Hello, I would like to be able to tell you that our final Case of the Week of the year will be a happy affair to match the seasonal excitement many of us are feeling by mid-December. However, when the case concerns victimisation and race discrimination it is seldom merry. To rub salt into the wounds due to the nature of the Respondent’s work the case is acronym heavy.
Today’s case poses the question can claims of victimisation and race discrimination be mutually exclusive? Or, if one fails do they both fail?
Mr Bailey, the Claimant, is a detective constable for the Respondent, Great Manchester Police. The Claimant described himself as black British/Caribbean ethnicity. Under the terms of a prior settlement agreement in relation to a previous race discrimination claim it was agreed that the Respondent would transfer the Claimant to the Regional Crime Unit (RCU) once a vacancy became available, until then he would be seconded to the Serious Crimes Unit (SCU). Part of the arrangement included a company vehicle and travel expenses in order to travel to SCU headquarters.
Under the terms of the secondment the Claimant needed to pass a surveillance course and an advanced driving course before he could be transferred to the RCU, however, these were not stipulations of the settlement agreement. Three vacancies became available at RCU but unfortunately the Claimant failed the driving test and had yet to complete his surveillance course and did not transfer.
During the secondment at SCU a colleague, whom the Claimant was not comfortable working with, joined the unit. The Claimant raised this issue with the Respondent and also stated that he was disappointed not to have transferred to RCU. He mentioned that the settlement agreement did not require him to pass any courses before transferring to RCU and that he felt this was tantamount to ill treatment. In the duration of his secondment SCU introduced a policy to extend secondments to 5 years.
The Claimant’s secondment at SCU came to an end after two years. He was informed that he would be transferred back to the Respondent instead of RCU as he had not passed the required exams. When he protested the decision he was told that he had been attached to SCU not seconded, he was also told that he would no longer have a company vehicle or travel expenses even though his place of work would not change as his new role at the Respondent would involve working at SCU headquarters.
The Claimant was unhappy with this decision and continued to work at RCU despite not having travel expenses. He believed the Respondent’s handling of the secondment scenario was discriminatory and submitted a statutory questionnaire (the events took place before the questionnaire was appealed in April 2014) to the Respondent comparing himself to two white co-workers.
The Claimant brought six victimisation and discrimination claims: (1) failing to second him to the RCU in breach of the settlement agreement, (2) treating him as attached to SCU rather than as seconded; (3) terminating the secondment without consultation; (4) failing to allow the Claimant to complete 5 years in his seconded post, in breach of the SCU’s policy; (5) withdrawing his use of a car, and; (6) failing to investigate the Claimant’s complaints about these things properly.
The Respondent was unable to call witnesses in relation to who made the decisions for claims 3, 4, 5 and 6, meaning there was no way for the Respondent to argue that the treatment was not in relation to the settlement agreement. Therefore the victimisation claims succeeded.
However, somewhat paradoxically, the Discrimination claims did not succeed. The ET said that as none of his white comparators were under settlement agreements, like the Claimant, it was not possible to determine if the discrimination was due to race.
The Respondent appealed citing the inconsistency that the Claimant could be victimised but not discriminated against. It also said the burden of proof was not fair as they were unable to call relevant witnesses. The EAT dismissed the appeal stating that despite being at face value inconsistent the fact that there were no comparators meant that the ET’s reasoning was sound.
The takeaway point:
If there are no suitable comparators then a discrimination claim is difficult to prove. In this case the fact that the Claimant was the only employee in those circumstances meant he lost his race discrimination claims. However these circumstances proved to be a double edged sword for the Respondent as it meant the Claimant’s victimisation claims were easier to prove, particularly as no evidence was called by the Respondent.
The practical implications this case highlights are always make sure that secondment terms and conditions are fully explained to employees, this must highlight any discrepancies between other forms of communication the employee has received. When a secondment is then concluded be sure to take necessary steps to consult the employee about this and then redeploy them back into the workforce. Read more on victimisation and race discrimination.