Bayode v Chief Constable of Derbyshire
The 1976 Race Relations Act says that it is discriminatory to victimise someone for bringing proceedings under the Act. In Bayode v Chief Constable of Derbyshire (IDS 856), the Employment Appeal Tribunal (EAT) said it was not discriminatory for the police force to protect itself against further claims by asking officers to record incidents involving a colleague in their notebooks.
Mr Bayode first lodged a claim in May 2003 for race discrimination concerning incidents during his time as a probationer. He then transferred to another station in March 2005 after a period of sick leave for depression.
Shortly after he started there, he was told by one of his colleagues that they had been warned to be wary of him and to record any problems in their personal notebooks in case he made another race discrimination claim.
Mr Bayode then lodged a claim in September 2005, on the basis that a number of his colleagues had treated him less favourably by virtue of “recording and reporting matters which were unnecessary and unjustified”. He did not claim that any of them were inaccurate.
In the course of the proceedings he also discovered other reports about him concerning allegedly sexist remarks he had made to a female colleague and a perception that he had dealt inappropriately with a member of the public (from which he was later exonerated).
For his part, Mr Bayode accepted his employer had legitimate concerns about his performance, but insisted that he was treated less favourably because some of the issues being reported or recorded were unnecessary or would not normally have been recorded.
The tribunal said that because his colleagues thought Mr Bayode might make allegations of race discrimination against them, it was fair enough to make sure they had a record of any behaviour that concerned them. The question was whether that reason amounted to less favourable treatment which involved Mr Bayode being disadvantaged in some way.
To help answer that question, the tribunal looked to the decision of the House of Lords in St Helens Metropolitan Borough Council v Derbyshire which had focussed on the concept of detriment, saying that an unjustified sense of grievance would not amount to detriment. The grievance had to be objectively reasonable. “Thus an employee could not legitimately complain about a sense of grievance engendered by an employer's reasonable steps to defend itself in litigation.”
In this case, the tribunal concluded that it could not find “that the mere act of making a written record of issues which concerned [other officers], where no inappropriate action was then taken in respect of those issues was in itself a detriment”.
Mr Bayode appealed on the basis that the tribunal was wrong to have considered the less favourable treatment in itself rather than the effect it actually had on him, particularly given his history of sick leave.
But the EAT disagreed, saying that the tribunal had made clear that the disadvantage or detriment had to be judged from the standpoint of the alleged victim. It did not just look at the words in the officers’ notebooks, as Mr Bayode had alleged, rather than the effect they had had on him.
It concluded that there was plenty of evidence from which the tribunal could conclude that “in the context of this particular case the making and content of the [notebook] entries did not amount to a detriment”. Mr Bayode could not therefore have any justified sense of grievance from those entries having been made.
That was not to say that if the entries had been used in some different way “the use might, depending on the circumstances, have provoked a legitimate and reasonable sense of grievance in Mr Bayode”.