In a boost to the cause of inept line management everywhere, the Employment Appeal Tribunal held last month that it is not permissible to extrapolate without more from conduct which is unreasonable, incompetent and lackadaisical to that which is discriminatory.
The point is not wholly new. Back in 1998 the then House of Lords heard argument on behalf of a Mr Zafar that his treatment at the hands of employer Glasgow City Council had been so grim that it could be no longer a matter of mere ineptitude – to get things wrong on such a sustained and concerted basis, said Mr Zafar, the Council would really have to be putting its back into it, and the only reason for doing so that he could see was his race. The Employment Tribunal had found no evidence that any of the comprehensive procedural Horlicks which the Council had made of the disciplinary process was motivated by Mr Zafar’s race, but nonetheless found that because the Council had been unable to explain the mess on any other grounds, it was obliged to infer racial motives into his dismissal. The Lords disagreed – to shift onto the employer the requirement to explain even the most grievously mishandled termination process there still had to be something, almost however small, to justify the conclusion that it could have been discriminatory. A very bad day for the Council witnesses (“Racially-motivated or olympically incompetent? Do take your time”), but ultimately “acquitted” on the not very attractive but presumably very common grounds that some incompetence is just incompetence and not the manifestation of conscious or unconscious bias.
Which brings us to Kent Police v Bowler in March. Bowler brought a variety of claims against the Kent Force arising from its handling of certain race discriminations he had made, including that his original grievance investigation had been botched on racial grounds and that he had later suffered further disadvantage in retaliation for it. How about this for a rigorous and forensic examination of a race discrimination grievance: the investigating officer had “quoted the Oxford dictionary definition of racism to the relevant officers and they had all confirmed they were not racist. He confirmed 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. He had no training in considering grievances and had never done one before. His equal opportunities training was some time ago. He accepted that [Bowler] raised matters with him…about incorrect details that he failed to amend in the report and said this was because [I just love this bit] …it was better to get the grievance report out quickly than to take longer getting it right“.
However, although this clearly fell far short of reasonable management standards, there was no evidence that the investigator’s handling of it was biased, and so it was not permissible for the Employment Tribunal to have inferred racial motives purely from the “sheer incompetence” he had demonstrated.
But note that the “something” referred to above need only be very small. In considering another aspect of Bowler’s complaints, a different Officer’s report made irrelevant and misleading comments about a race discrimination claim brought not by Bowler, but by his internal representative, another ethnic minority Police Officer. Again, the relevant Detective Sergeant was conducting his first internal investigation, but here the Employment Tribunal found that the comments went beyond inexperience to evidence a pre-conceived view that ethnic minority Officers were over-sensitive and too keen to allege race discrimination without actual foundation. That was enough to shift the burden of explaining that particular issue to Kent Police, an onus it had failed to discharge.
In relation to the victimisation claim, the EAT was clear – you could not victimise, consciously or unconsciously, if you were not aware of the act you were said to be responding to. It was not OK for the Employment Tribunal to have inferred that knowledge from unreasonable treatment alone. After all, said the EAT in reflective mood, “It is a sad fact that people often treat others unreasonably irrespective of race, sex, or other protected characteristic”.
Lessons for Employers
Bowler is absolutely stuffed with examples of things not to do in terms of good ER management. However, provided that your witnesses’ earnest evidence of their own ineptitude is accepted, it may offer some limited hope of avoiding a discrimination finding. That said, Bowler also shows that it will take very little indeed by way of evidence of possible bias to hole that defence below the waterline, and it is probably not overstepping the mark to suggest the greater the level of incompetence claimed, the harder the Tribunal will strain to find that tell-tale “something”.