Statutory construction can be a bit like nuclear fusion – you take an atom of something relatively ordinary and then subject it to such pressure that it explodes into a million flaming pieces and lays waste to your entire afternoon. Employment Tribunals and Courts do the same to words, taking perfectly mundane sentences and phrases and squeezing and prodding and poking them until they go bang and suddenly mean something altogether different. [Note – I suspect that this is not how nuclear fusion works, exactly, but you get the point].
Let us take the simple word “because” as it appears in the discrimination legislation, and specifically Sections 13 and 27 Equality Act 2010. Under those provisions less favourable treatment is discrimination if it is “because of” a protected characteristic and subjecting someone to a detriment is unlawful victimisation if it is “because” that person complained about alleged discrimination. Then apply those words to the facts in Chief Constable of Greater Manchester Police -v- Bailey and stand well back.
Mr Bailey is an ethnic minority detective constable in the GMP. He brought a number of race claims in 2007/8 which were resolved through a settlement agreement. That agreement included a term that Bailey would be seconded for two years to a particular cross-Force team called Titan, its details being unimportant save that participation in Titan entitled Bailey to the use of a police car to travel to and from work.
Three rather than two years later, Bailey’s secondment to Titan was terminated without consultation with him and he lost that entitlement to a car. He started another ET claim on an assortment of grounds including that the termination of the secondment, the withdrawal of the car and GMP’s alleged failure properly to investigate his complaints about all this constituted direct discrimination or victimisation. So the question became whether GMP had taken those steps “because of” his racial origins and/or “because” he had earlier alleged race discrimination. How hard a question could that be?
The Employment Tribunal took a direct path to its answer – Bailey’s secondment could only be terminated because he was in Titan in the first place. He was only there because it was a term of his earlier settlement agreement. That settlement had arisen because of his 2007/8 race claim. Therefore the termination of the secondment could not have arisen were it not for those race claims and so the Tribunal felt itself more or less bound to find that the termination (and associated loss of car benefit) was unlawful victimisation.
The Court of Appeal was distinctly unimpressed. That “because” argument “is wrong in law and, in all [this is judicial shorthand for “none”] respect to the Employment Tribunal, obviously so”. Like the unisex facilities in trendy restaurants, the Court didn’t say, the ET’s decision was a “bog of confusion”.
In the Court’s view, “because” had to mean something more than background context. Perhaps unsurprisingly approving one of his own earlier decisions, the Judge said “The fact that a Claimant’s sex or race is part of the circumstances in which the treatment complained of occurred, or of the sequence of events leading up to it, does not necessarily mean that it formed part of the ground or reason for that treatment”. He relied also on a 1980 case, Seide, where an employee who had been moved to a different department to escape anti-Semitic harassment fell out for non-racial reasons with his colleagues in his new department and was disciplined: it was held that the fact that but for the earlier harassment he would not have been in that department did not mean that the disciplinary action he complained of was taken on racial grounds.
So the Court of Appeal concluded that the secondment had ended because by the original settlement agreement it had only ever been for a finite period, and the loss of the car benefits was simply an automatic consequence of that. As far as the failure to investigate Bailey’s complaint properly was concerned, the Court of Appeal found that the ET had been too ready to assume that this was the product of discrimination rather than mere ineptitude or unreasonableness on the part of the responsible officer and sent the point back for re-hearing.
Lessons for employers
(i) part of the ET’s problem was the lack of clarity around some aspects of Bailey’s case – GMP was criticised for not seeking further particulars at an early stage of his complaint about the investigation. Employers should always try to tie would-be complainants down to specifics early on, as it helps focus both parties’ mind on what is and is not in issue;
(ii) be awake to the distinction between why something happens and the factual context to it;
(iii) a manager being unreasonable or inept is not an automatic pass to his/her having discriminated, nor does it automatically shift the burden of proof to the employer. However, nor will it be accepted by an ET without question, and the more senior and better trained the manager, the tougher and more sceptical that grilling will be. Employers should consider carefully before running that defence whether there is really no more positive case they can advance about why the manager acted in that way.
