MR S ISMAIL v THE COMMISSIONER OF POLICE OF THE METROPOLIS [2007] UKEAT 0193_06_2501

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0193_06_2501Case No Appeal No. UKEAT/0193/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S ISMAILAPPELLANTTHE COMMISSIONER OF POLICE OF THE METROPOLISRESPONDENT
Before
Mr Justice EliasDate 25 January 2007
[1]APPEARANCES For the Appellant Ms ALTHEA BROWN (of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors Swinton House 324 Gray's Inn Road LONDON WC1X 8DH For the Respondent Mr OLIVER SEGAL (of Counsel) Instructed by: Metropolitan Police Service Legal Services Wellington House 67-73 Buckingham Gate LONDON SW1E 6BE SUMMARY The appellant, a police officer, alleged that he had suffered an assault by his superior which was a racist attack. There was a detailed investigation, involving many officers, to consider whether disciplinary action should be taken against the alleged attacker. It was decided not to do so. The appellant then contended that the refusal to take disciplinary action on the basis that there had been a racially aggravated attack was itself tainted by racism, alternatively the appellant was being victimised for making the complaint. The appellant initially took Employment Tribunal proceedings arising out of the attack itself, alleging that it was racist, but later withdrew them. He continued to pursue the allegation that the investigation and the decision not to take disciplinary action were racially motivated. The Tribunal, analysed the case under the two steps set out in Igen v Wong and held that he had been subject to no less favourable treatment than any hypothetical comparator, but even if he had, the respondents had shown that they were not influenced by race. Whilst they were critical of certain aspects of the investigation, the Tribunal was satisfied that they did not reveal race or victimisation discrimination. It was alleged on appeal that the Tribunal had erred in various ways in its approach, and that the conclusion was perverse. The EAT rejected each of the grounds of appeal. THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT) This is an appeal from the decision of the Employment Tribunal sitting in London Central in which it held that the appellant, Mr Soy Ismail, had not been discriminated against on grounds of race or national origins nor by way of victimisation, as he had alleged. Background[2]Mr Ismail was first accepted into the Metropolitan Police Service in August 1992. Shortly thereafter, in February 1993, he joined the Enfield Division.[3]During his initial ten weeks' street duties course he met Danny Morgan, one of his instructors, who was then a police constable. The appellant had some difficulties with colleagues when he initially joined the police. He made complaints to his employers alleging racist behaviour by certain officers, some of whom he believed were friends and associates of Constable (as he then was) Morgan. Indeed he commenced an Employment Tribunal action in relation to this alleged behaviour but there was a negotiated resolution of the difficulties and the action was withdrawn.[4]He subsequently became a police officer in 1994, having completed his probation successfully.[5]He suffered a number of injuries and illnesses before subsequently ending up at the Wood Green Police Station, which is part of the Tottenham Police Division, where Constable Morgan had by now become Sgt Morgan and was the permanent custody officer.[6]On 29 October 2003 an incident occurred which was the origin of these proceedings. The appellant was acting as gaoler at the Tottenham Police Station when Sgt Morgan was the Custody Sergeant. It was a busy morning but for a period of some twenty minutes the appellant absented himself without leave or explanation.[7]Sgt Morgan asked on his return where he had been and he replied "the governor collared me", thereby implying that another senior officer had required his attendance. He was asked who the officer was and why he had been needed; the appellant tapped his nose, indicating that it was a private matter. Sgt Morgan was irritated by this and he repeated the demand "don't point at your nose, why?" When he was told who it was he said:
"I don't care who asks you, you first go through me before seeing a senior officer"
. In fact the explanation had been false; the appellant had absented himself on his own private business and had not been summoned by a senior officer at all.[8]The matter ended there and the office remained fairly busy. There were a number of people in the Custody Suite, including members of the public and a solicitor who heard the exchange.[9]Later the appellant asked Sgt Morgan if he could have a quick word with him. They went down the cell passageway and into a room where they could talk privately. The walk down the passage was in fact recorded on CCTV and Sgt Morgan could be heard enquiring "yes" as the door was closed. There was some shouting and some seconds later the door opened and there had plainly been some altercation between the two men. The appellant alleged that Sgt Morgan had pushed him in the face and he repeated that on a number of occasions. He subsequently said that he had been grabbed by the throat. Both officers then made complaints about the incident.[10]The appellant contended that it had been a racially motivated assault by Sgt Morgan. He sought to support his allegation by alleging that there had been inappropriate behaviour by the Sergeant all morning. He said that he had been treated in a contemptuous manner; for example, he had been required to make the tea, and had been required to answer the phone when in fact the Sergeant was much closer and could have answered it, and he contended that the Sergeant had been shouting and swearing at him. He was humiliated, he said, to be spoken to in this way in front of his peers when everyone was watching.[11]The video tape in fact revealed in a large part what had occurred, and the Tribunal found, as indeed did officers who subsequently investigated the incident, that the CCTV record simply did not reflect the account given by Constable Ismail. That account was, as the Tribunal found, grossly exaggerated. For example, the request to make tea was just that – a request and not an order - made in a perfectly civilised way; and the relationship between the two men was quite friendly thereafter and did not support the view that the Sergeant was acting in a contemptuous manner at all. The investigation[12]Following the complaint about the alleged racially motivated assault the Chief Superintendent initiated action by the DPS that is, the Directorate of Professional Standards, a department of the Metropolitan Police concerned with breaches of police discipline and maintaining professional standards. The Officer required to carry out the investigation was Detective Inspector Gaughan, but he could not initially do it so it was temporarily taken over by a substitute, DI Bell. He deputed Detective Constable Mather to take a statement. She did so, and indeed it was produced after an extensive interview with the appellant, lasting from 6.00 p.m. to 11.30 p.m. on 29 October. The Tribunal did not hear evidence from the interviewing officer but did have notes of the interview.[13]The claimant's reason for suggesting that the assault had been racially motivated related to the conduct which the claimant had suffered when he was at Enfield. He suggested that Sgt Morgan had displayed racial feelings at that time, some ten years earlier, although none of the race complaints made by the appellant at that time had named officer Morgan.[14]There were subsequent amendments and re-amendments of the appellant's written account, and the final version was signed and completed some three weeks later on 19 November 2003.[15]Having obtained the appellant's statement, the DPS then interviewed others who had been witnesses to the incident. They secured the CCTV images which were carefully analysed, and the tapes were sent for audio enhancement so that the maximum information could be obtained. The officers also considered the appellant's personnel file, although this gave only very scant detail of the earlier allegations of racism made when at Enfield. The documents had, not surprisingly, been destroyed since then.[16]Sgt Morgan was placed on restricted duties from 30 October as a result of the allegations. He was about to have been transferred to the Training School as an instructor but that was suspended in view of the investigation.[17]DI Gaughan made a detailed report on which he based his recommendations. It was based on a draft by Sgt Lucas. That report is quite a lengthy. It cast doubt on Mr Ismail's credibility, although as the Tribunal noted, when he gave evidence DI Gaughan was not able to say why he preferred the evidence of Sgt Morgan to that of the appellant. The officer formed the view that there had been some admitted misconduct, namely requiring Constable Ismail to make the tea and admonishing him in public, and his view was that this meant that Sgt Morgan was unfit to train new recruits, and should have further training before so doing. But he did not consider that any disciplinary proceedings should be initiated against Sgt.Morgan.[18]DI Gaughan recommended that words of advice be given from a senior officer in relation to the upbraiding of the appellant in public, not least because Sgt Morgan did not recognise that this was inappropriate.[19]The report went to a CPS lawyer who concluded that although there was evidence of assault, it was not in the public interest to prosecute. The Tribunal inferred from that that the CPS did not consider the racial element of the charge could be sustained.[20]The file was then passed to Superintendent Campbell. He asked Inspector Grevatt to review the file. That officer came to the same conclusion as had DI Gaughan. Superintendent Campbell then authorised that Sgt Morgan be given words of advice and that no other disciplinary action be taken. He explained his rationale to the Tribunal in this way. If there had been a warning, as opposed to advice, then the officer could have required a disciplinary hearing and Superintendent Campbell was satisfied that the Police would lose any such hearing because the evidence against the Sergeant was insufficiently strong.[21]The appellant was unhappy with the outcome. Detective Chief Superintendent Flower was asked to review the file. He firmly came to the view that the appellant's evidence was undermined to such an extent that he did not believe any disciplinary Board would convict Sgt Morgan on the balance of probabilities, save perhaps in relation to the one matter in respect of which words of advice had been recommended.[22]None of this satisfied the appellant, who has alleged that the investigation itself was flawed, not merely by defects in the manner in which it was carried out, but also in the fact that no disciplinary action was taken against Sgt Morgan for allegedly racist conduct. He contended that the investigation and the decision not to discipline were themselves influenced by racist considerations, alternatively that he was being victimised for raising the complaint against Sgt Morgan.[23]As the Tribunal noted, however, the appellant himself had initially taken proceedings against the Police before an Employment Tribunal arising out of the alleged racist behaviour of Sgt Morgan but, on advice, he had withdrawn that complaint. It is, as the Tribunal noted, rather curious that he should suggest that the proper inference to be drawn from the failure of the Police to take disciplinary action was not the reason given, namely that they believed that the case was unsustainable, but was that they had been motivated by considerations of race, in circumstances where he himself did not consider – one might reasonably assume – that he could sustain his complaint of racial behaviour before the Employment Tribunal. Moreover, the burden of proof would have been more favourable to him in those proceedings than it would have been in any disciplinary proceedings.[24]There was another aspect to the case. It arose from various incidents from about June 2004 where the appellant had contended he had been the subject of ostracism and unacceptable behaviour from many of his colleagues. The Tribunal rejected all these allegations and they have not been pursued on appeal so we say no more about them. The Tribunal's decision[25]The Tribunal identified early in its decision the particular issues it had to determine, as agreed by the parties. In relation to the allegations of race discrimination they were as follows: ("3.1.1 Did the Respondent treat the Claimant less favourably than it did or would treat another; in particular by failing to properly carry out and then review an investigation into the events of 29 October 2003, thus reaching an inappropriate conclusion? 3.1.2 If so, was that treatment on the grounds of his race or ethnic origin? 3.1.3 If so, did the Claimant thereby suffer detriment?" The issues were similarly defined with respect to the victimisation allegations.[26]It is important to note that in this analysis of the issues a crucial element was whether the respondent reached an inappropriate conclusion. The Tribunal also directed itself in accordance with the appropriate principles of law, focusing in particular on the issue of the burden of proof, and it referred to the relevant authorities in that context, including in particular Igen v Wong [2005] ICR 931 . There is no criticism of its directions as such.[27]In the course of its decision, the Tribunal identified a number of aspects of the investigation of which they were critical, particularly with respect to DI Gaughan's report. Three errors marred that report in particular, the first two of which were material because they were relied upon as casting doubt on the appellant's credibility. First, it was said that Mr Ismail had not alleged that the assault had been racially motivated when initially interviewed by DC Mather whereas in fact he had; that was simply incorrect.[28]Second, it was suggested that the fact that the appellant had amended his statement over a period of three weeks cast doubts on the veracity of his account, but the Tribunal noted that when DI Gaughan was taken through these amendments he accepted that, save for one possible exception, they in no sense supported the contention that the story was being fabricated.[29]Third, the investigating officers found little in the records about the earlier alleged discrimination at Enfield, but the Tribunal noted that they did not ask the appellant himself for any relevant documentation though in fact he was able to produce a statement. It has to be said, however, that this dealt only with allegations against other officers and it did not support any contention that there had been a complaint directed at Sgt Morgan himself.[30]The Tribunal were concerned about certain other features of the investigation. They thought that the fact that there were marks to the claimant's neck could have been pursued further, although noting this would not really have helped them one way or the other as to the question of racial motivation. They were critical of the fact that there was a reference that the Police had considered terminating the appellant's services early in his career. That was, we think, a little harsh given the context in which that observation was made. Nonetheless it was a finding of the Tribunal. The Tribunal's conclusions.[31]The Tribunal stated (para 21) that the case came down in the end to the credibility of the witnesses, in particular the claimant and the supervising officers. They noted that Mr Ismail had contended that he had been unfairly treated because of his ethnic background but they also noted – and we should emphasise that this is not, as was suggested by the appellant, merely their own analysis but reflects the analysis in the report relied upon by DI Gaughan – that there had been various powerful reasons for disbelieving the account given by Mr. Ismail.[32]First, he had told a lie about the reason for his twenty minute absence on the day in question. He had not been absent because summoned by a more senior officer but for other personal reasons.[33]Second, they noted that there had been what they described as a "gross exaggeration" of the account of the incident. As we have said, the CCTV camera demonstrated beyond doubt that the incident did not develop in the way in which he had recounted.[34]They also observed that in their opinion the case was pervaded by "an assumption almost expectation of discrimination" so that the appellant saw less favourable treatment in the most innocuous actions. They noted, for example, that he was critical of DI Gaughan leading the investigation because he was alleged to have made racially-stereotyped remarks some years before in front of a particular witness who, however, was not called before the Tribunal. The Tribunal simply rejected that evidence.[35]Accordingly, although it is right to say that the Tribunal were critical of the report because it in part questioned the veracity of the appellant's account for unjustified reasons, they nevertheless accepted there were cogent reasons for taking the view that this appellant was not reliable.[36]The Tribunal then considered the question of whether the appellant had been subjected to less favourable treatment. This is the first stage in the Igen test. Sgt Morgan had been identified as a comparator. The Tribunal rejected this and said that he could not conceivably be considered an appropriate comparator because he was the alleged wrongdoer whereas the appellant was the complainant.[37]The argument had been that both had been interviewed and therefore a difference in the way in which they had been treated. This, it was said, showed prima facie evidence of discrimination, but the Tribunal concluded the different status of the two officers and the fact that the Police had to carry out an investigation in accordance with well-established procedures concerning a misconduct investigation of this kind (which they identified and set out at some length), plainly meant that the two officers were not in an equivalent position. Indeed, they commented that in an important respect it may be said that the appellant was treated more favourably than was Sgt Morgan because the experience of the members of the Tribunal – and it is consistent with our experience too – is that where there is evidence of a potential fight at the workplace then both parties may be suspended pending investigation whereas in this case Mr Ismail was treated as the complainant and Sgt Morgan had the less favourable position of a person investigated.[38]The Tribunal, however, also considered the question of a hypothetical comparator. The issue here was whether a person of a different racial group would have been treated any differently than the claimant. They were satisfied that he would not, notwithstanding some of the sloppy aspects of the investigation, 'sloppy' being the Tribunal's description.[39]The Tribunal then set out in some detail the basis for concluding that there were serious concerns about the account given by Mr Ismail. We have summarised these above. In truth, there was really very little evidence that Sgt Morgan had acted for racist motives. There had been no evidence of any earlier complaints against him on this basis and, as we have said, there was no complaint made against him by the appellant when he had made racist complaints against others some ten years earlier when based at Enfield. The Tribunal said that the evidence on which they were being asked to infer racism on the Sergeant's part was "severely damaged". The Tribunal's conclusion was that the claim of the racially-motivated assault was based on the most tenuous of grounds and they then noted that they were satisfied that so weak was the case that the investigations could not fairly be criticised (para 37). This was perhaps a reference to the terms of the guidance under which the Police were acting. As we say, that was set out in detail by the Tribunal but we have not repeated it in this decision. Suffice it to say that the guidance at para 2.2.3 says that:
"every investigation should be proportionate to the serious allegations made and its extent shall be determined by the evidence and the investigative opportunities available."
[40]The Tribunal found in terms that the investigation here was proportionate. Their overall conclusion was unambiguous: they considered that it would be perverse to conclude on his evidence that he had been been less favourably treated on grounds of race. They were satisfied that any complainant in the position of this one who had exaggerated, manufactured and manipulated the evidence could have expected the complaint to be treated in the same way with the same outcome.[41]They also considered that the separate complaint about the investigation, as opposed to the outcome, was not made out. They noted certain complaints which had been advanced about that investigation and which we have not set out so far and rejected them. They included, for example, the fact that there had been no further attempt to discover what had happened at Enfield some ten years before. This, the Tribunal held, was perfectly explicable; it would have been unrealistic and disproportionate to have expected the Police to have done more.[42]So essentially, having identified the issues at the beginning of their judgment in terms we have already set out, they conclude at paras 37 and 38 that there was no less favourable treatment either in terms of the ultimate outcome nor the scope of the investigation. Mr Segal submits that that shows in fact that not only was there no less favourable treatment but also that there was no detriment. That would seem to follow. In any event the Tribunal was satisfied that there was no basis in the claim.[43]They went on to say, however, that even if they had found prima facie discrimination, any such finding being based on those aspects of the investigation which caused them disquiet. they were satisfied that such errors as had occurred were not caused by any racist considerations but were the result of incompetence. In this regard they highlighted the weaknesses in the report, to which we have already made reference.[44]They carefully considered the possibility that discriminatory considerations might underlie what may appear to be defects or aspects of incompetence but they concluded that in this case, whilst the appellant was entitled to have some concern about these failings in the investigation, the respondents had satisfied them that the reason for the conduct was not in any sense discrimination. The investigation had been carried out broadly in line with the procedures established for misconduct investigations of this nature. Moreover, the claimant had been represented by the Police Federation who did not at the time make the complaints which were subsequently advanced before the Tribunal concerning the delays in the procedure.[45]The two matters which most concerned the Tribunal were the failure to recognise that the appellant had complained of race from the outset on 29 October. That, they noted, was just a mistake since it was obvious that he had done so from his statement. The error was easily identified, and it should have been. It was so obvious that it could not have intentionally been intended to mislead. They were also concerned that DI Gaughan had accepted that the various changes in the statements of the appellant did not, in fact, undermine his credibility as the report had suggested.[46]But, having taken those matters on board, the Tribunal said in terms (para 50): "In the end we were satisfied that these failures, whilst they may have reflected adversely on DI Gaughan's competence, when taken with all else, do not drive us to reject the respondents' evidence as to motivation. There was, the Tribunal believes, substantial reason to consider the claimant to be unreliable and, as we suggest below, it was this lack of confidence in his veracity that informed…… the officers' conclusion".[47]In short, the Tribunal concluded that the appellant did not establish less favourable treatment; and even had he done so, the respondents had satisfied them that the investigation was proportionate and that any defects that had been carried out were not by reason of any racist considerations. They had made the decision not to take disciplinary action on a proper assessment of the evidence before them. They further concluded, essentially on the same grounds, that the claim of victimisation could not be sustained either. The grounds of appeal[48]The grounds of appeal were to some extent modified during the course of the hearing before us but they broadly fell into three categories. First, it was contended that in analysing the evidence, and in particular in the context of determining whether there was less favourable treatment, the Tribunal wrongly substituted its own view for that of the officers concerned. In particular, emphasis was placed on para 37 of the decision in which the Tribunal make the observation that it was a weakly founded case and in which the Tribunal had analysed the evidence and given reasons why Mr Ismail's evidence was not credible. It is alleged that they did so without having properly considered whether this was the evidence which was relied upon by the officers themselves.[49]It is true that the Tribunal does not in terms attribute their analysis to the officers. However, Mr Segal in his helpful submissions to us noted that in fact the analysis by the Tribunal of the features which could properly be considered to cast doubt on the credibility of Mr Ismail were all to be found in the report which was the basis of DI Gaughan's recommendation. It is true that in that report the question of racism is dealt with under a paragraph headed 'Additional Comments' and it is equally true that the conclusion that "the integrity of PC Ismail in this matter has been substantially compromised" does, if one focuses merely on that paragraph, appear to rely on a small number of factors only, not all of which would of themselves justify that conclusion.. These include the two misleading features, namely that he had not initially complained of race discrimination and that he had amended his statement in a way which cast doubt on his credibility. But we accept that one has to look at this report as a whole and there are very extensive references – if one goes through this report – to areas where PC Ismail's evidence seems not to stand up when compared against the video evidence in particular, see for example para 13.2 of the report. The Tribunal's analysis in large part simply mirrors the observations in the report.[50]Accordingly, whilst we accept that there would be some justification in this criticism if the Tribunal had, as it were, reached its assessment of credibility off its own bat, it is plain that it was reflecting and accepting the analysis of DI Gaughan himself, save to the extent that it considered that some of the additional grounds on which he was critical of the veracity of the appellant's evidence were not justified.[51]The second ground, which has really emerged more during the course of argument, was this. Ms Brown says that when looking at the question of less favourable treatment the Tribunal focused principally on outcome, that is, whether a complainant would have been treated in the same way if he were not of the same racial or national origin and to some extent, at whether the investigation was proportional. What the Tribunal did not do at that stage was also to focus on the particular defects in the investigation itself. It looked at the question of less favourable treatment initially independently of those considerations, and it only then focused on those having reached the conclusion that there was no less favourable treatment. Ms Brown submits that this was a defective approach because it did not give proper weight to these factors when considering the first stage in the Igen test.[52]Mr Segal says that all this is perfectly explicable if one bears in mind the particular issues which it was agreed the Tribunal had to consider. They were asked in particular to look at the causal question, namely whether any less favourable treatment led to an inappropriate conclusion. They reached the very clear view that the investigation had been of sufficient scope and did not reach an inappropriate conclusion. On the contrary, the investigation reached a conclusion was the only properly sustainable conclusion given the weaknesses in the evidence of the appellant and indeed the fact that there was no independent evidence of any racial motive on behalf of Sgt Morgan.[53]We see considerable force in that submission. It may be said that having reached that conclusion, and bearing in mind the agreed issues which it had to determine, the Tribunal did not need to go further. But in any event, even if it can be said as regards the nature of the investigation that there was less favourable treatment than might have been meted out to a hypothetical comparator that still leaves the question, what was the reason for that less favourable treatment? And here the Tribunal make it plain that, having regard specifically to these weaknesses in the investigation, they are satisfied that they did not result from any racial motive.[54]Ms Brown says that the Tribunal do not properly identify why they occurred. We think that is quite wrong. As we have said, they concluded, for example, that they were satisfied that the observation in the report that the appellant had not complained at the first opportunity was obviously a mistake and ought to have been spotted. In other words, incompetence itself is an explanation. It is quite right, as Ms Brown says, that one must look carefully at a simple contention by an employer that he has behaved badly or incompetently and plainly such behaviour may be evidence of discrimination. But the Tribunal did look at all of this carefully and they gave very cogent reasons for concluding that although there may be some criticism of DI Gaughan's competence in this case, this really had nothing to do with discrimination. We think anyone reading this case would be compelled to come to the same conclusion, but whether that is right or not, this was manifestly a sustainable conclusion. This is equally true of the conclusions with respect to the outcome and scope of the investigation.[55]Then Ms Brown again ran the argument that the appellant was treated less favourably than Sgt Morgan. She did not seek to rely on him as an actual comparator as she had below, but she said that when considering the position of a hypothetical comparator, it was appropriate to have regard to how his evidence had been weighed and assessed. This comes close to making him an actual comparator in fact. We think that this is misconceived, largely for the reasons given by the Tribunal. As Mr Segal pointed out, the appellant never was cross examined in the way in which Sgt Morgan was, for the obvious reason that he was the witness and the Sergeant was a potential defendant in criminal proceedings.[56]Furthermore, the fundamental question here was whether the appellant's evidence would be likely to be accepted at any disciplinary hearing. The view of the officers of the respondent, on very cogent grounds, was that it would not. Superintendent Campbell, who actually made the decision, and DCS Flower, who later reviewed that decision, were very clear on that point. The appellant had every opportunity to give as full an account of the incident as he wished; there were flaws in that account when tested against the other evidence, and precious little from which one could infer racist motives on the part of Sgt. Morgan.[57]Finally, Ms Brown submitted that the conclusion that the defects did not disclose race and/or victimisation discrimination was perverse. Here was a very experienced police officer, DI Gaughan, part of the special DPS, making elementary errors in his report and failing to answer questions satisfactorily before the Tribunal.[58]Perversity is a very high hurdle and we have no doubt that this case comes nowhere near it. On the contrary, the evidence justifying the conclusion that disciplinary proceedings could not be sustained was extremely strong. Moreover, DI Gaughan only made a recommendation, albeit that it would be influential on later officers. But they gave their own reasons for reaching the decision they did. The Tribunal thought that any other conclusion would be perverse. Disposal.[59]For all these reasons, this appeal is dismissed.