It is always advisable to deal with an employee’s grievance appropriately but a recent case illustrates that handling a grievance incompetently need not always lead to an inference of discrimination.
Mr Bowler was an experienced police constable with 25 years' service but he wanted to become a Sergeant with Kent Police. He passed the relevant exams, entitling him to apply for any vacant sergeant role. There was an expectation that he would obtain experience in an "acting-up" capacity, before applying for a role.
In 2010, he managed to gain this experience and was praised for his performance. Mr Bowler then moved to France to work on the Eurotunnel site, where his line manager at the time gave him further opportunities to gain the necessary experience.
In December 2011, Mr Bowler’s line manager was replaced by DI Staddon and from this point onwards, Mr Bowler felt that his attempts to get promoted were halted by DI Staddon and others. Mr Bowler raised a grievance and appeal, alleging race discrimination. He felt that these complaints were not treated with the level of seriousness that they deserved. The police officer (DCI Somerville) conducting the grievance had decided not to involve HR and instead had taken the rather unusual step of looking up the definition of race discrimination in a dictionary and asking relevant officers whether they were racist, which unsurprisingly they denied. When Mr Bowler highlighted various factual inaccuracies, he was ignored. Mr Bowler felt that those dealing with his grievance had discriminated against and victimised him on grounds of his race and he brought a claim in the Employment Tribunal.
The tribunal upheld two of the six allegations of less favourable treatment on grounds of race made by Mr Bowler, including his complaint that the police force had, in failing to investigate Mr Bowler’s grievance properly, produced a report full of inaccuracies. Seven of Mr Bowler’s eight complaints of victimisation were also upheld.
Given that they found that it was a serious and detailed grievance, which should have been treated properly it is perhaps not surprising that the tribunal held that Mr Bowler’s grievance had been handled incompetently.
The tribunal concluded that the lackadaisical approach indicated that DCI Somerville held a stereotypical view that Mr Bowler was being over-sensitive about being treated badly because of his race. DCI Somerville was a senior officer with HR support available to him, and yet he failed to handle the grievance properly. This could not be passed off as simple incompetence or unreasonableness and therefore nothing to do with race without some evidence to support such a conclusion. The tribunal concluded that Mr Bowler had shown facts from which they could conclude, in the absence of any other explanation, that there was a difference in treatment, which related to Mr Bowler’s race. As a result, the burden fell on the police force to demonstrate that there was a non-discriminatory explanation for the way in which the grievance was handled. The police force was unable to do this, as DCI Somerville appeared to think he had done everything properly. As a result, the Tribunal inferred discrimination from the fact that the police force had failed to handle the grievance in a serious manner.
The police force appealed. Employment appeals will generally only succeed on the basis that the tribunal got the law wrong; they will not consider an appeal based simply on argument that the facts were wrongly assessed. However, in this case it was argued that Employment Appeal Tribunal (EAT) had to review the facts because the original tribunal had insufficient evidence to decide even on a provisional basis that Mr Bowler had been treated less favourably because of his race.
The EAT found that tribunal’s decision to link i) the police force’s lackadaisical approach to the grievance with ii) having a stereotypical view about race discrimination, did not make sense. The EAT considered that whilst there was no doubt that unlawful direct discrimination could occur when assumptions were made that an individual has characteristics associated with a group to which he belongs, tribunals were not entitled to rely on unproven assertions of stereotyping.
Instead, there must be evidence from which the tribunal can properly infer that a stereotypical assumption was made; and that the assumption operated in the mind of the supposed discriminator when treating a complainant in the way alleged. In this instance the tribunal made a leap from the finding of the apathetic handling of the grievance to a conclusion that this by itself indicated a stereotypical view of race complaints based on unproven and unsupported assumptions.
As a result, the EAT concluded that the finding of unlawful race discrimination could not stand.
While this case provides an excellent example of how not to deal with a grievance it also neatly and more importantly illustrates that unreasonable behaviour is not always discriminatory behaviour and that to succeed in any discrimination claim, the treatment suffered by the employee must be ‘because of’ the employee’s protected characteristic, such as race. This should provide some comfort to employers, who will not always be able to guarantee that grievances are handled appropriately.
Chief Constable of Kent Constabulary v Bowler