Appeal No. UKEAT/0087/10/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 October 2010

Before
HIS HONOUR JUDGE PETER CLARK
MR R LYONS
MRS M V McARTHUR BA FCIPD

MR A POWER	APPELLANT

GREATER MANCHESTER POLICE AUTHORITY	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR A POWER
(The Appellant in Person)	
For the Respondent	MR SPENCER KEEN
(of Counsel)
Instructed by:
Greater Manchester Police
Legal Services
Chester House
Boyer Street
Manchester
M16 0RE	

SUMMARY
RELIGION OR BELIEF DISCRIMINATION

Whether Claimant dismissed on grounds of his beliefs.  Answer, by Employment Tribunal; No – it was the expression of those beliefs which was in part the cause of his dismissal.  No basis in law for interfering with that finding.

HIS HONOUR JUDGE PETER CLARK
Introduction
1.	This case has been proceeding in the Manchester Employment Tribunal.  The parties are Mr Alan Power, the Claimant, and Greater Manchester Police Authority, the Respondent, as we shall describe them.  We have before us for full hearing an appeal by the Claimant against the judgment of a Tribunal chaired by Employment Judge Goodman promulgated with Reasons on 8 December 2009 following a hearing on 23 and 24 November dismissing his complaint of unlawful discrimination by the Respondent contrary to the provisions of the Equality (Religion or Belief) Regulations 2003 (“the 2003 Regulations”).

Background
2.	The Claimant is a committed spiritualist.  An issue arose in this case as to whether his beliefs were protected by the 2003 Regulations.  At a pre-hearing review held on 3 August 2009 before Employment Judge Russell, that Judge held that they were.  I later dismissed an appeal by the Respondent against that ruling on 12 November 2009 (EAT 0434/09/DA).

The Facts
3.	The Goodman Tribunal found the following facts.  In mid-August 2008 the Claimant applied to the Respondent for the post of Special Constabulary Trainer.  He was successful and commenced work in that role on 6 October 2008.  Shortly thereafter the Respondent obtained statements from two police officers regarding alleged incidents involving the Claimant when he had volunteered his services as a role player at two separate police training establishments.  It was said that his behaviour and attitude was very disruptive and unhelpful.

4.	During the course of an investigation a CD-ROM and posters, which he had provided to other police forces before his employment with the Respondent began, were collected.  The material and information produced by the investigation was considered by Chief Inspector Butt who arranged a meeting with Christine Joyce, a Human Resources Manager.  Following that meeting on 24 October 2008, Ms Joyce wrote to the Claimant terminating his employment with immediate effect.  Her reasons for termination were expressed in this way:

“Information has come to light regarding previous work with Neighbouring Forces and your current work in the psychic field which is not compatible with employment in Greater Manchester Police.  I can confirm that if this information had been made available to us prior to you joining the force as a member of police staff, we would not have offered you employment.”  

5.	He was informed of his right of appeal against that decision.  Ms Joyce did not give evidence before the Tribunal.  She had left the Respondent’s employment and no witness order had been sought to compel her attendance.  However, the Respondent adduced in evidence a note from the computer which she had used at work which said:

“In respect of comments re ‘psychic’ - religion was not a consideration it was intended to highlight the distribution of posters and the CD which Mr Power had been responsible for distributing.”  

6.	An appeal hearing took place before Ms Cornwall and Ms Harrison on 21 January 2009.  Ms Harrison, who interviewed the two police officers who had made statements in relation to the Claimant’s earlier role play activities, prepared a report for Ms Christine Brereton, Senior Executive Head of People and Development Branch.  Based on her recommendations, Ms Brereton dismissed the Claimant’s appeal by a letter dated 8 April 2009.  In addition to referring to the earlier role play exercises, she said this in her letter to the Claimant:

“I am satisfied that the posters and DVD were not appropriate material to bring into police premises as they did not relate to police business but to matters that are of a personal interest to yourself.  The subject matter is irrelevant but does indicate a lack of understanding of the boundaries between your personal life and the organisations you are either assisting or employed by.  Therefore I am satisfied that the reference to ‘work in the psychic field’ [this is a reference to the expression used in Ms Joyce’s dismissal letter of 24 October] was not in relation to your belief but on the basis that the material was inappropriate.”  

7.	The Claimant then presented his form ET1 dated 15 April 2009 to the Tribunal.  He there complained of discrimination on the grounds of his religion or belief relying particularly on Ms Joyce’s reference in the dismissal letter to “his current work in the psychic field”.

The Law
8.	By regulation 3(1)(a) of the 2003 Regulations:

“(1) For the purposes of these Regulations, a person (‘A’) discriminates against another 	person (‘B’) if -
(a) on the grounds of the religion or belief of B….. A treats B less favourably than he treats or would treat other persons.”

9.	Regulation 6(2) renders it is unlawful for an employer to discriminate against a person whom he employs:

“(d) by dismissing him, or subjecting him to any other detriment.”

10.	Regulation 29 imports the reverse burden of proof considered by the Court of Appeal in Igen v Wong [2005] ICL 931.  The expression “on the grounds of religion or belief” in regulation 3(1)(a) has been considered in Islington London Borough Council v Ladele [2009] ICR 387 EAT, Elias P affirmed (CA) [2010] ICR 532 and in Chondol v Liverpool City Council UKEAT 0298/08/JOJ, 11 February 2009, EAT, Underhill P.  We have also been referred by Mr Keen to the judgment of Underhill P in McFarlane v Relate [2010] ICR 507, particularly paragraphs 17 to 18.

11.	The Tribunal in the present case appears to have drawn particular assistance from Chondol (see their Reasons at paragraphs 19 and 22).  In that case, the Claimant, a social worker and committed Christian, was dismissed by his employer on the ground that he was in breach of its prohibition on the over-promotion by social workers of his or her religious beliefs.

12.	The Tribunal dismissed this complaint of direct religious discrimination as well as that of unfair dismissal.  That decision was upheld on appeal.  At paragraph 23 of his judgment Underhill P accepted, in answering the “reason why question” - postulated by Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICL 337, 341-2 and adopted by Elias P in Ladele - the Tribunal was entitled to draw a distinction between treatment complained of on the ground of his religion (unlawful) and on the ground that he was improperly foisting it on service users (lawful).

The Tribunal Decision
13.	It is clear from paragraphs 21 to 22 of their Reasons that the Tribunal applied the classic Igen approach.  One member considered that the Claimant had failed to raise a prima facie case of discrimination, absent an explanation by the Respondent at stage 1 and, thus, his claim failed without more.  The majority accepted that he had passed the stage 1 hurdle on the basis of the language used by Christine Joyce in her dismissal letter of 24 October.

14.	However, the majority went on at paragraph 22 to accept the explanation for the dismissal advanced by the Respondent.  The reason why he was dismissed was not because he held the protected beliefs but because (a) mainly, his previous conduct as a volunteer indicated that he was quite unsuitable to train young police officers and (b) the delivery of posters and CD-ROMs which, although related to his beliefs, proved an unacceptable way of expressing those beliefs.

The Appeal
15.	The issue in this appeal is succinctly stated in the judgment of His Honour Judge McMullen QC following a preliminary hearing in this case held on 29 April 2010.  At paragraph 5, he said:

“The second issue relates to the point of law at the centre of the case which is the passage we have cited above.  It seems to us reasonably arguable that the Tribunal has decided that at least in part the decision to dismiss the Claimant invoked the Claimant’s belief for that is how we construe the words “this view was based mainly on ...”  If the Claimant’s belief did contribute to his dismissal then it would likely be unlawful discrimination.  That issue, therefore, will go to a full hearing.”  

16.	That is a reference to the reasoning of the Tribunal majority at paragraph 22 of their Reasons.  As we read that paragraph, the majority accepted the Respondent’s evidence that there were two reasons for dismissal.  The principal or main reason was the Claimant’s behaviour as a volunteer at the earlier training sessions with other forces.  The secondary reason was not his psychic beliefs but the way in which he expressed those beliefs in the material which he had sent to other forces and which had been collected during the Respondent’s investigation.

Conclusion
17.	We are quite satisfied, on the authorities referred to (see especially The Master of the Rolls in Ladele at paragraph 35) that a distinction falls to be drawn between treatment on the grounds of a person’s beliefs and on the grounds of the manifestation of those beliefs.  That was the point in Ladele, Chondol and McFarlane.  Having correctly directed themselves as to that distinction in law the Tribunal majority, in our collective judgment, permissibly found that the reason for the Respondent’s dismissal of the Claimant was, in part, the manifestation of his spiritualist beliefs in the material which he had earlier distributed, not the fact of his beliefs.   Accordingly, there is no error of law disclosed in this appeal and it must be dismissed.