Commisioner Of Police Of The Metropolis v. Nonyelu (Race Discrimination : Comparison) [2010] UKEAT 0010_10_0906

EAT
Commisioner Of Police Of The Metropolis v. Nonyelu (Race Discrimination : Comparison)
[2010] UKEAT 0010_10_0906 · 2010-06-09
[1]This is an appeal by(1) the Commissioner of Police of the Metropolis and(2) the Metropolitan Police Authority, Respondents before the London (Central) Employment Tribunal against the judgment of a Tribunal chaired by Employment Judge Lewzey, promulgated with reasons on 19 October 2009 which upheld part of the Claimant’s, Mr Nonyelu, complaint of direct race discrimination. The Facts[2]The Claimant commenced employment with the First Respondent on 13 May 1985. At the relevant time in 2007 he worked as a Security Officer Manager (SOM) in the Palace of Westminster, where security is provided by a combination of regular police officers and civilian security officers. As SOM in the pool, as opposed to the search team, the Claimant managed civilian security officers.[3]On 8 January 2007 Superintendent Vyse of the Metropolitan Police Service took up a role concerned with the operational deployment and management of police officers, security officers and fire officers within the Palace of Westminster. He very soon concluded that there was too much overtime being worked both by police and security staff. On 26 January 2007 he produced a proposal for minimum staffing levels which would have the effect of reducing overtime and thus saving wage costs. He introduced that policy on 19 February 2007.[4]On 14 December 2006 the Respondents had introduced an Equality Impact Assessment (EIA) policy. Annexed to that policy we see was an EIA Form P570. Mr Vyse’s evidence to the Employment Tribunal was that he was unaware of that policy when he prepared his proposal. He acknowledged that he ought to have been aware of it and thus ought to have completed a Form P570. He did not do so. However, he had received diversity training in the past, he told the Employment Tribunal and had carried out an EIA in his head. The Employment Tribunal appear to have accepted that he did so; in his proposal he records his opinion that no diversity issues arose. However, at paragraph 42 the Employment Tribunal say:
“He (Mr Vyse) must have been aware that he had an obligation to consider it (the EIA policy).”
[5]It is not absolutely clear to us from the Tribunal’s reasons whether the Tribunal rejected his evidence that he was unaware of the actual policy. If they did, that is the subject of ground 3 of the appeal. In the event, for reasons which will become clear, we do not find it necessary to rule on that ground of appeal. The minimum staffing policy led to a reduction in overtime opportunities across the board. At paragraph 48 the Tribunal say this:
“As to the reduction of overtime opportunities, the five highest earners in 2006 were Mr Jaiteh, Mr Rajaratnam, Mr Nonyelu, Ms Long, Mr Wilson and Mr Cameron.”
Pausing there, Mr Sykes tells us, and this is not in dispute, that the first four named were black. “In 2007, they were Mr Jaiteh, Mr Wilson, Mr Rajaratnam, Mr Nonyelu, Mr Cameron and Ms Long. These figures are taken from page 598 and show a significant drop in overtime in 2007. In relation to the claim of direct discrimination, the minimum staffing is a detriment but there is nothing from which we could infer that a hypothetical white SOM would not suffer the same reduction and indeed Mr Cameron also suffered a reduction as did the black SOMs. For these reasons it is the unanimous judgment of the Tribunal that the claim of direct discrimination in relation to the minimum staffing policy fails.” The Tribunal Decision[6]The agreed list of issues arising from the claims of both direct and indirect race discrimination raised by the Claimant are identified at paragraph 8 of the Tribunal reasons. The finding of direct discrimination made by the Tribunal is set out at paragraph (ii) of the judgment in these terms:
“The claim of direct race discrimination succeeds only in respect of the failure to undertake an Equality Impact Assessment in respect of the minimum staffing policy prior to its implementation and the manner of introduction of the minimum staffing policy on 19 February 2007. All other claims of direct race discrimination fail.”
[7]As a technical aside, the Tribunal do not formally identify which of the two Respondents is liable for that unlawful discrimination. Mr Edwards submits that it was the Second Respondent, but it matters not for our purposes.[8]Focussing on the upheld complaint, the Tribunal correctly refer at paragraph 38 to sections 1(1)(a) and 4(2)(b) and (c) of the Race Relations Act 1976 (RRA); direct discrimination on grounds of race.[9]As to the appropriate comparator, for the purposes of section 3(4) RRA, the Tribunal rejected Police Sergeants (paragraph 40) and Mr Wilson, a white SOM in the search rather than pool team (paragraph 41), as actual comparators and instead settled on a hypothetical comparator that is a white Caucasian SOM in the pool team who wished to do overtime (paragraph 42).[10]We see some force in Mr Edwards’ submission that Mr Cameron, a white Caucasian SOM in the pool team (referred to at paragraph 48) who wanted to and did do overtime, precisely fitted that hypothetical profile such that he represented an actual comparator for our purposes. However, the distinction in ultimately immaterial in the present appeal.[11]At paragraph 45 the Tribunal found:
“Mr Nonyelu has suffered a detriment in relation to the introduction of the minimum staffing policy and the failure to undertake the Equality Impact Assessment. On the evidence, the opportunities for overtime diminished with a resultant loss of income. In relation to these detriments, namely the minimum staffing levels and the failure to conduct an Equality Impact Assessment, there is a situation where the Tribunal is in a position where it could draw an inference under the Barton guidelines and therefore the burden moves to the Respondent to demonstrate that they did not commit an act of race discrimination in relation to these matters.”
[12]We should also set out paragraph 47:
“Appendix J at page 593, which is Mr Jaiteh’s report, refers to transparency, parity and equality issues in the context of the sergeants’ review. We do not accept Mr Edwards’ submission that Mr Vyse was unaware of the Equality Impact Assessment. He must have been aware that he had an obligation to consider it. He told us that he did it in his head and that his recommendation was that there were no diversity issues. There has been no adequate explanation for the introduction of the minimum staffing levels and the failure to do the Equality Impact Assessment, and therefore in relation to those matters, the claim of direct discrimination must succeed.”
The Appeal[13]Mr Edwards’ submission is simply this; in the light of the Tribunal’s findings at paragraph 48 the operation of the minimum staffing policy did not unlawfully discriminate between black and white SOMs in the pool team. The failure by Mr Vyse to carry out a paper exercise in Form P570 cannot, by itself, constitute a detriment. That is common ground before us. Nor can the mere introduction of the minimum staffing policy without more.[14]We agree. Therefore,(a) the Claimant suffered no material detriment;(b) if he did, he was no less favourably treated than the hypothetical white comparator (or Mr Cameron); and(c) there was no less favourable treatment on racial grounds. The burden of proof under Igen principles did not pass to the Respondent.[15]Having considered Mr Sykes’ response we entirely accept those submissions. What the Tribunal appears to have done, with respect, is to elevate the mere fact of Mr Vyse’s failure to complete the Form P570 and then introduce the minimum staffing policy as amounting to unlawful racial discrimination; it did not. Upon proper analysis there was no less favourable treatment of the Claimant.[16]In his skeleton argument, Mr Sykes submitted (paragraph 7) that the EIA policy was only for ethnic minority officers, as its preamble states. Upon that proposition being challenged by Mr Edwards, Mr Sykes very properly withdrew it. He was right to do so. We have been shown the policy, it applies, unsurprisingly, to all groups (or “communities” as the policy puts it) equally; to do otherwise would be to adopt an unlawful policy of positive discrimination or to adopt the expression used in the United States “affirmative action”.[17]Mr Sykes sought, in argument, to rework paragraph 48 of the Tribunal’s reasons to show that because black SOMs there referred to did more overtime than the white SOMs, being more flexible, as Mr Vyse accepted in evidence, the minimum staffing policy might adversely impact on those SOMs including the Claimant, had a formal EIA been carried out.[18]In the absence of any cross‑appeal against the findings at paragraph 48 we cannot accept that submission. Nor do we think that paragraph 48 is non‑ Meek compliant, as Mr Sykes sought to argue, again without foreshadowing that argument by way of cross‑appeal or additional grounds for supporting the Tribunal decision.[19]The meaning, it seems to us, is clear. The minimum staffing policy impacted across racial groups within the SOM community, thus, either the detriment of overtime lost opportunity was experienced both by the Claimant and his comparator and, thus, there was no less favourable treatment on racial grounds or at all. Or, the failure by Mr Vyse to complete the Form P570 and then to introduce the minimum staffing policy did not, of itself, constitute a detriment to the Claimant or, if it did, then the self same detriment was suffered by the hypothetical comparator constructed by the Tribunal. Disposal[20]For these reasons this appeal succeeds. All claims now stand dismissed.