MR GEORGE BAYODE v THE CHIEF CONSTABLE OF DERBYSHIRE [2008] UKEAT 0499_07_2205

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0499_07_2205Case No Appeal No. UKEAT/0499/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR GEORGE BAYODEAPPELLANTTHE CHIEF CONSTABLE OF DERBYSHIRERESPONDENT
Before
His Honour Judge ReidDate 22 May 2008
[1]APPEARANCES For the Appellant MS MELANIE PLIMMER (of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors 1st Floor St James House 7 Charlotte Street Manchester M1 4DZ For the Respondent MR MARK LEY-MORGAN (of Counsel) Instructed by: Force Solicitor Derbyshire Constabulary Legal Services Butterley Hall Ripley Derbyshire DE5 3RS SUMMARY Race Discrimination - Detriment The Appellant is a police officer in the Derbyshire Constabulary. He made a race discrimination complaint against a colleague which he withdrew. He subsequently brought race discrimination proceedings against the Chief Constable. Among many complaints was one of victimisation by his colleagues on the ground of the earlier proceedings. His colleagues had recorded a number of matters about him. This recording and reporting was said to amount to a detriment because of the effect on the Appellant. The ET dismissed all his complaints and in dealing with the victimisation complaint held that the mere act of making a written record where no inappropriate action was taken in respect of the issues recorded was not a detriment. On the correctness of this single point the Appellant was given permission to appeal. HIS HONOUR JUDGE REID QC This is an appeal on a single point from a decision of an Employment Tribunal held at Manchester between 5 March and 6 June 2007. After a hearing lasting 29 days the Tribunal dismissed Mr Bayode's claims for race discrimination against his employer, the Derbyshire Constabulary. Mr Bayode is black African and Nigerian by national origin. He sought to appeal on a wide variety of grounds. All but one of the grounds was dismissed at a preliminary hearing. The single point on which the appeal was allowed to proceed related to a claim for victimisation arising out events while Mr Bayode was posted to Buxton as a police constable.[2]Mr Boyode has had a somewhat checkered career from the time he joined the police. There had been difficulties with his peer group when he was at training school, there were then further problems during his initial posting as a probationer constable at Chapel-en-le-Frith Police Station between July 2002 and March 2003. He was moved to Glossop Police Station for a fresh start and was there from March 2003 to March 2005, initially as a probationer constable and subsequently as a ranking officer. In May 2003 he brought proceedings against the Respondent and various others alleging race discrimination during his time at Chapel-en-le Frith. Those proceedings were, it appears, eventually discontinued.[3]From 29 March 2004 he was under the supervision of Sgt Brett at Glossop. On her shift he made good progress. On 5 October 2004 he went off sick with depression. He returned to light administrative duties at Buxton on 14 March 2005, having been transferred there with his consent. At his own request he was again under the supervision of Sgt Brett who had transferred from Glossop. He resumed full duties in May 2005 and was still there when he presented his claim to the Employment Tribunal on 18 September 2005. He remains a police constable but has apparently been off sick continuously since about the time he commenced these proceedings.[4]Mr Bayode made two complaints about his treatment at Buxton before the Employment Tribunal. The first related to the preparation of Mr Bayode's performance development review (PDR). This complaint was dismissed by the Tribunal and the dismissal is not the subject of any subsisting appeal. The Tribunal found the process of producing the PDR was "wholly free of any discrimination or victimisation". The second complaint, as set out at para 4.5 of the Tribunal's judgment, was formulated in these terms:
"At Buxton the Respondent treated him less favourably on racial grounds and/or victimised him … in harsh monitoring and over-close supervision by superiors and colleagues (Inspector Corton, Sergeant Brett, Sergeant Measham, and Police Constables Martin, Buckley, Haighton, Twort and Copson)."
[5]The Tribunal recorded that the complaint was particularised in the written submissions of Miss Plimmer, who appeared for Mr Boyode, as follows:
"The claimant relies on the following matters (which the Tribunal takes from paragraph 153 of Miss Plimmer's submissions); (a) PCs Buckley, Martin and Twort treated him less favourably by recording and reporting matters which were unnecessary and unjustified, particularly the matters they reported to Sergeant Brett which she then used in the PDR; (b) Sergeant Brett and/or Inspector Corton advised Sergeant Measham and PCs Twort, Copson and Haighton to record matters in their PNBs or submit reports about incidents. (The reference here to Sergeant Measham appears to be a mistake. Sergeant Measham provided his report on his own initiative, not at the request of Sergeant Brett or Inspector Corton.) Miss Plimmer accepts at paragraph 170 of her submissions that there were actual incidents which gave rise to the reports but contends that the particular proximate reason or concern was not the real or effective reason for doing so."
[6]From direct evidence or inference the Tribunal made a number of findings of fact. The shift at Buxton was small, comprising PCs Bayode (the Appellant), Buckley (who had died before the Tribunal hearing), Twort and Martin. In May 2005 PC Seymour had warned PC Martin to be wary of Mr Bayode and to note down any incidents in her personal notebook (PNB). PC Buckley told Mr Bayode in June 2005 that he had been told to be wary of him and note problems in his PNB. PC Twort also knew of the warning. All three knew of the previous race discrimination claim. There was a poor atmosphere on the shift for a number of reasons: officers were concerned that Mr Bayode might make a complaint of race discrimination; there had been incidents such as when Mr Bayode had made inappropriate sexist remarks to PC Martin; Mr Bayode was unhappy about his PDR; and Mr Bayode was inclined to be moody and uncommunicative.[7]Of the reports made on Mr Bayode by other officers three (by PC Twort, who was on the same shift as Mr Bayode, PC Copson and PC Haighton) were requested by either Inspector Corton or Sgt Brett and were required to determine what action should be taken in relation to incidents which Mr Bayode agreed took place. One incident related to a perceived failure to give PC Copson support when she was arresting a drugs dealer and another to his refusal to respond at once to a bomb threat, saying he would have a cup of tea first. One report resulted in Mr Bayode being given words of advice and the other two resulted in no further action after Inspector Corton had spoken to Mr Bayode on 18 September 2005. The Tribunal could not accept that the requesting of written reports in order to determine what action to take could amount to a detriment.[8]Similarly the report put in by Sgt Measham related to a matter in which Mr Bayode accepted that his performance had been substandard. Sgt Measham accepted in evidence that though he would in any event have mentioned the matters to Sgt Brett he might not have put in a report had he not been concerned to protect himself and Sgt Brett against any possible future claim by Mr Bayode. There was no suggestion that the report was in any way inaccurate and Sgt Brett took no further action on it. The Tribunal held that the putting in of a written report could not in itself amount to detriment. Again, on the appeal no point was taken in relation to that finding.[9]Mr Bayode did not seek to appeal this part of the decision and no reliance was placed on these reports or the allied note book entries on the hearing of the appeal.[10]This left the PNB entries made about Mr Bayode by PCs Buckley and Martin. Mr Bayode was unaware of the existence of any of the entries until the PNBs were disclosed in the course of the proceedings. He did not assert that any of the entries were inaccurate. It is not a frequent occurrence that officers make entries in their PNBs about their colleagues. It is undesirable that they should do so on a regular basis because it could create an impression that a colleague was being spied on. Whilst an officer may or may not draw the attention of his superiors to matters in his PNB, sergeants should inspect their constables PNBs on a regular basis so that matters recorded in a PNB should come to the superior's notice.[11]The single entry made by PC Buckley related to an incident which he also reported directly to Sgt Brett in which he felt that Mr Bayode had behaved inappropriately to a member of the public in a parking dispute. After further inquiries some weeks later Mr Bayode was in effect exonerated, but (as the Tribunal found) this did not mean that PC Buckley was wrong to report his concerns. The entries which were made by PC Martin related to remarks made to her by Mr Bayode. On one occasion he had said to her "We are talking about you, not to you, woman." On another he queried why she was applying for a post saying that what was required was a "MANager". PC Martin also brought this incident directly to Sgt Brett which in turn led to Mr Bayode receiving words of advice from Inspector Corton. In this instance Mr Bayode acknowledged he had gone too far. The third entry related to comments he made about only keeping pictures of black footballers on his mobile phone.[12]Mr Bayode accepted there were legitimate concerns about his performance at Buxton. These included a tendency to challenge advice and instructions given to him, occasional unpredictable and aggressive behaviour towards colleagues, inappropriate behaviour towards women, the time he took off sick or because he needed to take care of his children, and lack of self-confidence and self-motivation. There were problems with the quality of some of his paperwork (in particular an arrest report and the preparation of two files). However he felt that he was treated less favourably in that matters were reported or recorded which were unnecessary or would not normally have been recorded. In particular he relied on a conversation early in his time at Buxton which he had with the late PC Buckley. He noted it in his own PNB and reported to Sgt Brett and Inspector Corton. It was to the effect that the shift had been told to be wary of him and to record anything that happened in their PNBs. Mr Bayode was told by Sgt Brett (as the Tribunal accepted was the fact) that no such instruction had been given and that things would settle down once the shift got used to him. He said that as a result of the conversation he was upset.[13]Whilst the Tribunal accepted that the PNB entries by PC Buckley and PC Martin (other than the one about the black footballers) might well have been made anyway, it inferred that because they thought Mr Bayode might make allegations of race discrimination they wished to have a record of behaviour which had caused them concern. Those reports could not have been said to have been unnecessary or unjustified. The question that arose from the inference drawn by the Tribunal was whether the reason that the officers wished to have a record amounted to less favourable treatment.[14]In dealing with the law the Employment Tribunal set out or referred to the relevant provisions the Race Relations Act 1976 (sections 1, 2, 3, 4, 54, 54A and 76A). No suggestion is made that the Tribunal failed to consider any relevant provision. In respect of the law the Tribunal said:
"117. As regards victimisation, this occurs if, in any circumstances relevant to the 1976 Act, the claimant is treated less favourably than others because he has done a protected act. The primary object of the victimisation provisions is to ensure that persons are not penalised or prejudiced because they have taken steps to exercise their statutory rights or are intending to do so. This involves identifying the protected act, the less favourable treatment alleged to have occurred because of it, and the reason for the treatment. An issue which arises in this case is whether, put simply, individuals are entitled to protect themselves by recording events because they fear that the claimant will complain or pursue a claim alleging race discrimination. This involves consideration of the decisions of the House of Lords in Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 and St Helens Metropolitan Borough Council v Derbyshire [2007] IRLR 540 . Both cases concerned situations where there was litigation in progress, which is not this case, but the principles are of general application. In Khan, the House of Lords advanced the principle that employers who took honest and reasonable steps to protect themselves pending discrimination proceedings ought not to lay themselves open to allegations of victimisation in that they would be acting not because the employee had done a protected act, but because they needed to protect their position. In Derbyshire, the House of Lords cast doubt on this concept of an "honest and reasonable employer" defence, and the "by reason that" rationale for it. Instead, the House of Lords focussed on the concept of detriment. An unjustified sense of grievance would not amount to detriment; the grievance must be objectively reasonable. Thus an employee could not legitimately complain about a sense of grievance engendered by an employer's reasonable steps to defend itself in litigation. 118. For both race discrimination and victimisation, in this particular case, the claimant must establish that any less favourable treatment amounted to a detriment. "
Detriment" is widely defined, and the Tribunal must be satisfied that a reasonable worker would or might take the view that he had been disadvantaged in the circumstances in which he had to work. Disadvantage has to be judged from the standpoint of the employee, but an unjustified sense of grievance cannot be a detriment. Similarly, to repeat the conclusion in Derbyshire, a sense of grievance engendered by the employer's honest and reasonable conduct may not amount to detriment if it was not in those circumstances objectively reasonable."[15]The Tribunal concluded in relation to this part of Mr Bayode's claim:
"178. The Tribunal agrees with Miss Plimmer that if these PNB entries amounted to a detriment, it would be immaterial that PC Buckley and PC Martin acted out of a desire to protect themselves in the event of a claim, and not from a desire to cause harm to the claimant. But the issue for the Tribunal is whether to make the entries in the PNBs was a detriment for the claimant. The Tribunal cannot find that the mere act of making a written record of issues which concerned PCs Buckley and Martin, where no inappropriate action was then taken in respect of those issues was in itself a detriment. It is not the claimant's case that the entries were inaccurate. The Tribunal acknowledges that detriment is widely defined, and it is to be viewed from the claimant's standpoint, but the Tribunal cannot accept that the entries that were made in themselves amounted to detriment for the purposes of the claimant's race discrimination or victimisation claims. The entries related to matters which concerned them, and the act of making a record could not in the Tribunal's judgment amount to a detriment."
[16]Miss Plimmer for Mr Bayode accepted that the statutory cause of action required both less favourable treatment and that the employee should have suffered a detriment. She submitted that if an employee was treated less favourably in that colleagues recorded matters against him and drew those matters to the attention of supervisors for reasons relating to a complaint of race discrimination he had made or a suspicion that he would complain about race discrimination, such treatment was unlawful discrimination provided that the employee suffered a detriment. This was the case even if those colleagues acted out of a desire to protect themselves in the event of a claim and not from a desire to cause harm. The Tribunal had accepted that proposition. At one point in her argument she appeared to go so far as to submit that whilst it would have been perfectly proper for Mr Bayode to make a note of an occasion which he felt indicated race discrimination or victimisation, it would be impermissible for the other party to make a note of the incident with a view to protecting himself.[17]She submitted that the Tribunal erred in law in considering the less favourable treatment in itself rather than the effect of that treatment upon Mr Bayode in all the circumstances. The passage at para 178 of the judgment where the Tribunal said that it could not accept that "the entries that were made in themselves amounted to detriment for the purposes of the claimant's race discrimination or victimisation" showed the error. The Tribunal should have looked at the effect of those entries on Mr Bayode which, given his particular work history and sickness absence, was profound. The Tribunal should have found that the effect of his shift colleagues' reports and notes amounted to a detriment. It was immaterial that the employer and Mr Bayode's fellow officers acted honestly and reasonably. She made reference to the speech of Lady Hale at para 36 in St Helen's BC v Derbyshire and others [2007] UKHL 16 where her ladyship said that it would be better if the "honest and reasonable employer defence" were laid to rest.[18]Mr Ley-Morgan for the Police submitted that the Tribunal had rightly found there was no detriment. He accepted the wide definition of detriment in MoD v Jeremiah [1987] QB at 104 and referred to Lord Hoffmann's speech in Chief Constable of West Yorkshire v Khan [2001] UKHL 48 at para 53 where he said: ""A person may be treated less favourably and yet suffer no detriment. But, bearing in mind that the employment tribunal has jurisdiction to award compensation to injury to feelings, the courts have given the term 'detriment' a wide meaning. In MoD v Jeremiah [1980] QB 87, 104 Brightman LJ said that 'a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment.'" He also referred to the speech of Lord Hope in Shamoon v Chief Constable of Royal Ulster Constabulary [2003] UKHL11 at paras 34 and 35: "…. The word "detriment" draws this limitation on its broad and ordinary meaning from its context and from the other words with which it is associated. Res noscitur a sociis. As May LJ put it in De Souza v Automobile Association [1986] ICR 514 , 522G, the court or tribunal must find that by reason of the act or acts complained of 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. 35. But once this requirement is satisfied, the only other limitation that can be read into the word is that indicated by Lord Brightman. As he put it in Ministry of Defence v Jeremiah [1980] QB 87, 104B, one must take all the circumstances into account. This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to "detriment": Barclays Bank plc v Kapur and others (No 2) [1995] IRLR 87…."[19]He drew particular attention to the words of Lord Neuberger at para 68 of the St Helen's case:
"An alleged victim cannot establish "detriment" merely by showing that she has suffered mental distress; before she could succeed it would have to be objectively reasonable in all the circumstances …. Distress and worry which may be induced by the employer's honest and reasonable conduct in the course of his defence or in the conduct of any settlement negotiations, cannot (save, possibly, in the most unusual circumstances) constitute a detriment."
He submitted that the inevitable consequence of Mr Bayode's submission was that once an employee knew a colleague had made a previous claim he would be prohibited from making any written record of any poor behaviour of a colleague towards him if he was motivated even to a minor degree by a fear there might be a further claim. Given that there was no complaint about the accuracy of the entries there was no reason why Mr Bayode should have any justifiable sense of grievance about the PNB entries.[20]In our view Miss Plimmer's interpretation of the Tribunal's words in para 178 of its judgment is incorrect. The words "if these PNB entries amounted to a detriment" and "the entries that were made in themselves amounted to a detriment" have to be read in their context. The Tribunal had already made it clear at paras 117 and 118 of its judgment that it recognised that disadvantage or detriment had to be judged from the standpoint of the alleged victim. The Tribunal's words cannot properly be interpreted as indicating that it was looking merely at the words in the PNBs rather than at the effect on Mr Bayode. The Tribunal's view was clearly that Mr Bayode, who did not in any event know of these entries until after proceedings had been started (even though he suspected some entries were being made), could not have had any justified sense of grievance from the accurate records of matters in the officers' PNBs. The reference to "entries … in themselves" was clearly indicating that if these entries had the been used in some way the use might, depending on the circumstances, have provoked a legitimate and reasonable sense of grievance in Mr Bayode.[21]In our judgment there was ample material before the Tribunal from which it could properly come to the conclusion that in the context of this particular case the making and content of the PNB entries did not amount to a detriment and in reaching that conclusion the Tribunal did not fall into any error of law.[22]The appeal is dismissed.