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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Johal v. Crown Prosecution Service [2003] UKEAT 0185_03_2509 (25 September 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/0185_03_2509.html Cite as: [2003] UKEAT 185_3_2509, [2003] UKEAT 0185_03_2509

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APPEARANCES

 

For the Appellant	MR DAVID BEAN QC Instructed by: Lambeth Law Centre 14 Bowden Street Off Cleaver Street Kennington London SE11 4DS
For the Respondent	MR BRUCE CARR (of Counsel) Instructed by: Messrs Pinsent Curtis Biddle Solicitors 3 Colemore Circus Birmingham B4 6BH


 


HIS HONOUR JUDGE ANSELL

1. This is an appeal from a decision of an Employment Tribunal who over a period of in excess of 30 days last year heard issues of racial discrimination, victimisation and detriment on the grounds of protected disclosure, raised by the Appellant in three Originating Applications. In a reserved decision sent to the parties on 5 December 2002 and running to some 107 pages, all the complaints were dismissed.
2. By a Notice of Appeal received on 16 January 2003 the Appellant set out six discrete grounds of appeal detailed at some length, including allegations of bias on the part of the Employment Tribunal Chairman.
3. The matter came before this court at a Preliminary Hearing on 14 May 2003 (Mr Recorder Luba QC presiding), when Mr Bean QC (who did not appear below) appeared on behalf of the Appellant as he has done before us. At that time he identified some eight alleged errors of law on the part of the Tribunal which he placed before the Preliminary Hearing in the form of an amended Notice of Appeal.
4. Leave for this hearing was given solely in relation to the last ground 8 which arose out of the allegation of alleged victimisation, contained in the third Originating Application put forward by the Appellant and related in particular to an article which had appeared in The Independent newspaper on 3 June 2000. As a result of the appearance of that article in The Independent newspaper the CPS had decided to launch and pursue an investigation into the circumstances of the publication of that article and appointed an investigator.
5. The point alleged by Mr Bean QC before the Preliminary Hearing was that the alleged giving of information about racial discrimination in the CPS to the journalist of The Independent newspaper by the Appellant was a protected act under section 2 of the Race Relations Act 1976 and thus, as a result, the Employment Tribunal had erred in its approach on the question of comparators in relation to the victimisation claim.
6. No issue appears to be at the Preliminary Hearing as to whether the disclosure to The Independent newspaper as a protected act was an issue raised before the Employment Tribunal. Mr Bean contends that it was raised. Mr Carr for the Respondents contends that it was not an issue before the Tribunal and therefore cannot be raised before us. It is this particular issue which has taken up much of the argument in the hearing before us. Neither party has contended that the permission given at the Preliminary Hearing prevents the Respondents raising the issue before us. This must be the correct approach, particularly as the Preliminary Hearing proceeds on an ex parte basis. This issue thus necessitates some consideration by us of how the issue of victimisation was presented to the Employment Tribunal.

The Statutory Framework

7. Section 2 of the Race Relations Act 1976 provides as follows:

2 (1) "A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has –

(a) brought proceedings against the discriminator or any other person under this Act; or

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or

(c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or

(d) alleged that the discriminator or any other person has committed an act which (whether the allegation so states) would amount to a contravention of this Act.

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith."

The acts allegedly carried out by the person victimised, set out in (1) (a) to (d) are often termed 'protected acts' and we shall use that expression in this judgment.

Background Facts

8. The Appellant was at the material time employed by the Respondent as a Senior Crown Prosecutor. As such he was subject to the Respondent's Statement of Ethical Principles which included obligations in respect of confidentiality (see paragraph 8.15 of the Extended Reasons).
9. On 14 January 2000 the Appellant submitted a complaint under the Respondent's Equal Opportunities and Workplace Bullying Complaints Procedure ("EO and WBCP") in which he set out allegations of victimisation against various colleagues including his Line Manager, Mrs Sealeaf and Messrs Prosser and French, both Senior Crown Prosecutors.
10. Mr Cameron, from the Respondent's Personnel Directorate in London conducted the investigation of his complaint. That investigation into certain aspects of the Appellant's complaint was completed by 19 March 2000 and Mr Cameron concluded that the Appellant had not been victimised by Mrs Sealeaf, but that Mr French had behaved unreasonably and was guilty of unprofessional conduct towards the Appellant. Mr Prosser was found by Mr Cameron to have sworn at the Appellant. An allegation of racially offensive language was not substantiated. He recommended that disciplinary proceedings be considered against Mr French.
11. The report was sent to Mr Seehra, the Respondent's Director of Human Resources, adding in his covering memo that:

"The report ought to remain confidential to the parties to the complaint but I have no doubt that the content will become known and the recommendation will be public knowledge causing further distress to all concerned."

The report was then disclosed to all relevant parties and a covering letter dated 19 May 2000 was sent to the Appellant which stated that:

"As the report mentions staff by name, I would ask you to treat it as a confidential document and not copy it or discuss the contents with anyone other than your trade union representative."

Similar levels of confidentiality were expected of all concerned.

12. Within days of the report the Appellant received a telephone call from a journalist from The Independent newspaper. The Tribunal's fact finding is as follows:

11.31 "On about 23 May 2000, Robert Verkaik a journalist from The Independent newspaper, contacted the applicant asking about the allegations relating to the anonymous letter and telephone calls, the police investigation and the applicant's grievance complaints. Even if initially doing no more than confirm details the journalist already appeared to know rather than giving him new information, the applicant had no hesitation in answering his questions. He went on to tell the journalist that there was a live investigation by the police into the sending of the anonymous letters purporting to come from West Midlands Police, which he described as "hate mail" and that the perpetrators may have been racist and of his own suspicions that it may well have been an "inside job", i.e. that a member of CPS staff may have written the letters, but went on to say that the police investigation was to determine who was responsible. He confirmed to Mr Verkaik that there was an investigation into allegations of racism going on in the CPS but that he did not think that would interest Mr Verkaik as the respondent was trying to "white-wash" the whole thing. In answer to the question whether he was going to bring a race claim against the respondent he said he was considering doing so with his solicitors and that he had already lodged a complaint with the CRE.

11.32 A few days later, the applicant had a 2^nd telephone conversation with Mr Verkaik. He had by then spoken to his solicitors, and tried to discourage publication in the newspaper when a criminal investigation was ongoing and since it might prejudice any race discrimination claim he may bring. However, Mr Verkaik told him that his newspaper believed there was a public interest in publishing at that time."

There were two further telephone calls between the Appellant and the journalist and the Appellant agreed to have his photograph taken for the purposes of an article in the newspaper.

13. On 2 June 2000 Mr Cameron learned from the CPS Press Office that a journalist from The Independent had contacted it seeking confirmation of the background to and facts of its article, and particularly of the Appellant's status. Mr Cameron immediately telephoned the Appellant to tell him that there might be an article in The Independent, being concerned about the Appellant's reaction to such article appearing. He thought the Appellant might be very distressed to learn that his complaint was likely to be made public in the press. The Appellant said nothing to Mr Cameron to indicate that he already knew an article was to appear. Mr Cameron was left with the impression that he had broken the news of a possible article to the Appellant.
14. The article duly appeared on Saturday 3 June 2000 and recorded details of Mr Cameron's investigation stating that the Respondent was considering disciplinary action against three members of staff and that the Respondent had confirmed that there was a racial element to the enquiry which centred on bullying and victimisation.
15. Mr Cameron saw the article on 5 June 2000 and he felt angry and upset, particularly because he felt that the Appellant with whom he had previously sympathised had completely failed to be open with him about his prior knowledge of the newspaper article and he genuinely considered he could no longer carry out a fair and independent enquiry.
16. On 7 June 2000 Mr French complained to the DPP that it had been a breach of confidentiality. The initial reaction of Mr Seehra and Mr Blundell (Chief Crown Prosecutor for CPS Midlands) was one of reluctance to launch any formal investigation, but it was agreed that Mr Blundell would speak to the Appellant informally.
17. However, a formal protest by Mrs Sealeaf's husband on 11 June led Mr Seehra and Mr Blundell to the conclusion that the matter would now have to be investigated under the Respondent's formal complaint procedures. That decision was taken on 12 June which was the same day that the Appellant presented the first of his three Originating Applications to the Employment Tribunal in which he made a substantial number of complaints of race discrimination. A second application was to be presented on 8 January 2001, again making allegations of racial discrimination.
18. By letter of 29 June 2000 the Appellant was notified by Mr Blundell that there would be an investigation into the events surrounding the publication of the article. The investigation was to be undertaken by Miss Pat Hignett, Personnel Officer in the Service Centre for CPS Merseyside, who would be asked to consider whether there had been an unreasonable breach of confidentiality and trust and by whom.
19. On 10 July 2000 Mrs Sealeaf made a complaint against the Appellant under the Respondent's EO and WBCP and the investigation of that complaint was added to Mrs Hignett's remit. Those investigations continued over into 2001 but were never concluded.
20. The third complaint alleging racial discrimination and victimisation was presented on 1 June 2001. That complaint included the allegation that the Appellant's communication with The Independent amounted to a protected disclosure within the meaning of section 43G of the Employment Rights Act 1996 and that the subsequent investigations amounted to a detriment within section 47B.
21. We now propose to consider whether the contention that the disclosure to The Independent journalist amounted to a protected act was or was not dealt with in the documents placed before the Tribunal and then to consider how the Tribunal dealt with the issue.

IT1

22. The Appellant's complaint was set out thus:

1 (iii) "Prior to this article being published, I had been contacted by Mr Verkaik on or about 23 May 2000 and asked to comment on allegations that the police were investigating the Crown Prosecution Service as the possible source of the article. I advised him of the bare facts of the situation, which he already knew, namely that the police were investigating both the Smethwick police and CPS staff in connection with the anonymous letters. I also confirmed to him that the CPS were conducting an internal investigation into my complaints of racial harassment and victimisation. He asked whether a photograph could be taken of me, and I agreed to do this. I did not see the article prior to its publication, and in particular was in no sense responsible for the headline.

…

(vii) I had previously made allegations of race discrimination against the CPS as a result of which I lodged Tribunal applications claiming race discrimination on 12 June 2000 and 8 January 2001. In my allegations and the Tribunal allegations I had referred to Mrs Sealeaf's role in the way that I had been treated.

(viii) I maintain that the launching and pursuit of the two internal investigations by Mr Blundell amounts to race discrimination. I do not consider that he would have treated a white employee in the same way.

(ix) Further or in the alternative, I maintain that the launching and pursuit of the two internal investigations was due to my having made allegations of race discrimination and lodged Tribunal applications claiming race discrimination.

(x) The investigations by Patricia Hignett have continued to date. Ms Hignett is still looking to interview me in connection with her enquiries. Since 29 June 2000 I have had to work with the threat of these two investigations hanging over me. I have found this worrying and oppressive, and it has caused me great anxiety. It has contributed to my extreme stress and anxiety caused by the incidents of race discrimination which formed the subject of my previous two Tribunal applications.

(xi) I also maintain that my communication with The Independent journalist amounts to a protected disclosure within the meaning of section 43F of the Employment Rights Act 1996. The subsequent investigations amount to a detriment within the meaning of section 47B of the 1996 Act."

23. Mr Bean suggests that the wording of (ix) above and in particular the phrase "having made allegations of race discrimination" includes the allegations made to The Independent paper. However, if one reads paragraph (ix) in conjunction with paragraph (vii) we agree with Mr Carr's contention that the allegation of race discrimination thus referred to the grievance procedure leading to the Cameron investigation.
24. It is also significant that he specifically identifies the communication with The Independent as a protected disclosure under the Employment Rights Act 1996 but does not specifically identify it as a protected act under the Race Relations Act 1976.

Appellant's Witness Statement

25. As part of the documentation placed before us the Appellant's solicitor included an extract of the Appellant's witness statement. At paragraph 200 of that statement the Appellant said this:

200 "I was facing a threat of disciplinary action in respect of The Independent Newspaper article and also in respect of the counter-complaint of harassment made by Mrs Sealeaf against me and I found this to be worrying and oppressive. I considered that I was being victimised for bringing a race tribunal claim against my employers. I felt that I was being made a scapegoat for highlighting racism in the area…

…

204 Robert Verkaik of The Independent approached me after having been appraised of my complaints by someone else. He did not declare his source. I took legal advice and afterwards asked him not to run the story because there was an on-going criminal investigation. I was very unhappy about any proposed article.

…

206 Mr Cameron contacted me on 2 June to warn me that The Independent were investigating a story about my complaints against the CPS. He said that I was still employed by the CPS ie I should keep my mouth shut. He said that he had confirmed to The Independent that they had conducted an equal opportunities complaint investigation into my complaints, even though I thought that the investigation was "confidential" and it might be prejudiced (my fear) because of the article. He confirmed to The Independent that the CPS was considering disciplinary action against "three" members of staff who were subject to my complaints. He also confirmed to the journalist that the CPS had asked West Midlands police to conduct a criminal investigation into the hate mail.

207 Mr Cameron has not been subjected to a disciplinary investigation because of his disclosures of confidential and prejudicial information, which were reported and published. I have been and continue to be. This is victimisation."

26. Again, we are satisfied that the Appellant in his witness statement was not specifically highlighting the alleged disclosure to The Independent as a protected act. Indeed, the tenor of the witness statement was to down play the extent of his involvement with The Independent journalist and to suggest that Mr Cameron and/or the Respondent's Press Officer had been responsible for the disclosure and breach of confidence.

List of Issues

27. The agreed list of issues placed before the Tribunal in relation to the third Originating Application were as follows:

14 "Was Mr Johal treated less favourably by the CPS than others in materially similar circumstances were (or would have been) treated on grounds of his race and/or did the CPS treat Mr Johal less favourably in any, and if so what, respect than they treated or would have treated a comparable person in the circumstances by reason that Mr Johal had brought proceedings against the CPS (and/or done some other protected act) within the meaning of section 2 (1) (a) RRA 1976, in that:

(a) The CPS decided to launch and pursue an investigation into event surrounding the publication of an article in The Independent on 3 June 2000, and Patricia Hignett was appointed to carry out the investigation.

(b) On 21 July Patricia Hignett advised that as well as the above investigation into circumstances surrounding The Independent article, she would also investigate a complaint made by Julie Sealeaf against Mr Johal.

(c) Mr Johal had to work with the threat of two investigations hanging over him.

(d) Was Mr Johal kept at home waiting for a job with nothing to do and/or was there delay in finding a suitable vacancy in London for Mr Johal between 6 November 2000 and 3 April 2001 which amounts to less favourable treatment?

15 If there was less favourable treatment in any of these respects, was the treatment on the grounds of Mr Johal's race and/or by reason that he had done a protected act?

16 Did Mr Johal suffer any, and if so what, detriment?

17 If so, did the CPS take such steps as were reasonably practicable to prevent its employees from doing the acts complained of, or from doing in the course of their employment acts of that description (within the meaning of section 32 (3) RRA 1976)?

18 Are any of these complaints out of time in any event?

19 Did Mr Johal's communication with The Independent amount to a protected disclosure within the meaning of section 43G Employment Rights Act 1996…? Did the subsequent investigations amount to a detriment within section 47B ERA?"

28. Again, these issues did not specifically identify the disclosure to The Independent being a protected act under the Race Relations Act 1976. Mr Bean argues that the phrase "and/or done some other protected act" raises the possibility of other protected acts. We are satisfied that that phrase related to the complaint under the Complaints Procedure being such a protected act which was in fact the only protected act that was operative at the time the decision was made to launch the Hignett investigation, since the existence of the IT1 was not known to Messrs Blundell and Seehra until a few days after 12 June. The instigation of those proceedings was, however, an operative protected act for the second part of the victimisation, i.e. the inclusion of the Sealeaf complaint within Mrs Hignett's remit.

Appellant's Closing Submissions

29. Paragraph 3 of the closing submissions prepared by Mr Herbert, Counsel who appeared on behalf of the Appellant below, set out the position as follows:

3 "Furthermore in respect of the Applicant being the subject of investigation in respect of the Independent article which appeared on 4 June 2000 and in respect of the Respondent's failure to enable him to return to work as alleged in the third IT1. He claims that his treatment amounted to victimisation in contradiction of Section 2 sub section 1…

4 The protected acts claimed by the Applicant are namely the grievance lodged by the Applicant on 14 January 2000 under the CPS Equal Opportunities and Workplace Bullying Procedure…The lodging of the first IT1 on 12 June 2000 was also a protected act as is the lodging of the second IT1 on 8 January 2001."

30. Mr Bean suggests that the possibility of the disclosure to The Independent being a protected act is raised within paragraph 3 of the submissions and that paragraph 4 should properly have read "the other protected acts…" We do not read the submission in that way and agree again with Mr Carr that paragraph 4 is abundantly clear in its meaning and does not include the disclosure to The Independent as a protected act.
31. Mr Bean highlights two further paragraphs in the submissions:

30 "The Applicant alleges that the lodging of the grievance claim was a protected act and the article in the Independent was also a protected act seen as such by the Respondents. Similarly the lodging of the IT1 on 12 June 2000 and a subsequent IT1 on 8 January 2001 were protected acts."

197 "It is submitted therefore that the decision by Mr Blundell and Indi Seehra to change the informal inquiry with Mr Johal into a formal disciplinary investigation was performed not because of the level of the complaints but was a change of direction and court primarily set in train as victimisation of the applicant for having brought the grievance and the matter having been referred to in a national newspaper. It is submitted that in any event the matters as mentioned in The Independent are not attributable to Mr Johal in any event and that the appearance of Mr Johal in the photograph ought not to have triggered a formal disciplinary investigation of the sort set in train by the respondent…"

32. Mr Bean suggests that this is a clear reference to the possibility of the disclosure to The Independent being a protected act, particularly as the wording of section 2 suggests that the act can be protected if the discriminator "suspects that the person victimised has done…" Mr Carr suggests that reference to "seen as such by the Respondents" was because the Appellant was not accepting that anything in the Independent was attributable to him thus he was certainly not inviting the Tribunal to consider that his conversations with The Independent could amount to a protected act, particularly set against the clear position that had been set out in paragraph 4 of the submissions, to which we have made reference.

Respondent's Closing Submissions

33. In her closing submissions Miss Simler, who appeared below, set out the position on this issue as follows:

145 "The comparator for the purpose of this exercise is a white person with a background of internal complaints of race discrimination whose posed photograph was published in the national press (for race discrimination purposes); and a Prosecutor without any background of race complaints or protected acts, whose posed photograph was published in the national press (for victimisation purposes).

146 As to the former comparison, Mark Addison was unable to give the Tribunal any actual examples of comparator cases he had been involved with, but his evidence was clear. He said "my view is we would have treated such a case in exactly the same way. The difference would have nothing to do with the race of the individual concerned – if there was no background of race complaints we would not have had the same reluctance to investigate." On the question of the "victimisation comparator" he said there would not have been any reluctance to investigate and the CPS would have moved to an investigation much more quickly. He said that there is evidence for this in the CPS – where there are leaks an investigation is invariably mounted. Indi Seehra gave similar evidence."

34. Again, we read those paragraphs as referring to the grievance procedure as the protected act rather than a disclosure to the newspaper.

Tribunal Decision

35. The Tribunal's decision in respect of the victimisation allegation was contained in paragraph 19 of their decision and we set out the relevant paragraphs:

19.5 "The Tribunal accepted the launch (but not the continuation) of the investigation as less favourable treatment amounting to a detriment. There was no actual comparator for the direct race discrimination claim. The Tribunal considered that the appropriate hypothetical comparator for the race discrimination complaint was a white SCP, named and photographed I an article in the national press, who had himself raised a grievance including racial discrimination claims against colleagues and management (at a time of great sensitivity within the CPS to race discrimination claims) and who had then been notified of the outcome of part of that grievance, having at the start of the process had confidentiality impressed upon him and recently had that reinforced by Mr Cameron. The Tribunal had regard to the evidence from Mr Seehra and Mr Addison of the very strict approach within the Respondent to matters of confidentiality. The Tribunal was wholly satisfied on the evidence of Mr Blundell, Mr Seehra and particularly of Mr Addison that a disciplinary investigation of this nature would have been launched against such a white prosecutor suspected of having breached confidentiality to a journalist in like circumstances. The Tribunal entirely accepted that the Respondent's explanation in this regard and drew no adverse inference of less favourable treatment on racial grounds.

19.6 In respect of the victimisation complaint, again there was less favourable treatment amounting to a detriment in the launch of the disciplinary investigation. At the time when the decision to launch an investigation was taken, on 12 June 2000, only the first protected act, the making of an EO & WBCP by the Applicant, was known to the Respondent. The Tribunal considered that the proper comparator was a prosecutor who had never done any protected act but who had been named and whose photograph had been displayed in a national press article in circumstances giving rise to the suspicion that the SCP had himself "leaked" information to the newspaper journalist. The Tribunal found that the launch of the investigation was not by reason of the protected act; it was because of the suspected breach of confidentiality and that the Respondent would have commenced such an investigation against any prosecutor who had not done a protected act. The Tribunal again accepted the evidence of Mr Blundell, Mr Seehra and Mr Addison and concluded that, but for the protected act, the decision to launch a formal disciplinary investigation rather than for Mr Blundell to speak to the Applicant informally may have been taken earlier.

…

19.8 So far as the victimisation complaint is concerned, the Tribunal found that the launch of the investigation was by reason of Mrs Sealeaf making her formal complaint under the EO & WBCP and not by reason of the Applicant having done the protected acts (the second protected act, in the form of his presenting his 1^st application, having by then been committed)."

36. The Tribunal also then dealt with the protected disclosure claim under the Employment Rights Act 1996 and made their findings thus:

20.2 "Had the Tribunal found the claim in time, it would have dismissed the protected disclosure detriment claim in any event, preferring the Respondent's submissions to those of the Applicant in opening. It found the Applicant's case equivocal, with him on the one hand contending that mere confirmation in response to questions put by the journalist did not amount to disclosure although allowing himself to be photographed could be regarded as a protected disclosure, but nonetheless seeking to rely upon the statutory provisions. The Tribunal concluded that what the Applicant stated in his 3^rd application and accepted in evidence he had told the journalist (Paragraph 11.31 above) could certainly amount to a qualifying disclosure within section 43B (1) (a), in respect of the allegation of commission of a criminal offence (the sending of anonymous letters and telephone calls) and (b), in respect of an allegation of failure to comply with a legal duty to protect him from race discrimination. The Applicant claimed he had made a protected disclosure within section 43G and the Tribunal would have found that he met the requirements of section 43G (1) sub-paragraphs (a), (b) and (c) and also of (d), by virtue of a prior disclosure to the employer under section 43 (2) (c) (i)."

37. Mr Bean contends that the Tribunal were in error in that they failed to deal with the Appellant's case that the disclosure to The Independent was in itself a protected act. We cannot accept that submission for two reasons:

(1) As we have endeavoured to identify, save for one ambiguous reference in the Appellant's closing submissions, there is no other reference to the disclosure to The Independent being a protected act; and again we make reference in particular to paragraph 4 of Appellant's closing submissions, as well as the agreed list of issues;

(2) Bearing in mind that the Tribunal's decision ran to some 107 pages, covering all the issues of fact and law with great care, we find it hard to accept that they would have overlooked this issue had it been placed before them.

Notice of Appeal

38. Paragraph 26 of the original Notice of Appeal dealt with the victimisation claim as follows:

26 "In respect of paras 19.5, 19.6, 19.7, 19.8 and 19.9 and 19.10, the Tribunal failed to consider whether the Respondent was influenced by unconscious discrimination. The Tribunal erred in not finding victimisation and detriment to the Applicant."

39. Thus that document failed to identify the issue of the protected act as a ground of complaint. Even Mr Bean's amended grounds of appeal do not seek to identify the specific complaint he now makes which is that the Tribunal failed to deal with the issue, it having been raised before them.
40. In conclusion on this aspect, we are quite satisfied that the issue of the disclosure to The Independent being a protected act was not one that was placed before the Tribunal for their consideration. Both parties before us agree that if that is the finding that we make then the issue can not be taken before us: see Kumchyk v Derby City Council [1978] ICR 1116.
41. In any event, if we are wrong on this issue, and that The Independent article did represent a protected act, Mr Bean argues that the Tribunal therefore adopted the wrong comparison under section 2 (1) of the 1976 Act, in accordance with the principles set out in Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065. Thus, in order to identify less favourable treatment a comparison must be made between the Appellant and someone who has not carried out the protected act, i.e. speaking to a newspaper about alleged racial discrimination.
42. Both Counsel agree that the correct approach identified in Khan is that in order for victimisation to be established there are two principal steps:

(1) Less Favourable Treatment

This is established by comparing the treatment of the Applicant to that of someone who has not carried out the protected act. Mr Carr concedes that if the newspaper article was a protected act the Appellant would have been treated less favourably.

(2) By Reason That

The second step is to identify whether the less favourable treatment was "by reason of the protected act". It is in the application of that second step that there is disagreement between Counsel as to the correct approach.

43. Mr Khan was a Detective Sergeant for West Yorkshire Police, of Indian origin. He had made a number of unsuccessful applications for promotion to Inspector and in September 1996, following a further rejection, he complained to an Employment Tribunal that he had been discriminated against on racial grounds. Before his complaint was heard he applied for an Inspector's post in Norfolk Police and that police first asked West Yorkshire police for an opinion about his suitability. West Yorkshire declined to give a reference on the grounds that he had an outstanding Industrial Tribunal application against the Chief Constable for failing to support his application for promotion.
44. The House of Lords held that in order to determine whether there had been less favourable treatment, the statute called for a simple comparison between the treatment afforded to the complainant who has done a protected act and the treatment which was or would be afforded to other employees who had not done a protected act. Applying this approach the Applicant Mr Khan had been treated less favourably than other employees and that references were normally provided on request for members of the force seeking new employment. However, they held that the reference was not withheld by reason that he had brought discrimination proceedings but rather because the employer temporarily needed to preserve his position in the outstanding proceedings. The evidence established that once the litigation had concluded the request for a reference would have been complied with.
45. On the issue of less favourable treatment, Lord Nicholls dealt with the position thus:

24 "The second ingredient in the statutory definition calls for a comparison between the treatment afforded to ~ the complainant in the relevant respect with the treatment the employer affords, or would afford, to other persons, "in those circumstances".

25 As appears from my summary of the authorities, different views have emerged on the correct way to identify the "others", or the comparators or control group, as they are usually known. One approach is that, to continue with my example, if an employee is dismissed the control group comprises the other employees. The complainant was less favourably treated because he was dismissed and they were not. There may be good reasons for this difference in treatment but, on this approach, that is a matter to be taken into account at the third stage when considering why the employer afforded the employee less favourable treatment. This was the approach adopted in Aziz v Trinity Street Taxis Ltd [1988] ICR 534. It was the approach adopted at all levels in the present case. Sergeant Khan was treated less favourably than other employees, because references are normally provided on request and Sergeant Khan was refused a reference. It was also the approach adopted in Brown v TNT Express Worldwide (UK) Ltd [2001] ICR 182.

26 The other approach is that when considering whether a complainant was treated less favourably there should be factored into the comparison features which make the situation of the complainant and the control group fairly comparable. The control group should be limited to employees who have not done the protected act but whose circumstances, in the material respects, are fairly comparable. This approach was adopted by the Employment Appeal Tribunal in Kirby v Manpower Services Commission [1980] ICR 420 and by the Court of Appeal in Nagarajan v London Regional Transport [1998] IRLR 73, 76, para 13 (this point was not the subject of the subsequent appeal to your Lordships' House [1999] ICR 877).

27 There are arguments in favour of both approaches. On the whole I see no sufficient reason for departing from the former approach, adopted by Slade LJ in the Aziz case [1988] ICR 534, 545-546. The statute is to be regarded as calling for a simple comparison between the treatment afforded to the complainant who has done a protected act and the treatment which was or would be afforded to other employees who have not done the protected act.

28 Applying this approach, Sergeant Khan was treated less favourably than other employees. Ordinarily West Yorkshire provides references for members of the force who are seeking new employment."

46. Lord Hoffman in his speech dealt with the position as follows:

48 "The appeal raised three points. First, when section 2 (1) of the 1976 Act speaks of the person victimised being treated "less favourably than in those circumstances he treats or would treat other persons", who are these hypothetical other people and what are the hypothetical circumstances? Mr Khan says that one should suppose a police officer like himself who had asked for a reference and appraisals but had not one "the protected act", i.e. brought proceedings under the Act. Such a person would have not have been denied a reference. The West Yorkshire Police say that, in addition to supposing that he had not brought proceedings under the Act, one should also suppose that he had brought proceedings on some other ground, e.g. for libel or constructive dismissal. Such a person would also not have been given a reference. I agree with my noble and learned friend Lord Nicholls of Birkenhead, the Employment Appeal Tribunal and the Court of Appeal that the first view is correct.

49 The purpose of the statute is that a person should not be victimised because he has done the protected act. It seems to me no answer to say that he would equally have been victimised if he had done some other act and that doing such an act should therefore be attributed to the hypothetical "other persons" with whom the person victimised is being compared. Otherwise the employer could escape liability by showing that his regular practice was to victimise anyone who did a class of acts which included but was not confined to the protected act."

47. Thus it follows that if The Independent article was a protected act the comparison for the purposes of less favourable treatment must be between the employee who had spoken to a newspaper and one who had not. The fact that the discussions with the newspaper may have been in breach of a confidentiality arrangement is not a factor for the purposes of carrying out the comparison to establish less favourable treatment.
48. As to the next stage of "by Respondent that" Lord Nicholls dealt with the issue at paragraph 29:

29 "Contrary to views sometimes stated, the third ingredient ("by reason that") does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the "operative" cause, or the "effective" cause. Sometimes it may apply a "but for" approach. For the reasons I sought to explain in Nagarajan v London Regional Transport [1999] ICR 877, 884-885, a causation exercise of this type is not required either by section l (l) (a) or section 2. The phrases "on racial grounds" and "by reason that" denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact."

30 "A situation, closely comparable to that in the present case, arose in Cornelius v University College of Swansea [1987] IRLR 141. This was a decision of the Court of Appeal, comprising Sir John Donaldson MR and Fox and Bingham UJ. Like the present case, Cornelius concerned steps taken by employers to preserve their position pending the outcome of proceedings. A college declined to act on an employee's transfer request or to operate their grievance procedure while proceedings under the 1975 Act, brought by the employee against the college, were still awaiting determination. Giving the only reasoned judgment, Bingham LJ said, at pp 145-146, para 33:

"There is no reason whatever to suppose that the decisions of the registrar and his senior assistant on the applicant's requests for a transfer and a hearing under the grievance procedure were influenced in any way by the facts that the appellant had brought proceedings or that those proceedings were under the Act. The existence of proceedings plainly did influence their decisions. No doubt, like most experienced administrators, they recognised the risk of acting in a way which might embarrass the handling or be inconsistent with the outcome of current proceedings. They accordingly wished to defer action until the proceedings were over. But that had nothing whatever to do with the appellant's conduct in bringing proceedings under the Act. There is no reason to think that their decision would have been different whoever had brought the proceedings or whatever their nature, if the subject matter was allied. If the appellant was victimised, it is not shown to have been because of her reliance on the Act"."

Two strands are discernible in this passage. One strand is that the reason why the officers of the college did not act on the complainant's two requests was the existence of the pending proceedings, as distinct from the complainant's conduct in bringing the proceedings. They wished to defer action until the proceedings were over. The second strand is that the college decisions had nothing to do with the complainant's conduct in bringing proceedings against the college under the 1975 Act. The decisions would have been the same, whatever the nature of the proceedings, if the subject matter had been allied to the content of the employee's requests.

31 Mr Hand submitted that Cornelius v University College of Swansea [1987] IRLR 141 was wrongly decided. I do not agree. Employers, acting honestly and reasonably, ought to be able to take steps to preserve their position in pending discrimination proceedings without laying themselves open to a charge of victimisation. This accords with the spirit and purpose of the Act. Moreover, the statute accommodates this approach without any straining of language. An employer who conducts himself in this way is not doing so because of the fact that the complainant has brought discrimination proceedings. He is doing so because, currently and temporarily, he needs to take steps to preserve his position in the outstanding proceedings. Protected act (a) ("by reason that the person victimised has--(a) brought proceedings against the discriminator ...under this Act") cannot have been intended to prejudice an employer's proper conduct of his defence, so long as he acts honestly and reasonably. Acting within this limit, he cannot be regarded as discriminating by way of victimisation against the employee who brought the proceedings."

Lord Hoffman dealt briefly with this issue at paragraph 50

50 "The requirement that doing a protected act must have been the reason for the less favourable treatment is adequate to safeguard an employer who acted for a different and legitimate reason. On the other hand, it will rightly provide no defence for an employer who can only say that, although this reason was indeed the doing of the protected act, it formed part of a larger class of acts to which he would have responded in the same way."

49. Mr Carr contends that the tests propounded by Lord Nicholls involve an examination of why the alleged discriminator acted as he did – what was his conscious or sub-conscious reason; and he relies on the Tribunal's findings, albeit that they did not for these purposes identify the correct protected act, which was that they launched the investigation because of the suspected breach of confidentiality and that they would have commenced such an investigation against any prosecutor who had not done a protected act.
50. Further, the Tribunal in support of the finding that it was the issue of confidentiality that led to the investigation accepted the evidence from the Respondent's witnesses that, but for the fact that the Appellant had made a racial discrimination complaint, the decision to launch a formal disciplinary investigation may have been taken earlier. They also concluded that the reason for investigating Mrs Sealeaf's complaint was because she had made such a complaint unconnected with any complaint of discrimination.
51. Mr Bean suggests that in the circumstances of this case the less favourable treatment was not for a different and legitimate reason since the issue of confidentiality was very much bound up with the complaint of racial discrimination and the resulting investigation that Mr Cameron was carrying out. He contends that the Khan decision should be restricted to the particular facts in relation to employers being able to preserve their position in pending discrimination proceedings. However, we see no distinction between the situation in Khan and this case where the employers for a legitimate reason wished to have confidentiality attached to the report, particularly as there was still an ongoing police investigation.
52. Accordingly we are satisfied that even if the Tribunal had failed to identify The Independent article as a protected act, their decision would not have been any different and would thus dismiss the appeal.