The claimant was approaching 30 years service with the respondent and therefore eligible to retire. It was necessary to make redundancies and/or redeployments and the claimant was asked if he was thinking of retiring and if not, whether he wanted to stay in his current role or be redeployed. The claimant said he wanted to stay. The claimant was made redundant after he scored less than others when tested against a matrix of skills. The claimant contended that the matrix was deliberately manipulated to secure the result that he would obtain fewer points than colleagues and that the reason for so doing was to avoid the problem of his taking retirement. His argument was that the respondent was concerned that, if he did stay on, he would then soon retire meaning that they would be left with the headache of having to recruit someone else. The claimant lost his claim of age discrimination at the ET and appealed.

The EAT dismissed the appeal. The respondent had made a shambles of devising a matrix and applying points to all affected in a reorganisation of police officers. But the Employment Tribunal was entitled to uphold the explanation as an honest attempt to be fair, when answering the claim that they had deliberately manipulated the scheme to ensure the claimant, by reason of his age, fell outside the safety zone.

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Appeal No. UKEAT/0055/13/BA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 11 July 2013

Before

HIS HONOUR JUDGE McMULLEN QC

MR D BLEIMAN

MR J R RIVERS CBE

MR OSOBA (APPELLANT)

THE CHIEF CONSTABLE OF THE HERTFORDSHIRE

CONSTABULARY (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MS NAOMI CUNNINGHAM (of Counsel)
Instructed by:
Slater & Gordon LLP
50-52 Chancery Lane
London
WC2A 1HL

For the Respondent
MR MARK LEY-MORGAN (of Counsel)
Instructed by:
Hertfordshire Police Legal Services
County Police HQ
Starborough Road
Welwyn Garden City
AL8 6LF

AGE DISCRIMINATION

An officer made a shambles of devising a matrix and applying points to all affected in a reorganisation of police officers. But the Employment Tribunal was entitled to uphold her explanation as an honest attempt to be fair, when answering the claim that she deliberately manipulated the scheme to ensure the Claimant, by reason of his age, fell outside the safety zone.

1. This case is about age discrimination. We will refer to the parties as the Claimant and the Respondent. It is a judgment to which we have all contributed, drawn as we are by statute for our specialist and diverse experience

1. It is an appeal by the Claimant in those proceedings against the reserved judgment of an Employment Tribunal chaired by Employment Judge Bloom which sat on two days, we will correct the record to so provide, for which reasons were sent on 25 October 2012. The parties were respectively represented by Ms Naomi Cunningham and Mr Mark Ley-Morgan of counsel. The Claimant contended that his post in the Respondent police force had been reorganised by reason of his age in that he was imminently to be eligible to retire on a full pension.

1. The Respondent contended that that had nothing to do with his selection to be redeployed.

1. The essential issue could not have been more narrowly defined and it emerges from the Claimant's witness statement where he says the following:

"I concluded that this matrix process had been designed to orchestrate my removal from L&D to meet the requirements of the back-office review. I infer that there was a concern that I may retire imminently, given that I would be potentially eligible to do so from March 2012, although I did not have any such intention."

1. The question for the Tribunal was whether there was conscious or sub-conscious discrimination. The case was put as direct and indirect but the issue principally focused upon direct discrimination. The Employment Tribunal rejected the claim. The Claimant appeals and directions sending this to a full hearing were given on the sift by Mr Recorder Luba QC who considered this was a narrow and new point.

1. The relevant provisions of the legislation are not in dispute. The Equality Act 2010 provides:

"5. Age

(1) In relation to the protected characteristic of age -

(a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular age group;

(b) a reference to person who share a protected characteristic is a reference to person of the same age group.

(2) A reference to an age group is a reference to a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages.

13. Direct discrimination

(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

(2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim.

43. Indirect discrimination

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c) it puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim."

1. The Tribunal addressed itself both on direct and indirect discrimination and upon the burden of proof.

1. Redundancy of police constables may not occur but reorganisations driven by the need of a public authority such as the Respondent to make savings may, and include reductions in headcount. The Respondent here was required to reduce its budget gap of £36 million; civilian staff were being made redundant.

1. The Claimant began service in the police on 7 March 1982; his service with the Respondent which was treated as continuous ended on 16 April 2012. It follows that on 7 March 2012 the Claimant had achieved 30 years' service and so was entitled to retire on full pension at the age of 49. The Respondent has a skills development team in which seven officers were employed to train police officers, special police officers and others.

1. It is common ground in this case that all of the officers had exemplary records of service and were highly regarded by their peers and management. The Claimant particularly was regarded as a star and he had received a number of commendations and an award for bravery. It is plain from the evidence that Miss Pritchard, the officer charged with the responsibility to reduce the headcount, was faced with great problems of how to select. For this there is a detailed policy, drawn up with the assistance of the Police Federation which represents officers. It applies where there is to be a reduction in the number of posts. The first step to be taken is to see whether or not this reduction can be done by natural turnover. After that has been done and there still is a need, officers must be asked to express their preference to take up a post in a new structure or be posted alternatively to another place. If not, a selection process has to be adopted.

1. Fortuitously in this cohort, two of the seven had confirmed to the Respondent that they were to retire imminently. Miss Pritchard wrote to the remaining five to seek their views in accordance with the policy and they all received identical letters. In addition the Claimant's letter included the following:

"I know that you will have reached your 30 years service in April 2012. Have you made a firm decision in respect of your retirement? If you are deciding not to retire, do you wish to remain in your current role or would you consider applying for another role within the Constabulary"

The Claimant indicated that he wanted to stay on.

1. Miss Pritchard then went about drawing up a matrix of skills by which to test the qualities of the officers and allocating points to such skills. In constructing the matrix Miss Pritchard made one change and this was to do with credit to be given to officers who trained Special Constables at weekends and/or in the evenings. On its first emanation the matrix gave no points to the Claimant under this head; under the revised head the score was the same. The Claimant contends that this was deliberate manipulation by Miss Pritchard to secure the result that he would obtain fewer points than colleagues and that the reason for her so doing was to avoid the problem of his taking retirement. This is a complex conceit to grasp. It is said that the Claimant would go through the selection exercise, would be one of the three saved rather than the two exiled to the salon des refuses and then once safely over the threshold would retire causing Miss Pritchard a headache in that she would then have lost one of her stars, and would either have to recruit or something similar. That is why the Claimant says he was selected on the grounds of his age. The protected characteristic applies to the group of people who are close to having 30 years' service; 30 years' service translates into being aged 49. All of the group had service of 20 years or more but the Claimant was the nearest to achieving 30 years. The group was populated by people older and younger than he is.

1. Miss Pritchard's account of the matrix, and her scores for both the Claimant and the others, received the most searching proper cross-examination at the hands of Ms Cunningham before this Employment Tribunal which noted the time taken. The outcome was productive; Miss Pritchard was shown to have made errors in constructing the matrix and in applying the points.

1. The Tribunal found that the process was, as it put it, at best inconsistent and certainly shambolic in places and lacking in competence. On that basis the Tribunal found that the Claimant had achieved stage 1 under the Equality Act, and transferred the burden of proof of providing an explanation to the Respondent.

1. The conclusions were these and we set them out in full.

"49. It is clear, as we have found, that there were initially and also accepted at its conclusion by Ms Pritchard considerable inconsistencies and inaccuracies with the scoring process and, in particular, how these scores affected the Claimant. As a result we conclude that the Claimant has proved facts upon which we could conclude that because of the Claimant's age he has been treated less favourably than other persons, i.e. persons who were not able to retire and take their full pension. This conclusion means that it is then for the Respondent to prove that it did not treat the Claimant less favourably because of his age which in the context of this case means that it is for the Respondent to prove that it did not treat the Claimant less favourably because of his imminent entitlement to retire and take his full pension.

50. The Tribunal is firmly of the view that the matrix devised by Ms Pritchard and its subsequent implementation at all stages was shambolic and to some degree incompetent insofar as the devised matrix had its subsequent impact against the Claimant. However, such a conclusion by the Tribunal does not lead to a conclusion that the Claimant was the victim of unlawful discrimination either direct or indirect. Although we have been severely critical of the approach undertaken by Ms Pritchard in this case, we do not believe that at any time of the process she undertook it with the object of, as alleged, ensuring that the Claimant was to be selected in order to avoid imminent or future difficulties as far as any future retirement was concerned. The Tribunal accepted that Ms Pritchard was an honest witness in eventually accepting the errors in her process but it does accept that there was no discriminatory motive behind her actions.

52. The errors contained within the originally devised matrix and its subsequent implementation did not place the Claimant at a particular disadvantage when compared with other persons, i.e. persons who were not approaching a retirement age. The errors and omissions as identified could equally have applied to other serving Police Officers who were not approaching imminent retirement."

1. Paragraph 52 demonstrates what is put in Ms Cunningham's skeleton argument expressly that the process was riddled with errors in relation to the Claimant's scores and those of his colleagues.

1. The Claimant left the service in April 2012, for to his credit he had secured other teaching work and now is in receipt of the full pension which he had earned over the years.

1. The Claimant contends that the Tribunal made errors which can be summarised by reference to Ms Cunningham's argument in three broad respects. The primary case which she advances is that it got the burden of proof wrong under section 136 of the Equality Act in that the Tribunal having accepted that Miss Pritchard was honest and did not have any intention to discriminate, failed to examine what explanations there were for the incompetence which the hearing had shown up. Ms Cunningham also contends, as most counsel do before this court, that there were inadequate reasons and that the judgment was perverse. Clearly the lion's share of the argument and the most pointed, indeed the only one noted by the learned Recorder when sending this to a full hearing, was the first. Ms Cunningham contends that on the findings by this Tribunal, section 136 loses its teeth; the contention is that marks were manipulated to the Claimant's disadvantage, a clever matrix was designed in order to let him out of the service as a result of his age.

1. Ms Cunningham relies on the well known direction to juries implicitly cited by Sedley LJ in Anya v University of Oxford [2001] ICR 847 at para 25 that a witness may be credible and honest but mistaken. If the Respondent had carried out a shambolic exercise there had to be an explanation for it and it is not enough simply to say the Respondent's officer did not believe she was discriminating and had no intention to do so.

1. Ms Cunningham also criticises the Tribunal for not citing the questionnaire submitted under the statute and for not drawing inferences from evasive answers contained in the questionnaire. She does accept however that the process was conducted poorly across the board. Yet neither at the Employment Tribunal nor before us is there a straightforward application of the process as it would be done correctly which would put the Claimant into the safety zone.

1. The Respondent's primary case moves from the citation from the witness statement which began this judgment. On examination analytically the assertion by the Claimant is based upon his inference that the Claimant might retire imminently. Mr Ley-Morgan contends that that never was the concern of Miss Pritchard. It was not put to her that she had such concern. It was not put to her that she did not believe the Claimant when he said, "I want to stay on. I don't want to retire" and so the foundation, Mr Ley-Morgan says of the case, falls away. The premise is incorrect. In any event the Claimant contends without challenge that he had no such intention and nor was that disavowed by Miss Pritchard.

1. The evidence relating to the Claimant's retirement in the email which we have cited is to do with the application by Miss Pritchard of the Respondent's policy. We might also add the fact that two of the seven in the group had also retired imminently and it was a relevant factor.

1. The Tribunal had a choice to make given the narrow issue which it had to decide: whether Miss Pritchard behaved as she did because of her concern that the Claimant would retire imminently after the exercise had been completed, or because she was doing the best she could, and that there were mistakes. One particular feature was to do with the training of Special Constables on Thursdays and the weekends. That point had not been made at an early enough stage and in any event there was no evidence that Miss Pritchard knew at the time that by changing the matrix it would not benefit the Claimant or benefit the others.

1. Legal principles are to be found first in the speech of Lord Nicholls in Nagarajan v London Regional Transport [1999] ICR 877:

"I turn to the question of subconscious motivation. All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant's race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. It goes without saying that in order to justify such an inference the tribunal must first make findings of primary fact from which the inference may properly be drawn. […]

Thus far I have been considering the position under section 1(1)(a). I can see no reason to apply a different approach to section 2. 'On [racial] grounds' in section 1(1)(a) and 'by reason that' in section 2(1) are interchangeable expressions in this context. The key question under section 2 is the same as under section 1(1)(a): why did the complainant receive less favourable treatment? The considerations mentioned above regarding direct discrimination under section 1(1)(a) are correspondingly appropriate under section 2. If the answer to this question is that the discriminator treated the person victimised less favourably by reason of his having done one of the acts ('protected acts') listed in section 2(1), the case falls within the section. It does so, even if the discriminator did not consciously realise that, for example, he was prejudiced because the job applicant had previously brought claims against him under the Act."

1. From that well known proposition is developed the injunction to Employment Tribunals contained in Anya drawing itself in the Judgment of Sedley LJ from the speech of Mummery P as he then was in Qureshi which we need not include here.

1. The central question in every case is to search for the reason why. As Elias P said in Laing v Manchester City Council [2006] ICR 1519:

"60. Second, the obligation for the employer to provide an explanation once the prima facie case has been established, strongly suggests that he is expected to provide a reason for the treatment. An explanation is just that; the employer must explain. Why has he done what could be considered to be a racially discriminatory act? It is not the language one would expect to describe facts that he may have adduced to counter or put into context the evidence adduced by the claimant. […]

71. We would add this. There still seems to be much confusion created by the decision in Igen v Wong. What must be borne in mind by a Tribunal faced with a race claim is that ultimately the issue is whether or not the Employer has committed an act of race discrimination. The shifting in the burden of proof simply recognises the fact that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the Tribunal on the balance of probabilities that certain treatment had been by reason of race.

72. The Courts have long recognised, at least since the decision of Lord Justice Neill in the King case to which we have referred, that this would be unjust and that there will be circumstances where it is reasonable to infer discrimination unless there is some appropriate explanation. Igen v Wong confirms that, and also in accordance with the Burden of Proof directive, emphasises that where there is no adequate explanation in those circumstances, then a Tribunal must infer discrimination, whereas under the approach adumbrated by Lord Justice Neill, it was in its discretion whether it would do so or not. That is the significant difference which has been achieved as a result of the burden of proof directive, as Peter Gibson LJ recognised in Igen. […]

75. The focus of the Tribunal's analysis must at all times be the question whether or not they can properly and fairly infer race discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a Tribunal to say, in effect, "there is a nice question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the Employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race"."

1. With those directions we have come to the conclusion this appeal should fail. It must be borne in mind how narrowly was the point constructed and therefore how simple the Tribunal's task was. Given the substantial battering of the Respondent's explanation through the cross-examination of Miss Pritchard what more could she have said? The central problem with someone who admits to making errors is whether a further explanation is to be wrung from her. Sometimes those errors are explained in mitigation, "I was overworked", "I had family care responsibilities" but that is not the case here. The simple proposition advanced by Miss Pritchard is that she did what she thought was right in accordance with the policy and she was exposed in the course of the trial to the errors which she had made which she accepted.

1. The Tribunal accepted her account that she had acted honestly. Most particularly in the face of the direct accusation of manipulation in order to do down the Claimant because of his age the Tribunal accepted the good faith of her account. Is that enough? Does she have to create some further explanation? We consider it would be wrong for a Respondent to have to give a yet further possibly dissembling explanation in order to meet the case. We accept Mr Ley-Morgan's analogy to explanations above such as overwork or family circumstances, but there simply may be cases where there is nothing more to say, no further explanation than "Well, I got it wrong and I take responsibility for that". An Employment Tribunal is entitled to reject an assertion that "I didn't have it in my mind that I was going to discriminate" on the usual grounds for drawing inferences from those unwilling to admit discrimination. It follows that the burden of proof having shifted to the Respondent in this case, and no appeal emerges from that, what was the reason why Miss Pritchard acted as she did? The Tribunal accepted that her approach was shambolic but did not accept the Claimant's case that it was manipulated on the grounds that he was imminently to retire.

1. We go back to the way in which it was put at the start of this judgment in the witness statement of the Claimant. This is a weak statement, he infers that there was a concern. That is an inference which he could draw, so could the Tribunal, but given the finding by the Tribunal based on Miss Pritchard's evidence that cannot survive. The sole action relevant to retirement is sending the email; that email was sent pursuant to the requirement in the policy identify turnover. It is in the context of natural turnover by reason of retirement having been achieved in respect of two of the seven posts. It was only natural, it was indeed humane and of course in accordance with the policy that that question be asked specifically of the sole remaining member of the team who was bumping on the ceiling of retirement. Nothing discriminatory could possibly be inferred by that question. Indeed once the answer came back and Miss Pritchard accepted it, there was no further basis for inferring that Miss Pritchard wanted him to leave the organisation on reaching pensionable age.

1. Given the narrow focus of this case we can see no grounds for overturning the Tribunal's judgment which involved acceptance of the honesty of this witness. She was not mistaken about her intention, she was mistaken in the way in which she did the process and allocated the points for all of these officers. It was open as a question of fact to accept the explanation given by Miss Pritchard; that was a matter of judgment for it and we see no error of law.

1. There remain the two points which come up in 95% of the cases in this court. It must be borne in mind that the audience for the reasons is the parties who have heard the submissions and heard the evidence for it is frequently overlooked that the Court of Appeal in the landmark case of English v Emery [2003] IRLR 710 added a postscript to that effect. This Claimant knows why he lost the case as a result of these reasons and as a result of, it must said, the highly successful attack on the Respondent conducted by his counsel very properly. He must have that as some sort of consolation.

1. This case is not one which reaches the high threshold a successful Claimant has to mount as set out in Yeboah v Crofton [2002] IRLR 634 for perversity. So both the reasons challenge and the perversity challenge, familiar fellow travellers in our court every day, are dismissed.

1. We were asked to consider what we minded to do if we allowed the appeal. It is common ground that this case would have to go back to a separate Tribunal. The approach to the primary case made by Ms Cunningham which was that we should substitute our decision and find in his favour on age discrimination was resisted by Mr Ley-Morgan for reasons which we consider correct. We do not have sufficient material to decide if we are wrong about the explanation and that any explanation would have to be determined as matter of fact by the Employment Tribunal. So if we are wrong, if we were in favour of Ms Cunningham we would send this back to a differently constituted Employment Tribunal.

1. We are asked for permission to appeal on one ground which is that this case is of enormous importance. The usual ground, reasonable prospect of success, is not part of her submission. Using different anatomical imagery for section 136 from the one she started with (to do with losing teeth) this is to do with losing guts. The Act would be eviscerated were this judgment to be correct in law and therefore of enormous importance to every person claiming a protected characteristic in discrimination. Mr Ley-Morgan brings us down to earth by submitting that this is a simple case on its facts alone with no wider consequences. We agree, this case does not have a reasonable prospect of success nor does it command the enormous importance submitted, flattering as it may be to us to think that.

1. We would like to thank both counsel for their submissions in this case and we are pleased to note from the findings that Mr Osoba is gainfully employed and drawing his rightful pension. The appeal is dismissed.