Knowledge and approval - When is a will suspicious?
PC Angus Bowler, an officer with 25 years’ service, brought several claims under the Equality Act 2010, in particular unlawful direct race discrimination and victimisation, against Kent Constabulary in the Employment Tribunal.
These claims centred on his thwarted attempts to secure promotion to the rank of Sergeant and a grievance he subsequently brought which alleged race discrimination as the real reason for that failure. The Kent force undoubtedly badly botched the grievance procedure and Bowler brought additional complaints in relation to that as well other acts of victimisation, which he said occurred because of the fact he had raised a race related grievance.
His success at first instance was widely reported in the press, but Kent appealed to the EAT. The crux of their appeal was that the Tribunal had got it wrong in relation to the burden of proof and had, with too little evidence, allowed the burden of proof to shift from PC Bowler to Kent.
In essence, in cases such as this, the law requires a claimant to show a prima facie case that their less favourable treatment or victimisation occurred on the grounds of, for example, their race. The burden of proof would then shift to the respondent to convince the Tribunal otherwise.
However, the EAT emphasised that tribunals cannot “too readily [infer] unlawful discrimination on a prohibited ground merely from unreasonable conduct where there is no evidence of other discriminatory behaviour on such ground”.
That, in essence, was the problem with the Tribunal’s decision and why the EAT allowed the appeal on certain grounds and remitted it back to the Tribunal for further consideration.
Kent’s investigation into the grievance was almost laughably poor:
“[The investigating officer] told [PC Bowler] that he had quoted the Oxford dictionary definition of racism to the relevant officers and they had all confirmed they were not racist. He confirmed that he had not taken advice from HR about the nature of the grievance but had looked at the Race Relations Act, found it convoluted and so resorted to the dictionary”.
The EAT found the investigation was “incompetent” and “lackadaisical”, but this was not sufficient to infer (as the Tribunal did) that there was any discrimination at play. It noted (with a cynicism usually reserved for the more hardened employment lawyers):
“Merely because a tribunal concludes that an explanation for certain treatment is inadequate, unreasonable or unjustified does not by itself mean the treatment is discriminatory since it is a sad fact that people often treat others unreasonably irrespective of race, sex or other protected characteristic”.
Overall, the case is broadly reassuring for employers – Tribunals cannot draw an inference of discrimination purely on the basis of an incompetent procedure and claimants will need to go further than this to shift the burden of proof onto the employer. This will apply equally to cases of victimisation.
However, it is still a cautionary tale.
Firstly, the fact that matters got this far reinforces the need to carry out a fair and proper process – especially when risk factors such as race discrimination are activated. The Tribunal looked at the investigating officer’s lack of training, experience and guidance from HR – all factors which contributed to the botched grievance procedure.
Secondly, in light of the case’s facts, one fears this may be merely a stay of execution rather than a pardon for the Kent Constabulary. The matter has been referred back to the same Tribunal for re-consideration in light of the clarification on points of law. The EAT stressed in its judgment that it should hesitate to interfere with a Tribunal’s discretion, once it has been properly directed as to the law. It would not be unfair to say that this Tribunal, having heard all the evidence, did not seem particularly well disposed to Kent in this case...
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