Appeal No.	 EAT/17/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 April 1999

Before
HIS HONOUR JUDGE H J BYRT QC
LORD  DAVIES OF COITY  CBE
MR D J HODGKINS CB

Mr C Williams	APPELLANT

Devon & Cornwall Constabulary	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	Mr Williams
(In Person)	

	HIS HONOUR JUDGE BYRT:	This is a Preliminary Hearing in an appeal against a decision promulgated on 9th November 1998 by an Employment Tribunal sitting in Truro.  On that occasion the Employment Tribunal held that all the Applicant’s claims of sexual and racial discrimination and victimisation be dismissed.  The Applicant, Police Constable Williams, now appeals that decision.

	So far as the relevant facts are concerned; Constable Williams joined the Police Force in 1984 and soon thereafter, formed the ambition of wanting to be a dog handler.  In 1986, he applied for such a position and he was unsuccessful.  In 1989 he applied again and was interviewed by a Superintendent Stone and a Sergeant Rowe.  There was another applicant in contention at the same time.  She was a Woman Police Constable from another division.  Unhappily for Police Constable Williams, the Woman Police Constable was appointed and he was not.  He felt that he had been unfairly treated at that occasion and as a result, took his grievance first to Superintendent Stone and Sergeant Rowe, and ultimately, to a Complaints Board comprising senior officers, Superintendent Stone, Chief Superintendent Allen, who was the Divisional Commander at the time and a Superintendent Smyth.  

	The case Mr Williams advanced before the Employment Tribunal was that he had not got that appointment in 1989 because he had been discriminated against on the grounds of his sex.  The Employment Tribunal rejected that claim on four grounds.  

	First, they made a finding that the Grievance document Police Constable Williams had completed (and we now know that that was in July 1997 in which is set out the burden of his complaints against the Police Force) made no complaints of sexual discrimination in relation to this interview process in 1989.  In fact, they refer to the fact that he states in that document that his intention in making complaint to the Board was “to get some truthful answers”.

	Secondly, they found that there was no such complaint made to Superintendent Stone and Chief Superintendent Allen and Superintendent Smyth.

	Thirdly, they referred to the fact that there was no reference in his IT.1 to sexual discrimination in relation to this interview process in 1989 and they go on to make the express finding that the allegation was first mentioned in oral evidence before them.

	Ultimately, they accepted the evidence of Superintendent Stone and Sergeant Rowe, who had conducted the initial interview, that the reason why the Woman Police Constable was appointed and Police Constable Williams was not was that she interviewed well and he, unhappily, just froze at the interview.  

	The grounds of appeal in relation to that particular allegation is that the Employment Tribunal erred in finding that he made no complaint of sexual discrimination to the Complaints Board and further, he says they overlooked the evidence of a Stewart Jenkins, a fellow police officer, who gave evidence to the effect that he had conversed with him and the latter had expressed the view that he had not been appointed on grounds of his sex.  He also gave evidence to the effect that Police Constable Williams told him that he was going to raise the allegations of sex discrimination with the Complaints Board when he went to see them.  

	The Employment Appeal Tribunal cannot disturb a finding of fact made by the Employment Tribunal unless that finding is so obviously wrong that it amounts to a perverse finding.  We pointed this out to Police Constable Williams and to his credit, he readily appreciated this position.  But that is the difficulty.  This is only a Preliminary Hearing.  We are again, conscious of that and have to ask ourselves whether the thrust of Police Constable Williams’ case, namely that the Employment Tribunal came to a perverse finding is an arguable issue.  It is our view that, having regard to the nature of Mr Jenkins’ evidence, it would have been desirable for the Tribunal to have made an express finding about what they thought of his evidence, but the fact that they did not mention his evidence and indeed, much other evidence which was given in the course of 5 days does not mean that they did not take it into account.

	Our decision, in this instance, is that the allegation of perversity in relation to the claims of sexual discrimination in relation to the 1989 appointment is unarguable.  In consequence, it is our further a finding that it must be unarguable there was a protected act as a result of what happened in 1989.  

	There was a further suggestion that the Employment Tribunal were also wrong in finding that there was no racial discrimination on the same occasion.  That claim depended upon the evidence of Police Constable Williams himself to the effect that when he was before Superintendent Stone and Sergeant Rowe at the interview stage, he overheard one of the officers saying to the other, something about “Welsh” and something about “rubbish”.  Police Constable Williams is Welsh and in consequence, he inferred that the officers were making some disparaging remark about his Welsh origin indicative that it was a factor which resulted in him being treated less favourably than otherwise he should have been.  The Employment Tribunal came to a clear finding that the officers made no such disparaging remarks about the Constable’s Welsh origins and that also is a finding, it is impossible on the Reasons before us to say was a perverse finding.  If there was no protected act on that occasion, it is not possible in law to find victimisation in what thereafter followed.  

	In 1990, the Woman Police Constable left and there was a further interview process in which Police Constable Williams joined.  Again, he was not appointed, but another Police Constable, Police Constable Millington, was appointed instead.  The Employment Tribunal found difficulty in ascertaining who it was who appointed Police Constable Millington and actually went as far as saying that they thought his appointment was somewhat odd.  However, once more, they came to the conclusion that no allegation of sex discrimination or racial discrimination was made in relation to that interview process and in view of the fact that there was no protected act as a result of what happened in 1989, they came to the conclusion that there could be no victimisation either.  

	Police Constable Williams made further applications in 1991, 1993 and 1995 and again, in 1997.  He was not even short-listed for interview on the last occasion.  There was an interview board consisting of Chief Superintendent Edgecumbe and Inspector Mounsey.  Police Constable Williams has said that it is inconceivable that Chief Superintendent Edgecumbe did not know there had been allegations made by him to the effect that he was being sexually discriminated against.  Apparently, a memorandum was sent up, together with the Complaints File to Headquarters Personnel Section to the effect that Police Constable Williams was making such allegations.  What Police Constable Williams says is that it is almost inconceivable that Chief Superintendent Edgecumbe, who came from the Personnel Department, did not know that those allegations were being made by him.

	But the fact is that the Employment Tribunal again came to a clear finding that, at the time when Chief Superintendent Edgecumbe and Inspector Mounsey were considering the various applicants, they did not know that Mr Williams was making allegations or had made allegations in the past based on racial and sexual discrimination.  Accordingly, that being the Tribunal’s findings, it is impossible for Police Constable Williams to establish the allegation of victimisation in relation to that instance either.

	In all the circumstances, we have heard Police Constable Williams address us, if I may say so, in courteous and moderate terms.  He feels a degree of frustration in that the Employment Tribunal who heard this case over a period of 5 or 6 days, accepted the evidence tendered by his superior officers rather than the evidence which he and his 11 witnesses advanced before the Tribunal.  However, it is sometimes difficult for a Tribunal to decide whose version of events they prefer in reaching their decision but that is the responsibility of any Tribunal.  They have to make difficult decisions between parties giving conflicting evidence.

	The role of the Employment Appeal Tribunal is to review the application of law made by the Tribunal below to their findings of fact.  If they err in law, it is for us to put them right in that respect.  In this particular instance, it is our view that the Employment Tribunal came to their decision as a result of making certain clear findings of fact.  We can find no arguable error of law in the way they directed themselves and in those circumstances, we think that this Appeal must be dismissed at this stage.  Accordingly, we make an Order to that effect.