Appeal No.	 EAT/52/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 June 2000

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MRS D M PALMER
MR S M SPRINGER MBE

THE CHIEF CONSTABLE OF WEST YORKSHIRE	APPELLANT

MRS ANGELA VENTO	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR D BEAN QC
And
MR D JONES
Instructed By:
Mr A Hussain
Police Headquarters
PO Box 9
Laburnum Road
Wakefield WF1 3QP	
For the Respondent	MR C JEANS QC
And
JANE WOODWARK
Instructed By:
Ms N Al-Gafoor
Messrs T I Clough & Co
Solicitors
Bridge House
24 Sunbridge Road
Bradford BD1 2TD

MR JUSTICE LINDSAY (PRESIDENT):	We have before us the appeal of the Chief Constable of West Yorkshire in the matter Angela Vento against that Chief Constable.

1	Mrs Vento lodged her IT1 on 12 February 1998 alleging against the Police (to call them that) “unfair dismissal and racial/sexual discrimination”.  There was a hearing at the Employment Tribunal at Leeds under the chairmanship of Mr D.R. Sneath.  The hearing of evidence alone took some 11 days and the whole Decision, some 34 to 35 pages, was sent to the parties on 4 October 1999.

2	The decision, which was unanimous, was as follows:

“The unanimous decision of the tribunal is that the respondent vicariously committed acts of discrimination contrary to Part II of the Sex Discrimination Act 1975.  The applicant’s complaint of race discrimination is dismissed.  A hearing to determine remedy will take place on a date to be fixed.”

And there was a Notice of Appeal of 9 November 1999.  

3	Before us today we have heard Mr Bean QC leading Mr Jones for the Chief Constable.  Mr Jones had appeared below and we have heard Mr Jeans QC leading Miss Woodwark, who had appeared below on behalf of Mrs Vento, an erstwhile probationary Police Constable.  The Notice of Appeal has several distinct headings.  Not all have been orally ventilated before us today but none has been abandoned and to that extent has to be dealt with and the first one, which will be inexplicable until we set out the background, is “Failure to make the correct comparison”.

Failure to Make the Correct Comparison
The “Mr Value” incident.
4	The Notice of Appeal says, at paragraph 7:

“7.  The Respondent’s principal complaint was that the Force’s decision not to confirm her in post at the end of her probationary period was an act of direct sex discrimination.  The critical question to be answered, therefore, was whether a hypothetical male probationer in the same position would have been offered a permanent post or not.”

The Notice of Appeal then refers to the so-called “Mr Value” incident.  It is best to set out briefly what the Tribunal held in relation to that incident.

“54.  On 19 July 1997 the applicant was on foot patrol with another probationer constable.  She was asked to attend a department store called Mr Value in connection with the detention of a suspected thief.  The store was a twenty minute walk away. …”

5	It is implicit in the reasoning of the Tribunal that Mrs Vento had been told by Acting Police Sergeant Rushton, or some other superior officer, that she had to walk to the Mr Value site.  Whether whoever gave her the instruction would have so instructed her if he had known that a convenient lift would be available to her was not a matter that was explored or, at any rate, it is not recorded in the reasons.  Nor is any reason given in the Decision why there was any particular importance to be attached to Mrs Vento not accepting a lift but rather walking.  The Tribunal continues:

“As it happened, a car occupied by another police officer was nearby when the applicant received the message.  The officer in that car offered to give the applicant a lift.  Back at the police station, Acting Sergeant Rushton asked the applicant how she had made her way to the store.  By then there was a view that the applicant was dishonest.  He knew that she had had a lift.  He thought that she might lie.  She did by saying that she had walked.  The applicant lied because she thought that Acting Sergeant Rushton was trying to trap her.  Had she not been under scrutiny and pressure therefrom, she would not have lied.  She believed that if she told the truth, he would have insisted that he had told her to walk.”

6	There seems to have been no accusation of disobedience.  There seems to have been no accusation that the service to the public was in any way thereby diminished.  There is no reason given as to why Sergeant Rushton, if he knew what the answer to the question was, should have pressed it upon her.  The lie seems to have been irrelevant in operational terms and, moreover, the Tribunal held it to have been the consequence of scrutiny and pressure upon her.  Nonetheless, it was represented to her as having been an incident of total dishonesty.  In their paragraph 58, the Tribunal says:

“58.  In respect of the Mr Value incident three days earlier, the applicant was accused of being totally dishonest. …”

In respect of this incident the Notice of Appeal says this:

“8.  At paragraph 54 (the ‘Mr Value’ incident) the tribunal found, correctly, that the respondent told a lie to a superior officer in the course of her employment.  The tribunal nowhere addressed the question of whether a hypothetical male probationer who had told a lie in these circumstances would have been confirmed in post.  There was in any event no basis upon which they could have answered that question in the affirmative.”

7	We would readily accept that the treatment of an actual male comparator whose position was wholly akin to Mrs Vento’s in relation to the Mr Value incident was not in evidence.  It followed that the Tribunal had to construct a picture of how a hypothetical male comparator would have been treated in comparable surrounding circumstances.  One permissible way of judging a question such as that is to see how unidentical but not wholly dissimilar cases had been treated in relation to other individual cases.  That is one approach.  Another permissible approach is to ask witnesses how the hypothetical case that requires to be considered would have been dealt with, although great care has to be exercised in assessing the answers to questions such as that because the witness will be aware that it will be next to impossible to disprove any answer to a hypothetical question and also witnesses will know, by the time of the Tribunal hearing, what sort of answer is convenient or helpful to the side that they might wish to support.  Whether the Tribunal relied at all on such questions and answers we do not know and cannot tell.  No Chairman’s Notes have been asked for or supplied.  As for constructing the hypothetical case from actual but dissimilar cases, the Tribunal refer in some detail to four actual comparators.  They are referred to as “PC” (standing for Police Constable) then a letter of the alphabet.  The case of one actual comparator, PC P, a woman, showed that dishonesty did not invariably lead to dismissal even when it was serious.

8	In paragraph 71 the Tribunal say:

“71.  PC P was a female officer, unmarried with no children.  Whilst a probationer, she was subjected to disciplinary charges arising out of an incident in the company of a more senior officer.  She had made a false entry in her pocket notebook to the effect that she and her colleague had operated the correct PACE procedures when showing photographs to a witness.  She had also failed with her colleague to attend to a callout whilst on patrol.  Again she had made a false entry in her pocket notebook to show that she and her colleague had been occupied with another matter at the time of the callout.  Criminal charges were considered by the Crown Prosecution Services but were not laid against her.  Chief Inspector Bonnard considered that PC P had played a minor role in the incident and that she had been coerced by an officer who was senior to her in service.  He accepted that the pocket book entry raised an issue as to her honesty.  She was not dismissed because she was considered in every other respect to be satisfactory.  We note in her case that what she did affected the integrity of the criminal justice system, something which should be of paramount concern to the respondent.  Nothing done by the applicant had that effect.”

9	True it is that she, PC P, had been coerced by a senior officer but, for all that, a serious form of dishonesty did not lead to dismissal.  The case does not illustrate discrimination, that is to say less favourable treatment of Mrs Vento on the ground of sex, but it does clearly illustrate that dishonesty, even serious dishonesty, can be and was in fact condoned by reference to surrounding circumstances.  

10	The circumstances surrounding another actual comparator, PC Z, were also referred to by the Tribunal, in paragraphs 68 and 69:

“68.  PC Z was an Asian officer.  He was the subject of a Case Conference chaired by Mr Bettison on 13 February 1996.  He formed the impression that PC Z was unreliable in that he made repeated mistakes and showed a lack of attention to detail in his reports.  He needed to be constantly supervised and prompted.  He failed to translate earlier feedback into behavioural change.  His interview skills were wanting.  He failed to judge situations accurately and was insufficiently assertive.  Mr Bettison, however, found a paradox.  For PC Z had dealt with an off-duty incident in which he had shown courage, determination and a self confidence that had appeared lacking in his on-duty performance.  PC Z was not able to explain this paradox and Mr Bettison reluctantly concluded that he would have to advise the respondent to dispense with his services.  The respondent accepted Mr Bettison’s recommendation.  In those circumstances PC Z had the opportunity to resign instead.  He did so on 24 February 1996.
69	Having done so, however, he sought a further interview with Mr Bettison which took place on 2 May.  At that meeting PC Z for the first time gave an account of his treatment by a particular sergeant at an early stage in his career.  That account helped to explain for the first time some of the question marks that had been raised about his poor development.  The outcome was that PC Z was invited to withdraw his resignation.  He was re-appointed to the respondent’s force, posted to a different division and his probation was extended.  Since then he has completed his probationary period and has been confirmed in post.  Having learned of the impact upon PC Z of the sergeant’s treatment, Mr Bettison saw that sergeant.  He did so to discuss with him how very young and inexperienced officers can be overwhelmed by dynamic and energetic and sometimes impatient supervisors.”

11	That incident shows that undue pressure from supervisors is proper to be borne in mind by the Police when judging a probationer’s performance and that even substantial incompetence can thus be explained away and criticism can be nullified on that account.  That is relevant because Mrs Vento did complain about pressure from her supervisors.  In paragraph 73 the Tribunal records:

“73.  … She complained that her poor performance latterly was due to the treatment of her by the acting sergeants so that her self confidence was undermined and she ceased to be able to cope with even the simplest of tasks. ..”

It is true that the Tribunal never, in terms, decide how a male officer responsible for some lie comparable to the Mr Value lie would have been treated, but the Tribunal does hold as follows:

“83.  … Having said all that we also observe that there are elements in the treatment of all the comparators that lead us to conclude that the applicant was less favourably treated than a hypothetical male officer would have been in the same circumstances.”

12	Three things, I think, need to be said.  It cannot, in our view, be said that such a conclusion as to the treatment that would have been meted out to a hypothetical male comparator in like circumstances represents so outlandish an inference or extrapolation from the actual cases examined by the Tribunal as to be a conclusion without support of any evidence or otherwise to be such that the Tribunal, properly instructing itself, could not have arrived at it.  Secondly, the conclusion expressed by the Tribunal is wide enough by its reference to “in the same circumstances” to include the more particular case which the Notice of Appeal complains was not addressed.  Thirdly, it is all too easy to become nit-picking and pedantic in the approach to comparators.  It is not required that a minutely exact actual comparator has to be found.  If that were to be the case then isolated cases of discrimination would almost invariably go uncompensated.  It is thus the case that inferences will very frequently need to be drawn.  They are not, of course, to be drawn from thin air.  But, equally, the facts from which they are drawn do not have to be such that the inference found is the only possible conclusion which those facts could lead to.  It is properly to be left to the good sense of the Tribunal that also has the advantage of seeing and hearing the witnesses giving such explanations as they may of those surrounding circumstances.  

13	Here the Tribunal concluded as we have cited in respect of Mrs Vento being treated less favourably than would have been a hypothetical male officer in the same circumstances.  The reference to “the same circumstances” plainly is intended to include the Mr Value incident.  The Tribunal had itself referred to the admission of the lie on the subject only a few paragraphs earlier in their paragraph 74.  Moreover, Tribunals are encouraged to look to discrimination in the round, so to speak, rather than looking only at it incident by incident.  

14	Against that background of there having been a comprehensive general finding by the Tribunal, to complain of there being no express and separable reference to the way in which a hypothetical male probationer would have been treated in exactly the same circumstances as Mrs Vento in relation to the Mr Value incident, seems to us unjustified.  It is not a criticism which, in our view, identifies any error of law.

Misuse of Comparators
15	The second main head of argument in the Notice of Appeal is headed “Misuse of comparators”.  The Notice of Appeal refers to the four actual comparators as to whose cases evidence was given.  It proceeded to say that “None was a true comparator and the tribunal accordingly erred in law in relying on them”.  But the Tribunal did not treat any of the four cases, as we see it, as being a relevant actual comparator.  That is why the Tribunal turned, as it had to, to a hypothetical male officer in the same circumstances.  The Tribunal used the four actual cases as if building blocks in the construction of the neighbourhood in which the hypothetical male officer was to be found.  For the Tribunal to have relied on the four actual comparator cases in that way was not only not an error of law, it was, as it seems to us, the only proper way for it to proceed on the evidence put before it.  

Misunderstanding of Zafar
16	The third head of argument in the Notice of Appeal is headed “Misunderstanding of Glasgow Council v Zafar” ([1998] IRLR 36) (a reference to the well known case of that name).  The Tribunal in their paragraph 78, cite the most relevant paragraph from Zafar, as follows:

“The Act of 1976 requires it to be shown that the complainant has been treated by the person against whom the discrimination is alleged less favourably than that person treats or would have treated another.  In deciding that issue, the conduct of a hypothetical reasonable employer is irrelevant.  The alleged discriminator may or may not be a reasonable employer.  If he is not a reasonable employer he might well have treated another employee in just the same unsatisfactory way as he treated the complainant in which case he would not have treated the complainant less favourably for the purposes of the Act of 1976.”

17	If the Tribunal had said “The Police acted unreasonably, ergo there was less favourable treatment”, well then, plainly they would have fallen foul of Zafar, but we are quite unconvinced that the Tribunal relied on unreasonable behaviour by the Police in coming to a conclusion that Mrs Vento had been discriminated against in the sense of being treated less favourably than the hypothetical male comparator.  Rather the unreasonableness spoken to by the Tribunal was relied upon in the next stage, which was an examination of the explanation given by the Police of why she had been treated, in order to see whether that less favourable treatment did, indeed, have a sexual basis.  We need to look again at the paragraph already cited as to the hypothetical male officer:

“83.  … Having said all that we also observe that there are elements in the treatment of all the comparators that lead us to conclude that the applicant was less favourably treated than a hypothetical male officer would have been in the same circumstances.”

18	It is expressed as a conclusion on the subject of less favourable treatment and the reason for that conclusion is given as “elements in the treatment of all the comparators”.  The Tribunal, as we have already indicated, was drawing on the treatment of all the comparators in their construction of an inference of how the hypothetical male would have been treated.  No express reference there is given to the unreasonableness of the Police whatsoever and none is to be read into that passage, but that, of course, is not to say that the Tribunal could not properly have had in mind or did not have in mind, in coming to that conclusion, not only the view that they drew from actual comparators but also the whole course of treatment as to which the Tribunal had made many findings of primary fact.  It is only after that conclusion was reached in paragraph 83 that one comes across paragraphs 84, 85 and 86 where one does, indeed, find repeated references to unreasonableness.  In paragraph 86 the Tribunal said:

“86.  Having found less favourable treatment, we are obliged to look to the respondent for an explanation of the treatment of the applicant.  If we consider the explanation to be inadequate or unsatisfactory it is legitimate for us to infer that discrimination was on grounds of sex.  We have already characterised the conduct of the applicant’s supervisors and those who recommended her dismissal to the respondent as unreasonable.  We do not read Zafar as requiring us to dismiss the case in those circumstances.  For it seems to us that an unreasonable explanation is just as much an unsatisfactory explanation as any other in that class.”

19	It may be that the Tribunal, having concluded as they did in paragraph 83, had no need to examine explanations given for the conduct which Mrs Vento met but it cannot have been wrong for the Tribunal to have done so.  The Tribunal is saying, in effect, that given that Mrs Vento was treated less favourably than would have been the hypothetical male comparator, what reason does the Police give to explain that conduct?  Then they go on with the view that if no satisfactory explanation is given, well then, the absence of a satisfactory explanation can justify (but they do not say necessarily has to justify) a conclusion that the less favourable treatment was because she was a woman.  The Tribunal held that some views taken by the Police and some conduct on its behalf had, indeed, been unreasonable.  They find in paragraph 84 as follows:

“84.  We find that PC Knopwood and the acting sergeants unreasonably believed that the applicant was not making the grade. ..”

In paragraph 85, they say:

“85.  They [the Police] acted unreasonably in conducting the July tutorial like an inquisition for which the applicant was wholly unprepared. …”

Again, in paragraph 85, they say:

“Both Chief Inspector Bonnard and Mr Wilkinson acted unreasonably in the view they took of the evidence relating to the principal allegation against the applicant, that of dishonesty.”

Having concluded that an unreasonable explanation is an unsatisfactory one, as we have just cited, then the Tribunal moved directly, in paragraph 87 to this:

“87.  We do draw the inference that the reason for the less favourable treatment of the applicant was her sex.  But for the fact that she was a woman she would not have been treated in that way. …”

20	Unreasonableness on the Police’s part did not go to the issue of less favourable treatment, it went to an assessment of the validity of the Police’s explanation of why she had been treated as she had.  The Police had urged that she was not up the job and was dishonest.  The former was held to be unreasonable and the latter was based on an unfair inquisition.  The Tribunal could have added earlier findings in respect of other alleged shortcomings.

One shortcoming that is referred to is in paragraph 57:

“57.  Another issued raised with her was her failure to put the word ‘probationer’ on files submitted by her to the Criminal Justice Support Unit.  It was suggested that she did that deliberately because the unit would be less likely to send the file back for further work to be done. …”

But then, a little later, the Tribunal holds:

“Other probationer officers, however, failed to put the word ‘probationer’ on their files and they were not criticised for it.  Files were submitted through the sergeant’s tray.  It seems odd, therefore, that this should be raised as an issue with the applicant so late in the day.  We believe that it was deliberately made an issue in her case.”

A little later, in paragraph 59, another incident or shortcoming alleged against her is touched on:

“59.  She was also asked about the cryptic messages sent over the radio net back in April 1996.  She said she did not know whom they were from.  Again, it struck us as odd that that matter should be raised again in this context some fifteen months later.”

21	In their paragraph 67 the Tribunal said of Acting Chief Constable Wilkinson, who conducted the final case conference which led to Mrs Vento’s probation not being extended and to her therefore being dismissed:

“67.  …We thought that his focus on the applicant’s dishonesty as illustrated by her use of language in her self assessment and her lie to Acting Police Sergeant Rushton was unreasonable.”

22	Unlike the Zafar case, where the unreasonableness led improperly to a finding of less favourable treatment without a recognition that, if an employer was unreasonable to all, he was not discriminatory, here unreasonableness was being discerned in the reasons given for that less favourable treatment.  The Tribunal, in our judgment, was not guilty of the vice which the Notice of Appeal alleges it had been guilty of.  

Perversity
23	The next heading in the Notice of Appeal is perversity.  The Appellant focuses here on the Tribunal’s assessment of Acting Chief Constable Wilkinson’s conduct at the Force Case Conference held on 28 November 1997 in order to examine Mrs Vento’s case.  The Tribunal heard evidence as to that, including a tape recording.  Two matters especially needed explaining, a self-assessment form made by Mrs Vento and her lie to Acting Police Sergeant Rushton.  So far as concerns self-assessment, before the particular self-assessment that was criticised, PC Vento had lodged other ones that had apparently been satisfactory.  In paragraph 14 the Tribunal says:

“14.  …. Throughout her probationary period the applicant was required to complete written self-assessments.  PC Knopwood appeared satisfied with those documents.  He thought that they reflected the applicant continuing to monitor her performance.  She was seen to seek feedback where appropriate and to analyse the comments made to her.  …”

And a little later, in paragraph 15:

“15.  On 20 September the applicant completed another self assessment.  It was described by her supervisor as well written.  He observed that it contained evidence to back up her points and that it was balanced in that she had been honest about the areas requiring development.  …”

24	On 4 April 1997 she filed a further self-assessment form, but as will have been seen from those citations, it is not as if there was a history of deficiencies or other shortcomings in her self-assessment forms.  The subject of these forms was dealt with in paragraph 37, with the Tribunal’s findings as follows:

“37.  On 4 April the applicant completed yet another self-assessment.  She was later held to have been dishonesty in respect of two matters in this document.  The first concerned her attendance at a sudden death on 26 February 1997.  She said this:
‘On Wednesday 26 February 1997 I was asked by supervision to deal with a sudden death which had occurred at the Diplomat Hotel on Sunbridge Road.
Upon arrival I spoke with the landlady there who stated that one of her guests who had been living here because he was of no fixed abode had died during the night.  It came to light after making various enquiries that he had no next of kin to inform of his death.  As I was single crewed on this occasion I had no alternative but to deal on my own initiative and request a doctor to confirm life extinct and arrange mortuary staff to attend and remove the body.  It was then up to myself to complete the form 49, in order to inform the Coroner that there was no next of kin so that he could inform the relevant parties of his funeral arrangements.  I seized all his property of any value and booked them into the property stores.”

Going back to the Tribunal’s findings, rather than the citation from the self-assessment:

“38.  Exception was taken to the use by the applicant of the word ‘initiative’.  The objection was based on the assertion that Acting Sergeant Rushton had briefed the applicant as to what to do before she went to the Diplomat Hotel.  The applicant says that she was not briefed in detail because she had pointed out to him that she had attended sudden deaths before and knew what to do.  The applicant does agree that she contacted Acting Sergeant Rushton with a question about disposal of the deceased’s property.
39.  As a matter of language, we think the sentence complained of is a blinding statement of the obvious.  The applicant was only saying that she was alone and therefore had to use her initiative.  She might have said, as she told us, that she had also had to deal with curious onlookers, something about which she was not likely to have been briefed.”

That was one of the points.  The other point was, as held by the Tribunal, (but to which we have added emphasis) as follows:

“40.  The other statement in the self-assessment for which she was criticised as dishonest concerned the circumstances in which she came to participate in the drugs raid described above.  She said this (and this is another quote from her self-assessment form):
“Another occasion was on Wednesday 2 April when I volunteered to help the CID at Odsall with a rather large drugs raid.  Over 60 officers were involved and around 16 addresses were searched and many arrests were made.  This operation had taken over 6 months to put together and I felt very proud to be taking part.  This all came about due to some information from my informant regarding heroin being hidden in a garden at … .  When I informed the detective sergeant at Odsall he was very interested and asked me if I would like to take part.  As this all took place on one of my rest days I believe that on this occasion I was proved to be very reliable.”

To complete the reference the Tribunal goes on:

“41.  The applicant was accused of gilding the lily by giving the impression that the whole operation had been as a result of the information which she had obtained.  Since that was plainly nonsense, it could only have been fair to the applicant to read the two sentences as we have no doubt she intended them to be read.  That is that her participation in the drugs raid came about because of the information which she had obtained from the prostitute who later became her informant.”

25	In other words, the “this” in the expression “this all came about” was manifestly not the whole six months or longer of a Police operation involving 60 officers but the rather less self-aggrandising fact that the Detective Sergeant at Odsall had invited her to take part, even on her rest day.  There is a further reason for regarding as nonsense any reading that the whole operation was being described as being a result of information which PC Vento had obtained.  It is this.  The raid was on 2 April 1997.  She herself asserted in her self-assessment form that the operation had taken over six months.  It must therefore have started not later than 1 October 1996.  But the incident when she got information from the prostitute, which is described by the Employment Tribunal, was not until 30 March 1997 - see paragraphs 35 and 36.

26	Returning to Acting Chief Constable Wilkinson’s dealing with this criticism of Police Constable Vento at the Case Conference, seven months or more after the self-assessment form was filed, the Tribunal said:

“We thought that his [the Acting Chief Constable’s] focus on the applicant’s dishonesty as illustrated by her use of language and self-assessment and her lie to Acting Police Sergeant Rushton was unreasonable.”

27	To turn to that other criticism, the lie to Acting Police Sergeant Rushton, that is, of course, a reference to the Mr Value incident, which we have already touched on.  That there was a lie was admitted at the Tribunal hearing.  Mrs Vento said that she had been put under unusual pressure and scrutiny.  The lie, as we have already mentioned, deceived no one.  Sergeant Rushton knew that she had had a lift and the Tribunal concluded, in the passage which we have already read, that, had she not been under scrutiny and pressure, she would not have lied.  She believed that if she told the truth he would have insisted that he had told her to walk.  As will have been seen, the Tribunal held that Acting Chief Constable Wilkinson’s focus on that issue was unreasonable.  

28	The Appellants argue in their Notice of Appeal by reference to these incidents as follows:

“12.  The Appellants submit that honesty is an essential quality in a police officer, and that it is perverse to criticise a decision to terminate the service of any police officer, or a decision not to confirm in post any probationer police officer, who tells a lie in the course of his or her employment.”

29	There are another two further aspects that were raised beyond the ones in the Notice of Appeal.  It is said that Mrs Vento was less than frank with her trainers.  On or about 1 February 1997 she had been placed on what is called “supplementary report” and that, as the Tribunal held, meant that she had problems to address over and above those to be expected in an officer at her developmental stage.  

30	Over three months later she went to a post foundation 3 training course.  As to that, the Tribunal said in their paragraph 42:

“42.  The applicant attended her post foundation 3 course at the force training school between 7 and 18 April 1997.  Again she was criticised later for her lack of honesty in not telling her trainers there that she was on supplementary reports.  In their assessment dated 18 April they recorded that they were somewhat surprised that she had not mentioned in her first tutorial that she was on such reports and instead had said that she had no problems.  The applicant explained to us that she had assumed that her PDO had passed on the information about supplementary reports to the trainers.  Our view is that the respondent’s officers were unreasonable to criticise the applicant as dishonest for not making that disclosure.  That is not to say she is free of blame.  She may have been less than frank but to accuse her of dishonesty is over-egging the pudding.” [that is a reference back to the passage that I have already cited].  

31	Without knowing precisely what the question was that was put to her it is impossible to judge how far the answer “I have no problem” was improper.  The Tribunal appear to accept her answer that she would have expected the trainers to have been already aware that she was on supplementary report.  The Tribunal held that it was unreasonable to criticise her as dishonest in this regard.  Dishonesty was the complaint that was put to her and it was successfully rebutted.  To inflate the incident into one of dishonesty so marked as to lead to a conclusion that the Tribunal was guilty of paying insufficient regard to the need for an honest police force would be little short of absurd.

32	A further issue is raised by reference to paragraph 66 of the Tribunal’s Extended Reasons.  In paragraph 64 there is a reference to Chief Inspector Bonnard saying that:

“64 .. …[He] was satisfied that the applicant was not going to reach the standard expected.  He recommended that the applicant’s services should be dispensed with under regulation 15.”

And a little later:

“He said that she was dishonest with herself and her colleagues.  Her dishonesty was about her ability to do the job.  She was dishonest in her relationships with her supervisors.  He was also concerned about her lack of self-motivation.”

Then in paragraph 66 of Acting Chief Constable Wilkinson it was held:

“66.  He was also concerned by evidence of a lack of self-discipline in the areas of file preparation and paperwork.  He thought that she had shown little willingness to confront her own shortcomings and sought either to find excuses or deflect the blame.  There was something in that because we noted that much of the cross-examination on behalf of the applicant was an exercise in self justification.”

33	With respect to the Tribunal, that last sentence may be unfair.  First of all, it is not known how far, if at all, Mrs Vento’s Counsel’s cross examination was on Mrs Vento’s own direct instructions.  There is no reason to think that her Counsel was not as free to raise or not to raise issues and as free as is customary to judge how to raise such issues as were chosen to be raised and, of course, the manner of a cross examination on or after July 1999 could not have been a factor to be carried against Mrs Vento at her dismissal on 8 December 1997.

34	We, of course, have seen no witnesses.  We do not even have Chairman’s Notes.  At best Chairman’s Notes do not purport to consist of every word said and it is worth having in mind the observations of Lord Hoffman in the recent case of Piglowska v Piglowski [1999] 3 All ER 632 at 643.  The Employment Tribunal, needless to say, never held that dishonesty is not an essential quality in a Police Officer but a sense of proportion had to be retained in dealing with shortcomings in this as in any other case.  As Mr Jeans says, there is a relativity, if not in honesty or dishonesty, then at least in how dishonesty is to be dealt with on the facts of a particular case.  It is especially the task of the Tribunal, so to speak, as a carefully balanced and experience jury, to rule upon where that sense of proportion leads one in the circumstances laid in front of them.  Here, the Sergeant Rushton lie deceived no one.  It was a lie by someone under pressure and scrutiny.  There would have been no lie but for that pressure and scrutiny.  The subject matter of the lie was not shown to be one of any operational or other significance.

35	Turning to the self-assessment, when properly read it did not make the self-promoting claims that it was accused of making.  On the evidence which the Tribunal heard, as to which we cannot make a full assessment because it is not fully in front of us, the Tribunal held that Acting Chief Constable Wilkinson sought to make too much of these matters at the Case Conference then held and there held at his focus on the lie and on the supposed self-inflating self-assessment as illustrations of dishonesty was found to be unreasonable.  The Tribunal heard evidence as to the Chief Constable’s approach, and we have already indicated the sum of that, but in the end of paragraph 67 the Tribunal said that:

“67.  … Our impression listening to the tape and hearing Acting Chief Constable Wilkinson give evidence was that he did not approach the applicant’s case with an entirely open mind.  We think it unlikely that he would not have been influenced by all the matters set out in the executive summary, even though he said that he discounted some of them.  …”

The executive summary being, as it were, the case for the prosecution, was what Constable Vento was expected to be questioned upon at the Case Conference.

36	A false accusation was put to the Chief Constable by way of that executive summary.  It was unreasonable in the sense that it inflated incidents into matters of dishonesty which, as we have seen, could not fairly be so regarded.  Explanation was then sought but none, as we have seen, is regarded as satisfactory.  The soil was thus fertile for the growth of inference, which was what the Tribunal turned to.  It is impossible, on the material we have, to describe the conclusion to which the Tribunal reached as impermissible or perverse or totally devoid of support from any evidence.  Indeed, on the material we have seen, the conclusion, so far from being perverse, would seem to be close to inevitable.  We have in mind in particular the passage from Stewart v Cleveland Guest Engineering Ltd [1996] ICR 535, heard at the EAT under Mr Justice Mummery where, at page 543, the EAT said:

“What matters is the substance of the tribunal’s decision, looked at ‘broadly and fairly’ to see if the reasons given for the decision are sufficiently expressed to inform the parties as to why they won or lost the case and to enable their advisers to identify an error of law that may have occurred in reaching the conclusion.  Viewed in that way, the decision of the industrial tribunal is not perverse.
We recognise that in this area no one is better placed to make a decision on the facts of a particular case than the industrial tribunal.  It heard evidence from the witnesses …”

Departure from the Pleadings
37	Last of the headings addressed by the Notice of Appeal is heading “Departure from the pleadings”.  Mrs Vento’s IT1 is quoted from by the Tribunal.  In their paragraph 2 they say:

“2.  The applicant presented her originating application on 12 February 1998.  In it she complained of racial and sexual discrimination.  She gave the grounds of her complaint as follows:
‘I believe I have been discriminated against on the grounds of my sex and ethnic origin, in that I was never offered an alternative posting or extension of my probation.  The decision to terminate my probation was taken extremely late in my service and this was after a period of illness due to my domestic circumstances’.”

A little later, she says:

“I believe whether consciously or subconsciously a decision was made by those responsible for my probation that I was a liability with regard to my childcare and not that I would [not] make a police officer.”

Further and Better Particulars were raised.  The Tribunal deals with that in paragraph 4:

“4.  Also on 3 March, the respondent asked for further particulars of the applicant’s case.  A representative of the Police Federation replied by letter dated 11 March in these terms:
‘The area of discrimination is that other officers have been given changes in their postings, an extension of their probation to facilitate the successful complete of their Probation.
The changes in attitude was on a personal basis.  A distancing of themselves in the approach to PC Vento.  A reluctance was encountered to assist or help her with the personal trauma she was experiencing at that time’.”

38	The Tribunal heard Counsel on both sides below, Counsel experienced in this area of the law.  The hearing began on 29 June 1998.  It is not entirely clear but it is not improbable that there was some very brief opening on behalf of Mrs Vento’s Counsel explaining, however briefly, what the nature of the case was.  It may be, though, that the chair indicated that none was required, but, even if that was the case, then that would have signified that the Tribunal knew the kind of case that Mrs Vento was about to enlarge upon.  The hearing was abandoned for the time being two days later because of an extraordinary development.  The Tribunal deal with that in paragraph 5:

“5.  … It was abandoned two days later when the applicant’s advisers decided that they wished to apply for judicial review of the respondent’s decision to grant access to a potential witness, PC Summerscales, but only on condition that a senior officer was present whilst he made a statement.  …”

39	That issue was compromised but it was not possible to fix a new date until 19 July 1999 and the case then ran for a further 12 days down to a last hearing day on 7 September 1999.  We mention that timetable because had the Respondent below, the Appellant here, been taken in any way by surprise by the way the evidence or argument was leading, then he had ample opportunity to object to the reception of evidence or to the raising of issues by way of submission issues that that requires formal amendment, or to ask for any adjournment beyond that which the long timetable itself afforded.  The Appellant’s complaint in this part of the Notice of Appeal begins by recognising the inevitable.  Paragraph 14 of the Notice of Appeal says:

“14.  The Appellant does not submit that employment tribunals are required to adopt a formalistic attitude to pleadings. …”

And then, they continue:

“Nevertheless in this case the tribunal erred in law in themselves suggesting during the evidence, and then finding, that the Respondent was treated less favourably (it is not clear in what respect) by reason of her private life.  This had not been suggested by the Applicant in her originating application.”

40	Mrs Vento’s IT1 had, as we have seen, referred to her claim that the decision not to extend her probation and therefore, in effect, to terminate her employment, was, indeed, by reference to one aspect of her private life, “that I was a liability with regard to my child care”.  In fact her IT1 had also said “I believe the discrimination started shortly after the breakdown of my marriage”.  She also referred to her family commitments.  Accordingly, aspects of her private life were plainly going to be required to be examined and it was also plain that Mrs Vento was claiming that there was a causal link between aspects of her private life and the way in which she was treated.  It is true that some at least of those aspects were not “pleaded” in any formal sense.  In particular, she had not complained in her IT1 or in her Further and Better Particulars that she was less favourably treated because of an incident in December 1996 at Wakefield at a training course.  That lead to evidence and submissions and we need briefly to say something of the background to it.  Her husband at that time was threatening to go away and leave her with the children to look after.  That would have made it impossible for her to attend the course.  She obtained permission from the Police to attend the course not as a day student, as would have been normal, but as a resident.  She told her husband she was going to Warrington.  In fact, she went to the residential course at Wakefield.  Unfortunately, her husband saw the car in Wakefield.  She was thus in trouble with him for having misled him but she was also in trouble with the Police.  The Police had reason to believe that she had had another man in bed with her whilst at the residential course.  It was held by the Tribunal that she had, indeed, had another police officer in bed with her, a PC Warburton.  It was quite plain that she was not believed on this subject.  A Sergeant, Sergeant Adams, had raised the matter with her and the Tribunal in their paragraph 19 say:

“19.  … He interviewed the applicant.  He was concerned to establish whether her visitor had been a member of the public.  It was also contrary to the rules of the training school for residential students to share their rooms with others.  Sergeant Adams was not concerned about the morality of the applicant’s behaviour.  It was not the first time such a thing had happened.  Initially the applicant denied all knowledge of the man’s presence.  She then said that a man had locked himself out of his room when using the shower so she had allowed him to dry off in her room.  Sergeant Adams then confronted the applicant with the condition of the bedding which provoked an angry response from her.  When he offered her confidentiality and said that no disciplinary action was being considered, the applicant conceded that she had had a man in the room but still denied any knowledge concerning the condition of the bedding.”

The Tribunal, as we mentioned, held that she had, indeed, slept there with PC Warburton and they recognised there was a rather unattractive aspect to things.  In their paragraph 20, they say:

“20.  … She was in a difficult position in which her husband had already called the training school and said that she had lied to him about her whereabouts, thus making it appear that she was using the school as a means to conduct an affair. …”

The Police had asserted that this was a case, yet another case in their view, of dishonesty on Mrs Vento’s part.  The Tribunal said this:

“77.  … Mr Jones for the respondent sought to confine the evidence of what happened at the force training school to the issue of the applicant’s honesty but it seems to us that, once evidence is before us, we are free to interpret it in the context of the case before us.  The context is one of alleged sex and race discrimination.  Our obligation under Rule 9 (1) is to make such enquiries of persons appearing before us and witnesses as we consider appropriate and otherwise to conduct the hearing in such manner as we consider most appropriate for the clarification of the issues before us and generally to the just handling of the proceedings. …”

A little later, they said:

“It seems to us unnecessarily formalistic to have required the applicant to amend her originating application when it became plain during the course of the proceedings from the evidence that the applicant’s private life had become an issue in the context of sex discrimination.  Referring again to Rule 9 (1) we are obliged, so far as it appears to us appropriate, to avoid formality in our proceedings.”

41	We take into account that the IT1 had raised points as to Mrs Vento’s domestic circumstances, the breakdown of her marriage, her family commitments and her liability with child care.  We bear in mind further, that the Police were content, as it seems, to seek to derive advantage, if it could, from the Wakefield incident, asserting it was an example of dishonesty which therefore put the whole of the incident before the Tribunal.  We notice the consequential apparent lack of objection by the Police at the hearing below to the Tribunal’s reception of evidence as to the incident and we notice also that there was a failure either to insist on amendment to the IT1 or to object to reliance by Mrs Vento on the incident as a trigger for discrimination and a failure also to request an adjournment in order that the issue could be countered.  The eventual conclusion of the Tribunal on the subject was this:

“87.  … The evidence of Police Sergeant Smith revealed that the applicant’s private life was the subject of adverse comment at her station.  She was also seen as a probationer who was struggling because of her domestic circumstances.  We believe that, for example, there was a view that the applicant had arranged with PC Knopwood to be a residential student at the force training school so that she could carry on her relationship with PC Warburton without her husband knowing.  We do not think a similar adverse view would have been taken of a male police officer who had a reputation as a ‘womaniser’ like PC Hudson/Smith.  …”

42	The Police tried to turn the Wakefield incident to its advantage.  It is not uncommonly found that one cannot have the plum without the duff.  Indeed, so far as concerned the Police here, it transpired that there was no plum, only duff.  Against the background that we have mentioned, including the highly skilled representation which the Police had the advantage of below, we cannot characterise the Tribunal’s reliance on the incident as being in error of law and we so conclude despite the fact that it had not been expressly raised in the IT1 or, indeed, in the Witness Statement of Mrs Vento.  There is reference in the skeleton argument to the case Chapman v Simon [1994] IRLR 124 in the Court of Appeal.  It has not been actually orally drawn to our attention but we cannot ignore the reference in the argument.  In that case, at paragraph 33 (3), on page 128, :Lord Justice Balcombe says:

“In order to justify an inference, a Tribunal must first make findings of primary fact from which it is legitimate to draw the inference.  If there are no such findings, then there can be no inference:  what is done can at best be speculation.  There are no primary facts mentioned by the majority of the Industrial Tribunal as justifying their inference that ‘subconsciously or unconsciously [Ms Chapman] was affected in this instance by the fact that [Ms Simon] is black’.  Indeed, such primary facts as they did find - that Ms Chapman’s conscious attitude to race is impeccable, and that she did not make the offensive remarks which Ms Simon had alleged she had done – point in exactly the opposite direction.”

43	However, it cannot be said that in this long and careful decision there are no relevant findings of primary fact.  The 34 pages of close typing are replete with them.  We must look, too, if Chapman v Simon is relied upon, to Lord Justice Peter Gibson’s comments at paragraph 43:

“It is of the greatest importance that the primary facts from which such inference is drawn are set out with clarity by the Tribunal in its fact-finding role, so that the validity of the inference can be examined.  Either the facts justifying such inference exist or they do not, but only the Tribunal can say what those facts are.  A mere intuitive hunch, for example, that there has been unlawful discrimination, is insufficient without facts being found to support that conclusion.”

And then, a little earlier in his paragraph 42, Lord Justice Peter Gibson says:

“… it is the act of which complaint is made and no other that the Tribunal must consider and rule upon.  … If the act of which complaint is made is found not to be proven, it is not for the Tribunal to find another act of racial discrimination of which complaint has not been made to give a remedy in respect of that other act.”

44	So far as primary facts are concerned, we have already dealt with their sufficiency to support the inference which the Tribunal drew.  As for the act of which complaint is made (and no other being ruled upon) the chief complaint made by Mrs Vento was that by reason of sexual discrimination she did not have her probation extended and therefore, of course, had her employment terminated.  It is true that the Tribunal never in terms say that, but for her sex, she would have had her probation extended but when one collects what they do say, that is, as we see it, sufficiently plainly their conclusion.  They recognise that her complaint was as it was by citing her IT1, that she was not offered an extension of probation.  They recognise that consideration would have been given by the Police to an extension:  see paragraph 63.  They held that PC Knopwood asked Chief Inspector Bonnard to consider that extension:  see paragraph 63.  They held that Chief Inspector Bonnard refused the extension:  see paragraph 63 and that a divisional Case Conference should go ahead.  They held that Chief Inspector Bonnard recommended her services be dispensed with under Regulation 15:  see paragraph 64.  A conclusion of such a nature under Regulation 15 involved a view taken by the Police that she was not physically or mentally fitted to perform the duties of her office or was not likely to become an efficient or well conducted Constable:  see paragraph 1.  Chief Inspector Bonnard based his case chiefly on a view that she was dishonest:  see paragraph 64 - and the Tribunal very much had probation and its extension in mind.  Comparator PC Z had his probation extended:  see paragraph 69.  Comparator PC P, a probationer, was not dismissed.  Comparator PC A was a probationer and the nature of Mrs Vento’s case, as finally submitted, was plainly recognised by the Tribunal.   In paragraph 73 they say:

“73.  The applicant submitted that she had suffered unlawful sex and race discrimination by being dismissed from the Force.  Further, she complained of discrimination in the manner in which she had been supervised culminating in that decision.  …”

45	When the Tribunal concluded, as we have cited earlier, that Mrs Vento was less favourably treated than a hypothetical male officer, then, in context, the less favourable treatment being upheld was that which she had complained of and that which the Tribunal had recognised as being her submission, namely that she was being dismissed rather than having her probation extended.  It would, of course, have been better had that been underlined in express language but one is not to take a tooth comb through the Tribunal’s reasons.  It is surely plain enough that she complained of dismissal by way of non-extension of probation on grounds related to her sex and that that complaint was upheld by the Tribunal.  There is thus no flouting of Lord Justice Peter Gibson’s dictum that only the complaint made is the complaint to be ruled upon.  He was not saying that every matter which might lead to or away from an inference of less favourable treatment has expressly to be asserted in writing in the IT1.  That would be an impossibly stringent requirement, given that the complainant seldom knows what is locked in the bosom of the employer or of his or her follow employees, nor what they have done or said outside his or her earshot.  To insist on that would be severely to restrict the sensible approach to inference which is endorsed by the well known case of King v The Great Britain-China Centre.

46	The Tribunal in such cases is left with a broad discretion, to be exercised judicially but which is otherwise unfettered, to detect when and where a complaint, as it is developed in evidence and by way of submission, begins to lurch outside the range of that which the Respondent can fairly be expected to deal with in the course of the case.  When one has experienced Counsel engaged in the case then the Tribunal can reasonably look to them to object or to resist objection when any such lurch threatens.  Here the Tribunal considered whether there was such a lurch as to require formal amendment.  They held no such amendment was required.  Mrs Vento’s basic complaint remained the same - dismissal by way of non-extension of promotion by reason of sexual discrimination - and that was acknowledged by the Tribunal to be her complaint and was the matter that was upheld by the Tribunal.  We do not see any error of law under this particular heading of the Notice of Appeal.

47	There are, undoubtedly, weaknesses in some passages in the Tribunal’s reasoning.  Paragraph 82, for example, is very hard to follow and more explicit conclusions would have been welcome.  But if we look to the substance of the decision broadly and fairly, as that citation from the Stewart case suggests, then we find no error of law and, finding no error of law, we must dismiss the appeal.