of material focussing upon factual matters which may be in dispute, and explanations for various forms of treatment. Thus a Tribunal may, but is not required to, draw an inference from a nil return or from an invasive reply if it considers it just and equitable so to do. A respondent cannot be ordered to complete a questionnaire, so the sanction for breach of a Tribunal Order is not available if it fails to reply. That is why the facility to infer matters is included in the statute.

[44]Our construction of Section 65(2) is reinforced by the policy which we see informing this Sub-section. A respondent, asked a direct question in writing by an aggrieved person, who fails to respond, or does so evasively, ought to be treated in the same way irrespective of whether a question has been asked under the statutory procedure.

[45]This approach is made clear by the judgment in Barton where in guideline 6 (paragraph 25) there is this:

"(6) 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) of the Sex Discrimination Act: see Hinks v Riva Systems EAT/501/96."

[46]It may be thought, as Ms Gower submits, that at common law one of the main tasks of a fact finding Tribunal is the drawing of inferences from a failure to reply to a proper question, or an evasive reply. In certain circumstances, by statute a jury or justices can draw such inferences against a defendant. Section 65(2), as we construe it, is in line with that principle. Disposal

[47]For reasons we have given we will allow the appeal. Ms Gower submitted that if we found in favour of her client, remission should be to a fresh Tribunal, since an incorrect approach to the burden of proof would make it difficult for the Tribunal to judge the case with a different frame of mind. She drew attention to the guidelines set in Sinclair Roche at paragraph 46 which include the following:(1) Proportionality must always be a relevant consideration.

(2) The passage of time.

(3) Whether there is bias or partiality.

(4) Whether there is a totally flawed decision by reason of a complete mishandling.

(5) Whether there is a real risk, on the Tribunal having a second bite, that it will, in human terms, wish to say "I told you so".

(6) The Tribunal's professionalism. We have decided not to remit the whole of this case for a fresh hearing. We do not consider it is proportionate to do so. It must be borne in mind that the Claimant raised a number of discrete claims including complaints as to the discriminatory allocation of compassionate leave and the operation of the Respondent's stop and search policy, and a claim of victimisation under Section 2. The Tribunal found against him on all of these and yet there is now no appeal. The simple inference to be drawn from that is that neither party has lost confidence in the Employment Tribunal to make decisions in this case on the merits. We have been able to give a clear direction to the Tribunal as to the correct approach to the burden of proof based on Sinclair Roche , which was not available to it at the time. Since it appears not to have had a submission directly made to it under Section 65, it can now consider the oral evidence of the Respondent's witnesses as against the answers given in the Notice of Appearance and the Further and Better Particulars as these are now within scope of Section 65.

[48]The finding on perversity at first sight may present a more serious problem. However, we are in as good a position as the Employment Tribunal to decide whether criteria, other the "outside Hereford" condition, were relied on in the documentation cited by the Tribunal. As we read them, these documents point only in one direction: in favour of the Claimant's case not only as it is not "plain" that the sole issue is the "outside Hereford" condition, but it is plain to us that other matters are in play. Having detected an error of law, it is open to us to make a decision if we have the requisite material. We do. We hold that the representation made by Superintendent Rutter to the Claimant, the Notice of Appearance and the Further and Better Particulars contain material other than the single objective criterion. So do the explanations recorded in writing emerging at the meetings referred to by the Tribunal. The Respondent accepts that these are not aptly described as a difference of expression since they bear directly upon the dispute between the parties.

[49]There has been a considerable passage at time, for reasons noted above, since the decision was made to transfer the Claimant. But the Tribunal made no complaint when it descended on this material three years later and the hearing can be restored before it, we anticipate, within a year of the handing down of its Extended Reasons on 9 March 2004.

[50]There is no question of bias or partiality. The decision is not totally flawed, for we have been able to give clear directions on two points and have made a finding which will assist the Tribunal on the selection criteria. We have confidence in the Tribunal's professionalism to look at the relevant matters again and with the help of our directions we are confident that it will avoid the charge of, subconsciously, seeking to justify its earlier incorrect decision.

[51]The Tribunal will therefore consider the following matters and reach a fresh Judgment:(1) In the light of our finding that the Claimant has established a prima facie case (paragraphs 39-40 above) and the burden transfers to the Respondent, it is for the Tribunal to consider whether it has proved by its explanations that it did not discriminate.

(2) In the light of our finding that the documents referred to in paragraph 51 of the Employment Tribunal's reasons disclose matters relied on by the Respondent in addition to the "outside Hereford" condition, a finding should be made on what the criteria relied upon by the Respondent were.

(3) The Tribunal should make a finding on what precisely was the "outside Hereford" condition.

(4) The Tribunal should consider whether it is appropriate to draw inferences, and if so what, from the Respondent's Notice of Appearance and Further and Better Particulars and Mr Rutter's letter, pursuant to Section 65.

[52]It will be open to the Tribunal to take written, alternatively oral submissions supported by a written skeleton, at a hearing on these matters. We think it unlikely that it will wish to hear further evidence but that is a matter for it. The way forward

[53]We were told that the Claimant's career at Ross was short lived and he has now been restored to Hereford and promoted to Chief Inspector. We have not taken time to consider whether he suffered any financial loss, and if so what. If his claim succeeds, he would be entitled to ask the Tribunal to consider making an award for injury to feelings. Commendably, the Claimant has got on with his career and has advanced. Equally commendably, notwithstanding this protracted litigation, the Respondent has got the Claimant back at Hereford, the Police Station of his choice, and has promoted him. By definition, they are engaged in a relationship where mutual trust and confidence is alive and well. Very substantial sums of public money, and Police Federation resources, have been dedicated to this case. The relevant event occurred in 2000. The parties are represented by highly experienced solicitors and Counsel. The Claimant has lost all his claims bar one, which is presently to be reconsidered. Bearing all those factors in mind, all three of us on this Tribunal strongly urge the parties to enter into some conciliated or mediated solution. Conciliation through ACAS is available since this case is now back before the Employment Tribunal. Conciliation and mediation require open minds and a spirit of compromise, informed by sound advice and a sense of realism. The EAT has under Rule 36 a power to take steps if conciliation is possible. Our job is over, but we hope our words will assist the parties in seeking a pragmatic way forward in this case.

[54]We very much wish to thank both Ms Gower and Ms Romney for the considerable help they have given us both orally and in writing in this case. The appeal is allowed in part and remitted to the same Employment Tribunal.