Ms C Muntean v The Chief Constable of West Midlands Police: 1302459/2016
| Judgment Date | 04 December 2017 |
| Subject Matter | Public Interest Disclosure |
| Date | 04 December 2017 |
| Citation | 1302459/2016 |
| Published date | 18 December 2017 |
| Court | Employment Tribunal |
Case Number: 1302459/2016
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EMPLOYMENT TRIBUNALS
Claimant Respondent
Ms C Muntean v
The Chief Constable of West
Midlands Police
Heard at: Birmingham On: 6, 7, 10-14, 17-21 July 2017
Before: Employment Judge Perry Members: Mr P Zealander
Mr PJ Simpson
Appearances
For the Claimant: Ms A Del Priore (counsel)
For the Respondent: Mr A Rathmell (counsel)
JUDGMENT
The unanimous judgment of the tribunal is that:-
1 There was no contravention of part 5 of the Equality Act 2010 and the claimant was not
subjected to discrimination based on the protected characteristic of race in
contravention of s.13 (direct discrimination) and s.27 (victimisation) Equality Act 2010.
Those complaints are dismissed.
2 The Claimant was not subjected to a detriment done on the ground that she made a
protected disclosure (ss.47B & 48 Employment Act 1996 (as amended)). That
complaint is also dismissed.
REASONS
References in square brackets below are unless the context suggests otherwise to the page of the
bundle or if they follow a case reference, a document reference, or a witness’ initials, to the paragraph
number of that authority or document (e.g. [ET1/8.2]). References in round brackets are to the
paragraph of these reasons.
BACKGROUND AND THE ISSUES
1 This is a claim that was presented on 22 September 2016 and includes complaints of
race discrimination (the claimant, describes herself as Romanian), victimisation and
detrimental treatment done on the ground that she made a protected disclosure (a
whistleblowing detriment complaint).
2 Some 17 acts of less favourable treatment and detriment were initially relied upon
spanning the period 1 July 2015 to 22 September 2016 (the latter being the date the
claimant’s claim form was presented [1-33]). Not all are relied upon as acts of
detriment for the whistleblowing detriment claim. The acts of less favourable treatment
and detriment were identified as a result of case management preceding this hearing.
A list of issues was provided at the outset of this this hearing and revised as the claim
progressed. The final version of list of issues is appended hereto showing the claims
that continue to be pursued and those withdrawn.
3 A sole Protected Act was relied upon for the s.27 Equality Act 2010 (EqA) victimisation
complaint; a claim the Claimant presented to the Employment Tribunal in 2013 (and
the internal complaints that led to it) alleging race discrimination in respect of
proceedings brought against her pursuant to Reg. 13 of the Police Regulations 2003
Case Number: 1302459/2016
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[13-14] (the “First ET Claim”). The respondent accepted this was a protected act for the
purposes of s.27 EqA.
4 The parties agreed a memorandum of understanding as to the facts and matters raised
in the Claimant’s First ET Claim and the outcome of it as follows:-
“1. In 2013, the Claimant brought Tribunal proceedings against the
Respondent, alleging race discrimination (direct discrimination, indirect
discrimination and harassment). In summary, the Claimant alleged that
she had been subjected to unlawful discrimination and harassment
during her probationary service, both in terms of treatment of her by her
supervisors, and in terms of the manner in which the Regulation 12 and
Regulation 13 (Police Regulations 2003) processes were managed.
2. The Respondent entered a defence to the Claimant’s claim, denying
that it had discriminated against her or harassed her on grounds of her
race and expressed an intention to defend the entirety of her claim.
3. The parties later compromised (without admission of liability) the
Claimant’s Tribunal claim. The Respondent:
a. Acknowledged the treatment that the Claimant had received in
relation to her probationary period, and the anxiety that this may
have caused her.
b. Indicated that there was no intention on the part of any member
of the Force to cause the Claimant distress in the administration
of the probationary period arrangements.
c. Committed to reviewing Force application of Regulation 12 and
Regulation 13 of the Police Regulations 2003, confirming that
representatives from the Force and the Police Federation would
meet to discuss the policy and to make any appropriate
amendments agreed in accordance with Police Regulations.
d. Ensure that advice was given, where appropriate, to colleagues
involved in the case where specific learning issues had been
identified.
e. Confirmed her as a substantive police officer.”
5 The sole protected disclosure relied upon is a Near Miss incident report that was made
by the claimant on 10 February 2016 (see (73) following). The claimant relies upon s.
43B(1)(b) and (d) Employment Rights Act 1996 (as amended) (ERA); breach of a legal
obligation and health and safety. The respondent conceded during closing submissions
that a protected disclosure was made, (it accepts that information was relayed), but not
that the disclosure is capable of constituting a disclosure for the purposes of Part IVA
ERA. It is accepted that all the alleged perpetrators had knowledge of the Protect Act
and all save for Insp. Churchill of the Protect Disclosure.
6 As to the direct discrimination complaints whilst a hypothetical comparator is argued in
each instance actual comparators are also argued in a number of instances. At the
outset Mr Rathmell raised an issue as to the characteristics of comparators being
omitted.
7 A timing point is raised by the respondent concerning complaints prior to 23 April
2016:-
Case Number: 1302459/2016
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7.1 As to the direct discrimination/victimisation complaints prior to that date they
must constitute conduct extending over a period or the claimant will need to
show it is just and equitable to extend time (s.123 EqA).
7.2 In the case of the whistleblowing detriment complaints, they must constitute
acts extending over a period or the claimant will need to show it was not
reasonably practicable to bring the claim in time and that she did so within a
further reasonable period (s.48 ERA).
THE EVIDENCE
8 The two lever-arch file bundle of documents was agreed. Following additions made to it
by agreement it totalled some 607 pages although the bundle was actually longer than
that might appear given the insertion at several points of pages numbered xx A, B, C
etc.
9 In addition to the list of issues and memorandum of understanding we also had before
us a Chronology, cast list and witness statements from the following witnesses whose
statements were taken as read and were cross examined:-
9.1 the claimant, Police Constable (‘PC’) (Coralia) Simina Muntean [SM], who at
the time of the matters before us worked on Response Team “C” at
Wolverhampton Local Policing Unit (LPU),
9.2 Inspector (Insp.) Steve Grange [SG], PC Muntean’s Police Federation
Representative during a formal Unsatisfactory Performance Procedure (UPP)
that post-dated the matters before us but who had been advising her in that
background before that,
9.3 Mr Peter Harkness [PH], a former PC who was a Police Federation
representative and from 2014 to 2016 was the Federation’s lead health and
safety representative,
9.4 Sergeant (Sgt.) James Proffitt [JP], one of PC Muntean’s three direct
supervisors on Response Team C and who worked at Wolverhampton LPU at
the time of the matters that concern us.
9.5 Sgt. Sukhwinder Sarai [SS] another of PC Muntean’s three direct supervisors at
Wolverhampton LPU.
9.6 PC Laura Tweedie [LT] C’s supervision at Wolverhampton LPU. During some of
the events that concern us she was a Temporary Sergeant (T/Sgt.) on
Response Team C and thus one of PC Muntean’s supervisors.
9.7 Insp. Tracey McElroy-Baker [TMB] at the time of the matters that concern us
was initially was a Sergeant on Response Team C and thus one of PC
Muntean’s supervisors. During the time that concerns us she was also a
Temporary Inspector (T/Insp.) supervising Sgts. Proffitt, Sarai and T/Sgt.
Tweedie at Wolverhampton LPU.
9.8 Acting Sgt. (A/Sgt.) Andrew Hedge, the Tactical Intelligence Team Supervisor
within the Respondent’s Intelligence Department. He is qualified to the rank of
Sgt. but it was unclear to us if that was his substantive role. Notwithstanding
that we refer to him to avoid discourtesy as A/Sgt.
9.9 Insp. Sallie Churchill [SC] the predecessor of Insp. McElroy-Baker as second
level supervisor of Response Team C, Wolverhampton LPU, and
9.10 Nicole Earp [NE], one of the respondent’s Line Manager Advisors and Human
Resources support for Sgt. Proffitt during PC Muntean’s Informal UPP.
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