Appeal No. UKEAT/0474/05/CK

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 November 2005

Before
HIS HONOUR JUDGE RICHARDSON
MR P R A JACQUES CBE
MR G M WORTHINGTON

MR T BARNES  	APPELLANT

(1)	THE COMMISSIONER OF THE METROPOLIS
(2)	INDEPENDENT POLICE COMPLAINTS COMMISSION	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR JAMES GALBRAITH-MARTEN
(Of Counsel)
Instructed by:
Messrs Russell Jones & Walker
Swinton House
324 Gray’s Inn Road
London WC1X 8DH	
For the First Respondent

For the Second Respondent	MR PAUL ROSE QC
(One of Her Majesty’s Counsel)
Instructed by:
Metropolitan Police Authority
Directorate of Legal Services
Wellington House
67-73 Buckingham Gate
London SW1E 6BE

MR BEN COLLINS
(of Counsel)
Instructed by:
The Treasury Solicitor (Employment Team)
Queen Anne’s Chambers
28 Broadway
London SW1H 9JS	

SUMMARY

Race Discrimination: Out of Time

The Tribunal’s approach to the question whether it was just and equitable to consider the Appellant’s complaint out of time was not contrary to the basis agreed at the prior Case Management Discussion.

The Tribunal’s conclusions, read with the submissions which underlay them, did not err in law and were not mutually inconsistent.

HIS HONOUR JUDGE RICHARDSON

1.	This is an appeal by Mr Trevor Barnes against a judgment of the Employment Tribunal sitting at London (South) dated 14 June 2005.  Mr Barnes had presented a claim of unlawful race discrimination against the Metropolitan Police Commissioner and against the Independent Police Complaints Commission.  If such a complaint is presented more than three months after the acts complained of, as this complaint was, a Tribunal may only consider it if, in all the circumstances of the case, it considers that it is just and equitable to do so.  By its judgment, the Tribunal held that it would not be just and equitable for a Tribunal to consider Mr Barnes’ complaint and dismissed it.

2.	An appeal lies against a judgment of the Tribunal only on a point of law.  Where, as here, the Parliament has entrusted the Tribunal with making a broad judgment as to what is just and equitable, taking into account all the circumstances, a point of law will seldom arise.  An Appellant must establish that the Tribunal erred in the law it applied, took into account what was irrelevant, left out of account what was essential or reached a conclusion which no reasonable Tribunal could properly reach on a correct appreciation of the law in context.

3.	There are essentially two grounds of appeal.  First, it is submitted for Mr Barnes that the basis on which the Tribunal’s hearing was conducted had been agreed and resolved at an earlier case management discussion and the Tribunal, impermissibly, stepped outside that basis in its conclusion.  Second, it is submitted that the Tribunal has made wholly inconsistent findings on an important matter in issue.  We emphasise the narrowness of the questions with which we are concerned.  The Tribunal was not concerned itself with any other question than whether it was just and equitable to consider the complaint, having regard to the time limit.  We are not concerned with any question other than whether it erred in law on these grounds.  

The Background
4.	Mr Barnes, who is white, was a Detective Chief Inspector.  In December 1999, as an on-call officer at Camden Police Station, he had to deal with the discovery of a body of a black female in the stairway of a block of flats.  Complaints were made about his investigation, both by the family and the coroner’s office.  At the heart of the complaint from the coroner’s office was evidence he gave at a coroner’s hearing on 21 August 2000.  He said on oath that he had faxed a report to the coroner before the date of the hearing.  It was alleged against him that he had lied on oath and back-dated a report which he actually made after the hearing so as to make it appear that the report existed earlier.

5.	Following receipt of these complaints, a full disciplinary investigation commenced in October 2000.  In August 2001 Mr Barnes was successful in passing a selection process for promotion to superintendent, but his promotion was put on hold because of the investigation.  Following the investigation, he was charged with perjury.  In March 2002, he was suspended from duty.  In September 2002, the prosecution offered no evidence against him, and the criminal proceedings came to an end.  His suspension was lifted, but he remained on restricted duties.  In July 2003, disciplinary charges were brought against him.  In February 2004, a disciplinary board found four charges of misconduct proved and he was “required to resign”.  Mr Barnes appealed to the Police Appeals Tribunal.  That appeal remains outstanding today.

6.	On 16 June 2004, the IPCC published a decision of a review panel in an unrelated case of a serving police officer, known as Superintendent Dizaei who has, as the Tribunal put it, a visibly ethnic minority background.  Mr Barnes saw similarities between his case and that of Superintendent Dizaei.  As in his case, Superintendent Dizaei had been the subject of criminal charges.  As in his case, the criminal charges were unsuccessful.  One set resulted in a jury verdict of not guilty, the other set were dropped at the last moment.  As in his case, misconduct charges were then recommended.  But, unlike in his case, Superintendent Dizaei received a temporary promotion and the charges against him were not pursued.  There was a private and confidential agreement, brokered by ACAS, to which several associations were party including the Metropolitan and National Black Police Associations.  The IPCC was highly critical of that agreement which it found to be ultra vires to the knowledge of the Metropolitan Police.  

7.	Apparently, the Metropolitan Police sought to justify its failure to proceed with disciplinary charges by reliance on the needs of the police service to recruit and retain people from black and minority ethnic groups.  The IPCC criticised this justification.  It said such reasons were never sensible grounds for manipulating a disciplinary system.  

8.	On 29 June 2004, just 13 days after that report, Mr Barnes presented his complaint of race discrimination.  His initial complaint was hand written and succinct.  He said:
“On 16 June 2004, the Independent Police Complaints Commission released their decision of the review of the police discipline proceedings against Superintendent Ali Dizaei.  I obtained a copy of this decision on 20 June 2004.  As a result of reading this decision and being aware of the decisions made in my own circumstances, I now realise that I have been subjected to both direct and indirect racial discrimination by the MPS, PCA and IPCC.  By the handling of the MPS of a Criminal and Discipline investigation conducted against myself and the withholding of my promotions since August 2001”.

9.	Later, his grounds of complaint were expanded in a document headed “Amended Grounds of Complaint”.  The grounds now relied on read:
“The Claimant was directly discriminated against by the First Respondent contrary to s.1 and 4 of the Race Relations Act in that:
(a)	He was subjected to a protracted investigation into his conduct.  The Claimant’s case is that the investigation resulted from the fact that he was a white officer and the alleged (mis)conduct concerned a black victim.  As a result his case was referred unnecessarily to the Crown Prosecution Service which thereafter commenced criminal proceedings against him;
(b)	He was denied promotion notwithstanding his acquittal of all criminal charges which is less favourable treatment than that accorded to Supt.Dizaei;
(c)	He was subjected to, or permitted to be subject to, disciplinary proceedings notwithstanding his acquittal of all criminal charges which is less favourable treatment than that accorded to Supt. Dizaei.  As a result he was required to resign from the Metropolitan Police Service”.

10.	It will be noted that in this summary, Supt. Dizaei is not given as comparator in respect of ground (a).  The reason for this is not difficult to see.  Supt Dizaei was also subjected into a protracted investigation into his conduct and criminal proceedings were commenced against him.  The amended grounds of complaint also stated:
“22.		Further and/or in the alternative the Claimant avers that each of the matters complained of below formed part of an act extending over a period ending at the earliest with the date on which he was required to resign. It is the Claimant's case that the treatment he received following the complaints made in late 2000 reflected or was determined by the fact that:
a. The deceased person was black;
b. He was a white police officer;
c. The nature of the complaint made by the family of the deceased;
d. An undue sensitivity to and concentration on the race of the Claimant
and the deceased person which dictated, influenced or affected the attitude adopted toward him”.
It was also said on behalf of Mr Barnes
“21.		It was not until publication of the review report that the Claimant was able to compare the treatment he had received with that of Supt. Dizaei and to conclude that he was treated differently on the ground of race.  In the premises it was not possible for him to present a complaint before publication of the review report.”

11.	On 15 February 2005, the case was listed for a case management discussion.  At this discussion, Counsel for Mr Barnes, Mr Galbraith-Marten, accepted that on the face of it, Mr Barnes’ complaint was presented outside the three month time-limit.  Counsel for all parties then agreed that the question whether it was just and equitable for a Tribunal to consider the complaint, was suitable for determination at a pre-hearing review on the basis of an agreement.  At the case management discussion, the Tribunal Chairman recorded the agreement as being 
“1.	The Claimant accepts the facts about what happened to his comparator, Supt Dizaei, from the report published about Supt Dizaei’s case.  
2.	The Respondents will not challenge the Claimant’s account of the events that led him to present his complaint to the Tribunal as set out in his Originating Application, but may challenge his motivation in bringing the proceedings”.
It is common ground that although paragraph 2 refers to the Originating Application, the Tribunal will also have had in mind the amended grounds to which we have referred, but which amended grounds the agreement covers is, as we shall explain below, a matter in issue.

The Tribunal’s Reasons
12.	The Tribunal heard submissions from Counsel on behalf of MPS, IPCC and Mr Barnes.  It is important to record, as background to key paragraphs of the Tribunal’s decision, certain parts of the submissions which they heard.  On behalf of MPS, the following submission is recorded:
“The Claimant has offered an explanation for delay which he said is that he saw the article relating to Mr Dizaei.  That is not a credible claim.  He was aware of all the matters on which he relies long before that time.  These are that the deceased person was black, that he is a white police officer, the nature of the complaint made by the family of the deceased, which was sensitive to the race of the Claimant and the race of the deceased person.  These are matters which he claimed dictated, influenced or affected the attitude adopted towards him”. 
13.	On behalf of Mr Barnes, it was submitted:
“The Claimant submitted that none of the facts known to him led him to consider that he had a case against the Respondents.  The discovery of Mr Dizaei’s case, and knowing that the IPCC had allowed race to be taken into account was an important piece of information.  This information allowed him to consider [that] this case was worthy of pursuing and made him believe that he had a case of race discrimination”.
The Tribunal, having found primary facts, and directed itself concerning the law, began its conclusions as follows:
“22.		The Respondents agreed that it would not challenge the Claimant’s account of the events that led him presenting his complaint to the Tribunal, as set out in his Originating Application.  Therefore it was accepted that the Claimant did not considering presenting a claim of race discrimination until the case of Mr Desai that was reported in the media which he heard on 16 June 2004.  Having regard to the submissions of the Claimant the Tribunal considered whether it was just and equitable to extend time”.  
The Tribunal considered and reviewed the period of delay in paragraph 23 of its reasons.  It noted, in paragraph 24 of its reasons that Mr Barnes had professional legal advice available to him at all stages of the disciplinary and criminal procedure.  The Tribunal then continued:
“25.		We bear in mind that the deceased person in this case was Black. It is clear from the letter from the deceased's family that race was an issue in their complaint against the Claimant.  We accept the Respondent’s submission that all material facts relating to this incident and to the investigation were known to the Claimant from the beginning of the investigation and right up to the conclusion of the disciplinary hearing.  We are satisfied that the Claimant could have brought this complaint as early as the commencement of the original investigation into his conduct but simply chose not to do so. We reject the Claimant's submissions that none of the facts known to him before he heard of Superintendent Dizaei’s case led him to consider that he had a case against the Respondent”.
The Tribunal then proceeded in paragraph 26 of its reasons to have regard to the merits.  The Tribunal said that Mr Barnes accepted that the facts of his case were dissimilar to the facts of Chief Superintendent Dizaei’s case and formed the view that it was highly improbable that he was an appropriate comparator.  The Tribunal concluded:
“27.		The Claimant is understandably aggrieved at having lost his career and promising future within the Metropolitan Police Service. There has been substantial delay in presenting this complaint which the Claimant attributes solely to finding out about the Desai case in the media. Having considered all of the circumstances of this case we find that the reason for the delay provided by the Claimant provides insufficient grounds on which to exercise our discretion to extend time.
28.		We conclude that it is not just and equitable for a Tribunal to consider this complaint and the originating application (claim) is dismissed”.

Submissions
14.	On behalf of Mr Barnes, Mr Galbraith-Marten says there is a flat contradiction between the Tribunal’s finding at the conclusion of paragraph 25 and the agreement made at the case management discussion.  On the basis of the agreement, the hearing was to proceed on the footing that Mr Barnes did not consider presenting a claim of race discrimination until Superintendent Dizaei’s case was reported in the media, but the Tribunal expressly rejected his submission that none of the facts known to him before he heard Superintendent Dizaei’s case led him to consider that he had a case against the Respondent.  If it rejected this submission, then the Tribunal proceeded on the basis that he did think he had a case against the Respondent before he heard Superintendent Dizaei’s case.  He submits that the agreement foreclosed that approach.  He says that the agreement took in paragraph 21 of the amendment grounds of complaint, namely that it was not until publication of the review report that Mr Barnes was able to compare the treatment he had received with that of Superintendent Dizaei and to conclude that he was treated differently on the grounds of race.  It was not possible for him to present a complaint before the publication of the review report.

15.	Further, Mr Galbraith-Marten submits that paragraph 25 is contrary to what the Tribunal itself considered to be the effect of the agreement at the case management discussion, as expressed in paragraph 22 of its reasons.  There is, he submits, an internal inconsistency in the reasons of the Tribunal.  Mr Barnes had always been dissatisfied with his treatment but the key point, he submits, is that in June 2004, he learned that someone from a different racial group had been treated more favourably than him.  That changed his state of mind from being one where he did not know he had a case of race discrimination to one where he did believe he had a case of race discrimination.  

16.	On behalf of the Commissioner and on behalf of IPCC, Mr Rose and Mr Collins submit that there is no inconsistency between paragraphs 22 and 25 of the reasons.  They submit that it was open to the Tribunal to conclude as it did that the Dizaei report led Mr Barnes to consider bringing proceedings.  This is what the Tribunal find in paragraphs 22.  On the other hand, it was also open to the Tribunal to find that the facts known to Mr Barnes long before the Dizaei report were sufficient to lead him to conclude that he had a case against MPS and IPCC and that, they submit, was what the Tribunal essentially concluded in paragraph 25.  They further submit that there was no inconsistency between the Tribunal’s conclusions and the agreement made at the case management discussion which was not so narrow in its scope as to preclude the Tribunal from considering the past state of knowledge of Mr Barnes.  They submit that the agreement that was made at the case management discussion did not include agreement of paragraph 21 of the amended grounds of complaint, in particular, not the conclusion that, for the first time, he was treated differently on the grounds of race or that it was not possible for him to present a complaint before publication of the review report.  

Conclusions
17.	Section 68(1) and (6) of the Race Relations Act 1976 provide:
“(1)		An Employment Tribunal shall not consider a complaint unless it is presented to the Tribunal before the end of the period of three months beginning when the act complained of was done.
(6)		The Tribunal may nevertheless consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.”	
Under these provisions, the Tribunal will have to consider in every case what constitutes the act or acts complained of and when that act or those acts were done.  That is the first stage: see section 68(i).  There are rules in Section 68(7) which may have to be taken into account. But the knowledge of the existence of a comparator will not be the issue at the first stage as Mummery J, the President, said in Mensah v Royal College of Midwives [1995] UKEAT 124/94 paragraph 6:
“It is not correct to say that the time under Section 68(1) only runs from the date when knowledge is acquired, for example, of a comparable person of a different race or colour who has received more favourable treatment………An act occurs when it is done, not when you acquire knowledge of the means of proving that the act done was discriminatory. Knowledge is a factor relevant to the discretion to extend time. It is not a pre-condition of the commission of an act which can be relied on as an act of discrimination”.

18.	In Mr Barnes’ case, there was no doubt that the acts complained of were more than three months before proceedings had commenced.  His case was concerned with the second stage: section 68(6).  Knowledge of the existence of a comparator at that stage may be relevant to the discretion to extend time.  In Clarke v Hampshire Electroplating [1991] UKEAT 605/89/2409, the Appeal Tribunal said:
“Under Section 68(6) the approach of the Tribunal should be to consider whether it was reasonable for the Applicant not to realise he had the cause of action or, although realising it, to think that it was unlikely that he would succeed in establishing a sufficient prima facie case without evidence of comparison”.

19.	It follows that a Tribunal will be entitled to ask questions about a Claimant’s prior knowledge: when did he first know or suspect that he had a valid claim for race discrimination?  Was it reasonable for him not to know or suspect it earlier?  If he did know or suspect that he had a valid claim for race discrimination prior to the time he presented his complaint, why did he not present his complaint earlier and was he acting reasonably in delaying?  These, of course, are far from being the only questions which the Tribunal may ask in order to decide whether it was just and equitable to consider the complaint.  The Tribunal has to consider all the circumstances.  We single out these questions because this appeal turns on the Tribunal’s finding about Mr Barnes’ state of mind.  

20.	Against that background, we turn to the two grounds of appeal.  The first relates to the scope of the agreement reached at the case management discussion.  In our judgment, the case management discussion established that the Respondents were not to challenge what happened in June 2004, namely that the Dizaei report was published, contained the information which was set out in the amended Grounds of Claim, was seen by Mr Barnes at the time he alleged and did, in fact, lead Mr Barnes to present the complaint of race discrimination.  In our judgment, nothing in the case management discussion precluded the Tribunal from considering the prior knowledge of Mr Barnes.  The Tribunal was entitled, as part of its investigation of all the circumstances to ask the kinds of questions about Mr Barnes’ knowledge, which we have set out above.  

21.	The view that we have formed accords, in our judgment, with the express words used by the Chairman at the case management discussion to summarise the agreement between the parties.  Also, in our judgment, this view makes sense when one considers the purpose of the agreement of the case management discussion.  It was always intended, we have no doubt, to adduce evidence from Mr Barnes.  There was no need to agree any of the evidence that Mr Barnes could give about his own knowledge and belief at any particular date.  On any possible view, his motivation was going to be an issue.  What was essential was to establish for the purpose of the hearing, what the IPCC reported and when, in relation to the time when Mr Barnes made his complaint, hence subparagraph (b) of the agreement.  Likewise, it was important to establish facts about what happened to the comparator so the Tribunal could reach a judgment on the importance of discovery of the comparator.  Hence subparagraph (a) of the agreement.  If these things were taken as agreed, there was no need any substantial amount of evidence as to the facts of Mr Dizaei’s case or the IPCC investigation of it.  

22.	We also note that Miss Chudleigh in fact made submissions as to Mr Barnes’ prior knowledge without the Tribunal concluding, or any other party protesting, that she was not entitled to do so.  It follows from what we have said that the Tribunal was not precluded by the agreement from considering and making findings about Mr Barnes’ prior knowledge.  In particular, it was not precluded by agreement from making findings on the territory covered by paragraph 21 of the amended grounds.  It was, for example, entitled to find that Mr Barnes was able to conclude prior to the Dizaei report that he had been treated differently on the grounds of race.  For these reasons, we reject the first ground of appeal.

23.	We turn then to the second ground, the ground of internal inconsistency.  It is without doubt true to say that paragraphs 22 and 25 of the Tribunal’s reasons do not read easily together.  On the face of it, there is some inconsistency between the Tribunal saying, on the one hand, that Mr Barnes chose not to bring the complaint earlier (paragraph 25) and, on the other hand, that he did not consider presenting a claim of race discrimination until June 2004 (paragraph 22).  However, when one considers paragraph 25 of the Tribunal’s judgment in the context of the submissions which it accepted and rejected, we think the reasons of the Tribunal are clear and were open to them.  

24.	It had been submitted for Mr Barnes that the discovery of Mr Dizaei’s case was crucial.  It made him believe he had a case of race discrimination (see paragraph 21 of the reasons for this submission).  This submission, the Tribunal plainly rejected in the last sentence of paragraph 25.  It had been submitted for MPS that Mr Barnes’ claim in this respect was not credible, that he was aware of matters including the race sensitive context well before June 2004.  This submission was accepted (see the penultimate sentence of paragraph 25).  Against this background, we accept that when the Tribunal used the phrase “consider presenting a claim” in paragraph 22, the Tribunal was saying that Mr Barnes was first prompted actually to consider presenting a claim in June 2004.  The Tribunal did not mean in paragraph 22 to say, and did not say, that Mr Barnes did not think that he had a potential claim for race discrimination prior to that date.  In our judgment, that was the issue which the Tribunal considered and determined against him in paragraph 25 of its reasons; and that it did so is clear when one considers paragraph 25 of the reasons against the submissions which are recorded on the parties’ behalf in paragraphs 19 and 21.  

25.	The choice of language in paragraph 22 of the Tribunal’s conclusions is not ideal.  It would have been helpful if the Tribunal had set out more fully in paragraph 25 of its reasons what its findings were so that one did not have to read them back against paragraphs 19 and 21 of the reasons.  But, in the end, having looked carefully at the Tribunal’s reasons, we conclude that the Tribunal reached findings which were open to it, which were not precluded by the agreement at the case management discussion and which are not internally inconsistent.  Therefore, the appeal will be dismissed.