The Claimant, a senior officer, brought Employment Tribunal proceedings seeking substantial compensation from a Police Force which they alleged had discriminated against them on the grounds that they were gay, victimised them and treated them unfavourably because they werethey were a whistleblower. All the claims were dismissed on 22nd February 2016. The ET anonymised the names of the parties in order to protect their identities.

The thrust of the Claimant’s claims before the ET were that the Force investigated them, brought misconduct proceedings and intended on sending a harmful reference to their new employer because they had made allegations discrimination, had “blown the whistle” and was gay. As a result of their alleged treatment, the Claimant resigned, claiming automatically unfair constructive dismissal (under s.103A ERA).

 The Background 

Over a period of about 18 months, the Claimant had involved himself with a friend’s (UD) application to become a Special Constable. It was alleged, for example, that the Claimant asked a member of the vetting team to reconsider UD’s application, which had been rejected owing to a vetting failure. It was also alleged that they approached another senior officer believed to be interviewing UD and said that UD was a good mate, a good bloke and that they would make a good special constable. 

Following the latter allegation, the officer, who believed that they had been “tapped up”, raised a concern about the Claimant’s involvement in UD’s application and the status of the application itself.  

An extensive investigation was commenced and concluded by the Professional Standards Department, following which the Claimant was to face a full powers misconduct hearing. However, before the hearing was convened the Claimant left for employment elsewhere. In the process of taking up the job, the Claimant sought a reference from a civilian member of staff, who provided them with a reference which did not refer to the pending misconduct proceedings or their previous warning.  When this came to the attention of an Assistant Chief Constable, and following legal advice, the Force decided to send a corrected reference to the Claimant’s new employer. On being notified of that, the Claimant successfully sought an injunction to prevent the Respondent from sending the corrected reference. 

Before the Employment Tribunal 

The thrust of the Claimant’s claims before the ET were that the Force investigated them, brought misconduct proceedings and intended on sending a harmful reference to their new employer because they had made allegations discrimination, had “blown the whistle” and was gay. As a result of their alleged treatment, the Claimant resigned, claiming automatically unfair constructive dismissal (under s.103A ERA). 

Whilst there were some disputes of fact over the nature and the extent of their involvement, the gravamen of the allegations that the Claimant was to face at misconduct proceedings turned on the Claimant’s motivations in doing what they did. If their involvement, however ill thought out, was benign in nature then it is unlikely that their conduct would have amount to misconduct. If, on the other hand, their involvement was motivated by a desire to influence the recruitment of a personal friend to the position of Special Constable, then that may well have amounted to misconduct. 

Whilst the issues before a misconduct panel would not have been identical to those before the ET, the issue of the Claimant’s motivation was a key factual question to be determined by both the misconduct panel (had it heard the case) and the ET. In the ET proceedings, it was potentially relevant to the issues of whether their whistleblowing complaints were made in good faith, the issue of their credibility more generally and the reasonableness of the investigation. Following detailed and careful cross examination of the Claimant on the subject, the ET found that:-

at no time did the Claimant himself ever raise or seek to raise with officers senior to himself any concerns that they might have in respect of [their friend’s] application and the treatment of it by the Force. He has been at pains … to persuade us that their interest in the matter was a concern that the Force was or may be operating discriminatory policies…. We do not find them to have been motivated by a general and dispassionate concern. There is no evidence that they made any enquiry about any other candidate either in UD's recruitment exercise or any other. There is no evidence that they expressed any concern about any other individual or group of individuals who were the subject of those recruitment exercises….. at no time did the Claimant seek to speak to [officers of ACPO rank] about their concerns. We are satisfied that their interest was confined to progressing [their friend’s] application alone.

Having made that important finding of fact, the ET then went on to find that the Force was genuinely concerned about the Claimant's apparent participation in the efforts to help their friend to be appointed to the office of Special Constable. The finding that the Force had bone fide motivations in conducting the investigation and instituting misconduct proceedings was crucial to this case because it was central to the victimisation, discrimination and whistleblowing complaints.  

The ET sought to distinguish the Claimant’s actions which went “way beyond a simple query about an individual's progress and [was] easily and objectively recognizable as an attempt to improve [their friend’s] position in the process” and beyond that of an “an officer seeking to support the recruitment of a cherished son, daughter or other relative into their chosen profession, or indeed of that interested in the fortunes of a friend”. The ET went on to find that the decision to investigate the Claimant was both reasonable and non-discriminatory, holding that the Force took seriously concerns over the integrity of its officers. 

On the subject of the corrected reference, the ET rejected the Claimant’s complaint, finding that there was ample evidence that the relevant ACC was genuinely troubled by a belief that misleading information had been given to the Claimant’s prospective new employer. 

The ET further accepted the Respondent’s description of the law relating to automatically unfair dismissals in whistleblowing claims, namely, that “Claimant's resignation must be shown to have been visited upon them because they made a protected disclosure. Again, to use [Mr Moon's] helpful phrase, this is a complaint that "piggybacks" on the complaints that we have previously dealt with” 

At a more general level of observation, this case highlights that although in unfair dismissal proceedings there is often a mismatch between what the ET have to look at and what a disciplining employer looks at, where police officers bring whistleblowing or discrimination claims, the veracity of the underlying allegations has more significance than one might think at first blush. The truth or otherwise of the allegation of misconduct is likely to weigh heavily in an employment tribunal’s mind, when considering whether misconduct proceedings are acts of discrimination or detrimental treatment. Having an articulate and well thought out rationale for investigating an officer and bringing misconduct proceedings is crucial in defending these types of ET claims.  

Angus Moon QC and Rad Kohanzad recently successfully defended this sexual orientation discrimination and whistleblowing claim.