The Commissioner of Police of the Metropolis v Denby (Sex discrimination - Direct : Burden of proof : Practice and Procedure) [2017] UKEAT 0314/16/2410

Appeal against a finding of sex discrimination and victimisation. Appeal dismissed.

The Claimant was a police officer who was placed under a criminal and/or gross misconduct investigation by the Department for Professional Standards (DPS). However, a female officer who was under investigation for similar misconduct was not the subject of a formal DPS procedure; instead complaints against her were dealt with locally. The Claimant claimed sex discrimination at the ET and won. The Respondent appeal on 3 main grounds: 1) the ET had misdirected itself as to the burden of proof provisions in section 136 of the Equality Act 2010 ("the Act"), by taking into account, when considering whether the burden shifted to the Respondent, its explanations for the alleged discriminatory treatment; 2) the ET had fixed it with liability in respect of innocent agents who merely implemented decisions, without any discriminatory motivation; 3) procedural unfairness.

The EAT dismissed the appeal. The Tribunal had properly applied  the burden of proof provisions, properly evaluated the evidence and  made findings consistently with the CLFIS principle, which  had  been properly applied. The reasoning was sound and there was no procedural unfairness to the Respondent or its witnesses; the  issues had been explored in the pleadings (as amended), in witness statements and in cross-examination, applying the rule in Browne v Dunn [1893] 6 R 67 HL, as developed in subsequent cases including Chen v Ng (British Virgin Islands) [2017] UKPC27. There was no error in law in the treatment of the chosen comparator. Further, the CLFIS decision should not be allowed to become a means of escaping liability by deliberately opaque decision making which masks the identity of the true discriminator. Where a claimant is for good reason unable readily to identify which individual is  responsible internally within the employing organisation for an act of discrimination, the claimant  may, as this case demonstrates, sometimes be permitted to amend during the hearing once the correctperson is, or persons are, identified from the evidence.

Published: 25/10/2017 10:43

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