Quarm v Commissioner of Police of The Metropolis (VICTIMISATION DISCRIMINATION : Striking-out/dismissal), Court of Appeal - United Kingdom Employment Appeal Tribunal, May 22, 2019,  UKEAT 0200_18_2205
|Resolution Date:||May 22, 2019|
|Issuing Organization:||United Kingdom Employment Appeal Tribunal|
|Actores:||Quarm v Commissioner of Police of The Metropolis (VICTIMISATION DISCRIMINATION : Striking-out/dismissal)|
Appeal No. UKEAT/0200/18/LA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 16 April 2019
Judgment handed down on 22 May 2019
HIS HONOUR JUDGE AUERBACH
MR D QUARM APPELLANT
COMMISSIONER OF POLICE OF THE METROPOLIS RESPONDENT
Transcript of Proceedings
PRACTICE AND PROCEDURE - Striking-out/dismissal
These were appeals from three decisions.
In 2015 the Appellant made a complaint to the IPCC alleging misconduct on the part of fellow officers. This was referred to the Respondent's Directorate of Professional Standards (DPS) who decided to take no action in relation to it. He presented an ET claim that this was an act of direct race discrimination, victimisation (for having made previous ET claims under the Equality Act) and whistleblowing detriment. He ticked the box on the claim form requesting that a copy be sent to the regulator. The claim form was then sent to the IPCC, which in turn sent it to the Respondent's DPS. They decided to take no action upon it pending the outcome of that ET claim. The Appellant then presented a fresh ET claim in relation to that decision. The ET held that it did not amount to an act of victimisation because, applying Derbyshire v St Helens MBC  ICR 841 (HL) there was no detriment. That decision was upheld. The ET erred in finding that there was in any event no detriment because the outcome would have been no different. Deer v University of Oxford  ICR 1213 applied. But the ET's decision was not dependent on that finding, which was made in the alternative. The failure to take further action after the first ET claim had concluded was said to amount to a further act of victimisation. That claim also failed. That decision was also upheld. The ET had found that the complaint had genuinely slipped off the radar of the case handler. The inaction was not because of the protected act. The first appeal was therefore dismissed.
The second appeal was against the refusal of a reconsideration application by the same Tribunal. That appeal was also dismissed, as the Tribunal had been entitled to take the view that what the Appellant considered to be significant new evidence did not undermine the basis of their original decision.
In 2017 the Appellant sent a dossier to the IPCC containing various allegations of police misconduct. This was referred to the Respondent's DPS who decided not to record or action it. The Appellant presented a claim to the ET that this was an act of direct race discrimination, victimisation, and whistleblowing detriment. At a Preliminary Hearing the ET struck those claims out as having no reasonable prospect of success. In the third appeal, the Appellant appealed that decision.
Held: the ET erred in its understanding of the underlying statutory regime concerning complaints of police misconduct, in finding that the case handler had no knowledge of the Appellant's race or prior complaints, and in its approach to the legal tests to be applied in respect of the underlying claims. This appeal was allowed.
HIS HONOUR JUDGE AUERBACH
These are appeals from three decisions of two Employment Tribunals arising from two separate claims. They involve the same parties and have a common background. I shall refer to the parties as they were (in both cases) in the Employment Tribunal (``ET''), as Claimant and Respondent. The Claimant is a serving Detective Constable, who has over twenty years' service with the Metropolitan Police Service. The proper respondent to work-related claims brought by him in the ET is the Respondent.
The first appeal is from the decision of a Tribunal sitting at London Central (Employment Judge Tayler, Mr J Carroll and Mr M Simon) arising from a Full Merits Hearing on 4 - 7 September 2017, promulgated on 7 September 2017. The second is from the decision of the same full Tribunal, on a reconsideration application, given at a hearing on 15 June 2018 and promulgated in writing on 25 June 2018. The first decision dismissed a claim of victimisation. The reconsideration decision declined to vary or revoke the first decision.
There was also a further application in that case, for reconsideration of that reconsideration decision. That was refused, by a decision of the Employment Judge, because that application was out of time, and he in any event found that it had no reasonable prospect of success. That decision is not the subject of appeal.
On initial consideration on paper, HHJ Martyn Barklem considered the Notice of Appeal pertaining to the first decision of the Tayler Tribunal not to be arguable. The Claimant then requested a hearing under Rule 3(10) of the EAT's Rules of Procedure. HHJ Stacey considered the appeal against the reconsideration decision on paper, and thought it desirable, in those circumstances, that it too be considered at that same hearing. At that hearing HHJ Eady QC accepted that amended grounds of appeal put forward by the Claimant's counsel were arguable, and should proceed to a Full Hearing.
The second appeal is from the decision of a Tribunal sitting at London East (Employment Judge Jones, sitting alone) following a Preliminary Hearing on 12 January 2018, striking out complaints of race discrimination, victimisation and being subjected to detriment on the grounds of protected disclosures. That was promulgated on 27 February 2018. There was an unsuccessful application for reconsideration, but no appeal from that decision.
HHJ Eady QC, who considered the appeal on paper, thought it unarguable. However, the Claimant sought a hearing under Rule 3(10). At that hearing Mrs Justice Elisabeth Laing DBE accepted that all of the points identified in draft amended grounds of appeal tabled by counsel were arguable, and directed that they proceed to a Full Hearing.
At all of the hearings in the ET the Claimant, who was a litigant in person, represented himself. The Respondent was represented by Mr Niran De Silva of counsel. The Claimant pursues his appeals as a litigant in person, but has had the advantage of representation pro bono at EAT hearings by Mr Tristan Jones of counsel. Mr De Silva has again appeared in the EAT for the Respondent. I had the benefit of detailed written and oral arguments from them both.
The Legal Framework
It is helpful at the very outset to set out the relevant substantive statutory framework and some established principles which emerge from the authorities.
Section 39 Equality Act 2010 prohibits (among other things) direct discrimination by an employer against its employee, and provides that an employer must not victimise its employee, in certain ways, including, in both cases, by subjecting the employee to a detriment.
Section 42 makes provision that, for these purposes, a police constable is to be treated as employed by the relevant chief officer in respect of any act done by the chief officer in relation to him. Other provisions have the effect, read with section 42, that acts done by the chief officer's agents, in that capacity, or employees in the course of their employment, are her acts. Accordingly, any conduct of the staff or officers of the Metropolitan Police Service which amounted to victimisation of the Claimant by subjecting him to a detriment would be unlawful conduct for which the Respondent is liable.
It is convenient, therefore, taking my cue from the nomenclature of the statute, and common usage, to refer to the Claimant's working relationship with the Metropolitan Police Service (``MPS'') as his employment, and to the MPS as his employer. I will also use ``the Respondent'' to refer to the MPS itself as well as the Respondent herself, as suits the context.
The definition of direct discrimination is found in section 13 of the 2010 Act. I do not need to set it out in full. The core is in sub-section (1), which provides: ``A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.'' For these purposes, protected characteristics include race.
The definition of victimisation is found in section 27 of the 2010 Act.
(1) A person (A) victimises another person (B) if A subjects B to a detriment because--
(a) B does a protected act, or
(b) A believes that B has done, or may do, a protected act.
(2) Each of the following is a protected act--
(a) bringing proceedings under this Act;
(b) giving evidence or information in connection with proceedings under this Act;
(c) doing any other thing for the purposes of or in connection with this Act;
(d) making an allegation (whether or not express) that A or another person has contravened this Act.
(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.
(4) This section applies only where the person subjected to a detriment is an individual.
(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.
It will be observed that the requirement that the complainant have been subjected to a detriment appears both in the cause of action in section 39 and in the definition of victimisation in section 27. Predecessor provisions defining victimisation referred to ``less favourable treatment''; but in section 27 that was replaced by the reference to detriment. That history, together with the fact that less favourable treatment is also still a feature of the definition of direct discrimination, is why some authorities refer to a need to find ``less favourable treatment''. But...
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