THE CHIEF CONSTABLE OF KENT CONSTABULARY v MR A BOWLER [2018] UKEAT 0308_17_1201

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2018] UKEAT 0308_17_1201Case No Appeal No. UKEAT/0308/17
Between
THE CHIEF CONSTABLE OF KENT CONSTABULARYAPPELLANTMR A BOWLERRESPONDENT
Before
Mrs Justice SimlerDate 12 January 2018
[1]APPEARANCES For the Appellant MR ROBERT GRIFFITHS (One of Her Majesty's Counsel) Instructed by: Kent County Constabulary Legal Services Department Sutton Road Maidstone Kent ME15 9BZ For the Respondent MS KATE ANNAND (of Counsel) Instructed by: Slater and Gordon Lawyers Haywood House North Dumfries Place Cardiff CF10 3GA SUMMARY PRACTICE AND PROCEDURE The Respondent sought to challenge a case management order made by the Employment Tribunal following an appeal that remitted allegations of unlawful victimisation be redetermined. The order permitted the parties to adduce additional evidence on the issue of knowledge of the protected act.[2]The appeal failed. The order made by the Employment Tribunal did not exceed its jurisdiction. The Employment Appeal Tribunal's Judgment expressly anticipated the possibility of additional evidence being heard and the order did not limit this possibility.[3]Further, in the unusual circumstances of this case, the order was a permissible option and well within the case management discretion available to the Employment Tribunal. THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT) Background Facts "145. Issues 9e to h refer to the way in which Mr McClean treated the Claimant. The Tribunal could find no other reason but the grievance. There was no justification for suggesting that the Claimant would need six months to learn a job he had done for years; neither was there any justification that he could not visit the French customs, no others had that restriction. The Respondent agreed that the arrest made by the Claimant was significant; it was unclear then why his manager would not want to commend him on it in his appraisal, and simply say that he could 'raise it himself'. The performance grade was an example of a pedantic approach that was not merited in the circumstances. The claim was upheld." "101. … The Tribunal heard the evidence and I am confident that it will reconsider the issues required to be addressed in light of this judgment, and will do so fairly and professionally. Given that I am remitting to the same Tribunal, I would anticipate that no further evidence will be necessary, and any further hearing can be restricted to legal submissions. However, ultimately, it will be for the Tribunal to determine whether further evidence is to be entertained and it will no doubt wish to consider representations from the parties as to whether that should be done or not in this case.""10. … There was no dispute that he knew about the grievance; his evidence was that he did not know 'the details'. He was asked one question about whether he knew that the grievance was about race, and he said 'no'.11. The Tribunal was not addressed on his knowledge of the detail of the grievance, and specifically whether he knew it was about race, so our attention was not drawn to that; the emphasis by the Respondent at that stage was that the matters relied upon were not detriments. We found that they were detriments.12. My understanding is that the EAT has in effect (although not in terms) asked the Tribunal to consider whether Mr McClean knew that the grievance was about race, and whether he acted in the way that we found he acted, because of that knowledge." Further at paragraph 15 the Employment Judge said:
"15. I indicated to the parties that it was never put to the Tribunal that it was necessary for Mr McClean to have known that the grievance was about race, and so this was not a question considered or addressed by the Tribunal at all, once the Respondent conceded that there had been protected acts. This was not a case where it was denied that Mr McClean knew about the grievance; neither was it denied that the grievance was a protected act. However, although there appears to be no case law on the point, the Claimant has accepted, and so must the Tribunal, that the EAT requires the Tribunal to consider whether he did know that it was about race."
The Appeal Conclusion