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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Thames Valley Police v Kellaway [1999] UKEAT 1290_97_2804 (28 April 1999) URL: http://www.bailii.org/uk/cases/UKEAT/1999/1290_97_2804.html Cite as: [2000] IRLR 170, [1999] UKEAT 1290_97_2804

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APPEARANCES

 

For the Appellants	MR A KORN (of Counsel) Messrs Shally Gim & Co Solicitors 94 The Warren Heston Middx TW5 OJN
For the Respondent	MISS L COX QC MR J HORAN (of Counsel) Messrs Russell Jones & Walker Swinton House 324 Grays Inn Road London WC1X 8DH


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal by the Chief Constable of Thames Valley Police from an Industrial Tribunal sitting at Reading which found by a majority, (the Chairman Mr J E Gorst dissenting), that Ms Kellaway ["the applicant"] had been discriminated against and victimised on the grounds of her sex in relation to four of the eight complaints made by her.

Background facts

On 21 July 1986, at the age of 24, the applicant joined the Thames Valley Police Force, and after her initial training she was posted to Reading Police Station as a Police Constable. On 3 December 1992, in what the tribunal referred to as the "Ashford incident", the applicant alleged that a Sergeant had tried to sexually assault her. The applicant went off sick for a month during which time Inspector Balcombe rang the applicant to enquire as to her well-being having been told of the incident by the applicant's superior, Superintendant Hanks. The applicant complained to the Inspector that she considered the actions of Superintendant Hanks to have been a breach of confidence. The complaint was eventually withdrawn on advice from Police Federation Representatives. This incident was not a separate ground of complaint but was used as background evidence in relation to other complaints made.

On 7 August 1995 the applicant presented an Originating Application to the Employment Tribunal which set out her allegations of discrimination and victimisation. The tribunal set out in detail the applicant's eight complaints and the evidence presented by the parties in relation to each complaint, from paragraphs 20 to 101 of the written decision. By a majority, the Chairman dissenting, complaints 1, 5, 6 & 8 were upheld; the other complaints were unanimously rejected. The majority did not expressly deal with complaints 3 and 7. Because of the wide-ranging nature of this appeal it is necessary to refer to each of the eight complaints and to the findings of the tribunal in relation to each complaint expressly dealt with.

The complaints

The first complaint concerned the applicant's treatment at the hands of the Area Board and the HQ Board in 1993. The tribunal outlined the promotion procedure for Reading officers at paragraph 16 of their decision. In summary, candidates first had an interview before an Area Board and on the strength of their assessment the candidate may go forward to an interview before an HQ Board. The applicant contended that Superintendant Hanks, who presided over the Area Board and was a member of the HQ Board, was sexist and that was evidenced in his notes from the Area Board interview in which he made the following observations on her responses: "bullshit", "incompetent", "inflated sense of importance/ego" and "out of touch". It was also alleged that the marks given in that interview were inconsistent. Although she was initially denied an HQ Board interview, on complaining of the result and alleging that she had been treated less favourably compared to male colleagues, she was afforded an interview.

The second part of the complaint concerned the HQ Board's conclusion that the applicant lacked recent operational experience and was accordingly granted a conditional pass. It was alleged that two male PCs, Eatwell and Wilson, had been promoted the year before, when both had a lack of recent operational experience.

It was also argued at the tribunal that the granting of a conditional pass also amounted to victimisation. Accusing Superintendant Hanks of a breach of confidence and raising an equal opportunities issue in relation to the initial denial of an HQ Board interview, were 'protected acts' and the discriminatory treatment meted out to the applicant was as a consequence of those acts.

As part of the conditional pass the applicant had to enter into a "contract" which laid down guidelines for her training to reach the required standard and which subjected her to regular reports on her standard of work.

The second complaint was that the applicant had been pressurised to withdraw from performance of that conditional "contract". It was alleged that Superintendant Hanks and Inspector Murray advised her that it was in the best interests of her career to withdraw from the "contract". Murray gave evidence denying that any pressure was put on the applicant. Assistant Chief Constable Dunn gave evidence that the applicant withdrew from the contract on the basis that it would amount to too much pressure; he denied asking her if she had been "nobbled."

The third complaint was also in two parts. Firstly, that prejudicial reports were unfairly placed on the applicant's file, and secondly, that her requests that they be removed were unfairly refused. The reports in question were set out at paragraph 47 of the tribunal decision. The retention or removal of the reports was in the discretion of Superintendant Hanks. It was contended that in not removing those reports at the applicant's request, the Superintendant was motivated by prejudice against the applicant on the basis of her gender.

The fourth complaint was that the applicant had been denied the opportunity to "act up" as Sergeant, whereas that opportunity had been offered to PC Williams. The applicant worked as an Acting Sergeant on 56 days whereas PC Williams worked 90 days. The tribunal noted that the applicant accepted that although she complained of not being given enough time as an Acting Sergeant she did nothing to avail herself of PC Williams' offer to stand down in order to let her have more opportunities.

The fifth complaint amounted to an allegation that the applicant was denied support from her superiors in her attempts to obtain promotion and that she was subjected to aggressive, rude and discriminatory behaviour. Specific incidents included an allegation that Sergeant Hedley told the applicant that "Women like you shouldn't be in the job." On 11 October 1990 when the applicant attempted to gain access to a charge room she claimed that Sergeant Hedley said to her "Fuck off you stupid woman." Her statement of complaint made at the time revealed that she alleged Sergeant Hedley told her to "Fuck off" and another Police Constable referred to her as a stupid woman. Sergeant Hedley gave evidence that he shouted at the applicant because she had been playing outside the room but denied that he swore. The applicant alleged that at a festival Acting Inspector Thomas grabbed her and pulled her to the ground in front of other officers. Acting Inspector Thomas gave evidence that he had grabbed the applicant, but only to prevent her throwing one of his boots away. The witnesses on behalf of the police gave evidence that the applicant was very moody and unpredictable an that was why some officers did not give her assistance.

The sixth complaint was that between 28 August 1994 and 23 October 1994, when the applicant was 'acting up' as a Sergeant, she was subjected to numerous, unfairly conducted and unfair reports, whereas PC Williams was subject to a different regime of assessment and his reports were mainly positive.

It was alleged that the monthly appraisals were too frequent and contained unfair criticisms. It transpired after the applicant had finished her period of acting up, that Acting Inspector Thomas had been preparing appraisals on her performance from her third or fourth day as Acting Sergeant under him. She had been told that the only appraisal would be made at the end of her period of acting up. The applicant claimed that Acting Inspector Thomas' opinion that she was not ready for promotion was a decision tainted by sexual prejudice against her.

The other element of complaint six was that PC Williams did not receive an interim appraisal and that his final appraisal was more favourable. On this point the tribunal noted that it would have been a better argument had the applicant not received an interim report and PC Williams had, as that would indicate that more attention was paid to his training. As for the less positive reports the tribunal also noted that although the report of 23 September 1994 was not wholly favourable it was "certainly constructive".

The seventh complaint was that when the applicant raised her grievances with Chief Inspector Keep, they were not properly dealt with or taken seriously. The grievances arose out of the applicant's period of 'acting up' and were contained in a memorandum to the Chief Inspector, dated 3 January 1995. Further criticism was made of the Chief Inspector that he gave the applicant an out of date Equal Opportunities Policy, and breached various principles of that policy. Those breaches included the fact that she was not informed of her rights and was not afforded representation, and that her grievances were not passed to the Equal Opportunities department.

The eighth complaint contained further allegations that the applicant had been discriminated against in her treatment by her superiors. It was alleged that Chief Inspector Dizaei had instructed the applicant's Line Manager to recommend that the applicant was not fit for the rank of Sergeant because of an attempt by her to commit suicide. Furthermore, the applicant contended that during a private conversation Superintendant Hanks became angry and remarked that she was taking jobs from his boys and that it had taken him 15 years to achieve the rank of Sergeant. It was also alleged, and denied by the Superintendant, that he said: "Call me old fashioned but I don't think women should be in the job."

Ms SCA Walsh, a former police officer, gave evidence before the tribunal to the effect that the applicant had confided in her that she had lied about the allegations she had made against Superintendant Hanks and had said, "that fat bastard Hanks deserves it." This was denied by the applicant.

The Tribunal's Findings

At paragraphs 102 to 104, the tribunal majority gave their findings.

Complaint 1:

"(a) The reason the applicant was given the marking of "good" rather than "outstanding" by the Area Board was because Superintendant Hanks was prejudiced against her and such a marking constituted failure to secure an HQ Board.

The majority feel that Mr Hanks was very put out by being snubbed by the applicant over what he saw as his offer of assistance via Miss Balcombe…The majority feel that Mr Hanks would take exception to a very much junior person rejecting his offer…The majority feel that Mr Hanks' words, described by Mr Dunn as "intemperate" on the Area Board interview report showed the depth of his irritation and reflected his view of the applicant's lack of worth.

The majority also believe that Mr Hanks' view swayed the panel when it came to finally awarding the marks for Policing Appreciation which was the only below average mark and may have made the difference to her being awarded "Good" rather than "Outstanding".

The majority believe that Messrs Eatwell and Wilson, who passed the HQ Board the previous year, had the same lack of operational experience as the applicant, as they also had been at the Training School for more than two years. The majority believe that to treat the applicant differently in 1993 amounts to sex discrimination."

Complaint 2:

The tribunal concluded that Superintendant Murray had not pressurised the applicant into withdrawing from the contract.

Complaint 4:

The tribunal rejected the applicant's complaint of discrimination. They held that the reason the applicant was made to stand in for Sergeant Thomas rather than Sergeant Rees was to give her an identifiable period of 'acting up'.

Complaint 5:

The majority found as a fact that Sergeant Hedley did say to the applicant "women like you should not be in the job" which indicated that he discriminated against her on the basis of her gender. They went on to find that "there was active discrimination between Messrs Hanks, Hedley, Thomas and Dizaei to marginalise the applicant and prevent her from obtaining promotion." Mr Hedley's failure to give the applicant assistance and support during her period of acting Sergeant was held to be "further evidence of the victimisation to thwart her promotion and amounts to discrimination."

With regard to the incident in October 1990 the majority found that Sergeant Hedley told the applicant to "fuck off" but did not refer to her as a "stupid woman". The majority also considered that the sending to Sergeant Hedley, anonymously, of the applicant's original statement [October 1990], which supported Sergeant Hedley's account of the incident, reflected the applicant's contention that there was a conspiracy against her amongst the police force in Reading.

The majority also criticised the amount of bad language used by officers based in Reading and that the "robust banter" amongst officers could lead to an atmosphere of intimidation and stress which female officers in particular could find difficult to deal with.

They found that Sergeant Hedley did not assist the applicant when she was acting up as a sergeant, but was "waiting for her to fail". They considered that this lack of support was "further evidence of the victimisation to thwart her promotion and amounts to discrimination."

Complaint 6:

The majority found that the applicant was subjected to numerous unfair and unfairly conducted reports and appraisals when she was an Acting Sergeant. The majority found that the applicant was treated less favourably by Acting Inspector Thomas than a direct male comparator, PC Williams. The majority inferred that the difference in treatment was motivated by a desire to discriminate against or victimise the applicant on account of her gender.

Complaint 8:

The majority found that Chief Inspector Dizaei did instruct another Sergeant to write words on her next appraisal to the effect that the applicant was not fit for promotion. They rejected the Chief Inspector's evidence that he did this because he believed that a person who had attempted suicide was not fit, but inferred ["presumably dictated by his belief that"] that it was because the applicant was a woman and, therefore, should not be promoted. They preferred the evidence of Sergeant Debney to that of the Chief Inspector "over events affecting the applicant within Henley Police Station.

The majority rejected the evidence of Ms Walsh that the applicant had admitted lying, and stated that Ms Walsh was motivated in giving such evidence by a desire for publicity.

In conclusion they said:

"The majority view is that the applicant was discriminated against and victimised on account of her sex at various times during the period December 1992 to June 1995."

The tribunal Chairman formed the minority view that the applicant was not the victim of discrimination or victimisation. He concluded that had the applicant been originally granted an unconditional pass by the HQ Board there would have been no complaints made and her real grievance was that she felt her two years of accelerated training at Ashford had not been taken into account by the Board in its consideration of her application. The Chairman formed a far less favourable view of the applicant and of the evidence that she gave. He found that the applicant ascribed all things which were not to her liking, both before and after the HQ Board decision, to unfavourable sex discrimination where there was no evidence of such. Where there was a conflict in the evidence the Chairman accepted the evidence given by the witnesses on behalf of the appellant.

The Chairman asked himself what the true reason was for her not being given an unconditional pass. He considered that she should have compared herself with other male officers who also failed, rather than with PCs Eatwell and Wilson:

"The applicant has failed to persuade me that those who were instrumental in ensuring that she did not get an unconditional pass were in any way motivated by either a conscious or unconscious desire to discriminate against her on account of her sex."

The Chairman went on to dismiss each individual compliant raised by the applicant on the grounds that the facts did not give rise to an inference of discrimination on grounds of sex. Whilst he was prepared to accept that Sergeant Hedley had said that "we could do without women like you in the force" he imagined that he could equally well have said "to a male who was operating double standards "we could equally do without men like you in the Force." On the direct conflict of evidence of what happened at the Pop Festival [the pulling to the ground incident] the Chairman concluded that the applicant was probably not telling the truth. He rejected the majority view that she had been subjected to "numerous unfairly conducted and unfair reports during her period of acting-up". He said that it was hard to accept the statement that the reports were unfair. He did not find it necessary to make a finding as to whether the Chief Inspector had said that someone who had attempted suicide was not fit to be a Sergeant "for even if it were said it was no more than an expression of opinion and not in any sense gender specific." He was prepared to believe what Ms Walsh said in her evidence.

He concluded by saying that he was satisfied

"beyond any doubt that neither the respondent nor anyone under his control or direction either consciously or unconsciously discriminated unfavourably against the applicant or victimised her on account of her sex."

Counsel's Submissions

The appellant police force was ably represented by Mr Korn, for whose lengthy and detailed skeleton argument and submissions we are grateful. His main submission before us was that the tribunal majority failed to direct itself in law properly or at all, which was evidenced by the complete absence of any reference to authority or statute in the decision. In particular there were no clear findings as to what had amounted to 'less favourable treatment' and there was no indication that the majority had been directed on the burden of proof or had taken into account the well known authorities on drawing inferences such as King v Great Britain China Centre [1992] ICR 526 or Zafar v Strathclyde Regional Council [1998] IRLR 36. This failure to set out the relevant legal principles in relation to the applicant's complaints led to the majority making perverse findings of fact unsupported by the evidence and wrong in law. In relation to the claim of victimisation, it was argued that the majority failed to identify a 'protected act' or any unfavourable treatment allegedly suffered 'by reason of that act'.

The methodology of the tribunal was attacked as flawed. It was argued that the written reasons did not make it clear whether the facts set out between paragraphs 20 and 101 was a summary agreed between the whole tribunal or were those found only by the majority. The tribunal majority also failed to make findings based on the facts as set out, including areas where there was a conflict of evidence, such as complaint three, which was further evidence of the tribunal's unclear approach to the matter. In furtherance of this argument our attention was directed to Martins v Marks & Spencer [1998] IRLR 326 in which Mummery LJ stated the following:

"the duty of the tribunal, having heard the evidence and argument is to give reasons for its decision, so that party who has lost knows why he has lost. In practical terms that means that it should state its findings of primary fact and any inferences it draws from those facts as clearly and concisely as possible and it should then apply the relevant statutory provisions, as interpreted by the courts, to those facts in order to arrive at a conclusion. It is not normally necessary to set out in the decision or to discuss in detail the evidence given to the tribunal. The extended reasons in this case are too elaborate both in the detailed recitation and in the discursive treatment of the evidence. The unfortunate result is that, on key issues, clear findings of fact have not been stated and there are self-contradictory conclusions."

Further, based upon authority, he submitted that the decision should set out the means by which the tribunal has arrived at its conclusion. It was not sufficient that a tribunal should base its decision "on a mere intuitive hunch ... that there has been unlawful discrimination"; on the contrary it was necessary for there to be facts which supported the conclusion. In summary, the majority had made a series of findings which, neither individually nor together, could sustain a finding of sex discrimination and there was no indication in the decision or their reasoning that the majority were properly directed by the Chairman to the legal ingredients necessary for a finding of discrimination. Furthermore, there was no material to justify a finding of victimisation.

Mr Korn raised particular concerns relating to the four complaints of discrimination which were upheld by the tribunal majority. He submitted that the majority's findings were perverse in that they were unsupported by the evidence or were contrary to the evidence presented. It was also argued that the tribunal failed to consider whether the treatment of which the applicant complained was by reason of her being a woman or for some other reason. The evidence presented to the tribunal showed that incidents which the majority attributed to sex discrimination, such as the lack of support from fellow officers, was actually due to her personality and not her gender, and evidence presented to the tribunal showed male officers were treated no differently. The fact that the majority failed to consider that position in their reasons reinforced the fact that their findings were perverse. He particularly referred to the word "numerous" used by the majority in relation to unfavourable reports made about her, yet she was only complaining of two such reports. He pointed out a passage from the evidence which suggested that the applicant accepted that her relations with Acting Inspector Thomas were friendly and that he was trying to be helpful. He submitted that there was some indication that the majority equated a difference in treatment with less favourable treatment with sex discrimination. There was no clear finding of fact that the adverse reports were substantively unfair, merely that they were unfavourable, which left open the question whether they were unfairly unfavourable. Equally, the statement by the Chief Inspector that she was not fit for promotion did not of itself lead to a conclusion that there was discrimination, and the finding against the Chief Inspector was unreasoned and unsupported by the necessary findings of fact. In relation to victimisation, the case against the appellants was really only particularised in her counsel's closing submissions.

Laura Cox QC, counsel on behalf of the applicant, presented a commendably succinct and well sustained argument to this Court.

She submitted that the appeal raised a point of some general importance in relation to the duty of a Chairman when writing a decision in which he or she was expressing a dissenting opinion. She said that it was unfair to criticise the way the majority view was expressed in this case. The decision had either been drafted for them or was their best attempt to draft their own view. It was, she submitted, the duty of the Chairman fairly and fully to express the conclusion of the majority in a way which was least susceptible to challenge on appeal. Save in circumstances which do not arise in this case she submitted that it was the duty of the Chairman to produce a reasoned decision which complied with the requirements of Rule 10(3) of the tribunal's Rules. She submitted that the Decision in this case complied with the requirements although its form was susceptible to the sort of detailed, but inappropriate attack, advanced by the appellants. It was possible to say, when reading the decision as a whole, precisely why the complaint succeeded and the process of reasoning behind the majority decision. The decision was given after a 16 day hearing with both parties represented by experienced counsel. There were 3 or 4 ring binders of relevant written material and 21 live witnesses. At the close of the evidence both parties submitted written submissions setting out the correct approach in law in a discrimination case, making it clear that there had to be unfavourable treatment and that such treatment had to be on grounds of sex. Counsels' written submissions did not demonstrate any disagreement on the law; even though no reference was made to the law and the ingredients necessary for a finding of unlawful discrimination, it was highly improbable that the majority failed to have regard to what was common ground between the parties and unlikely that the Chairman did not properly instruct them on the law.

Her principal submission was that the tribunal majority did not misdirect themselves in law and arrived at conclusions which were supported on the facts and were in no way perverse. It was argued that the appellant was seeking to impugn the majority decision by means of an inappropriate and unfairly analytical approach to the extended reasons of the tribunal in order to identify errors of law. In relation to the formulation of a tribunal's written reasons, Ms Cox made the following points which we summarise as follows:

In Meek v City of Birmingham District Council [1987] IRLR 250, it was held that a tribunal decision was not to be "…an elaborate formalistic product of refined legal draftmanship" but rather "…the parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises…"

In UCATT v Brain [1981] ICR 542, Donaldson LJ stated that "…Industrial Tribunals' reasons are not intended to include a comprehensive and detailed analysis of the case either in terms of fact or law…their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought upon any such analysis. This, to my mind, is to misuse the purpose for which reasons are given."

Based on these authorities, Ms Cox argued that the tribunal majority's decision should not be subjected to the forensic examination demanded by the appellant. We were urged instead to look at the written reasons as a whole. In upholding four of the applicant's complaints, the majority made clear findings of fact in relation to the evidence given, it was therefore possible for the appellant to understand why they lost in the tribunal in accordance with the authorities of Martins and Brain.

Without prejudice to her general submission that the majority decision should be approached as whole and not subjected to detailed faultfinding, Ms Cox then went on to deal with the individual criticisms of the majority's findings, as expressed by Mr Korn.

As to Mr Korn's criticisms of the legal framework adopted by the tribunal majority, Ms Cox directed our attention to the tribunal's findings of fact and the majority's conclusions based on those facts. Taking complaints one and two by way of example, it was contended that the tribunal identified the relevant facts with regard to the promotion system within the police forces in Reading and Henley and identified in detail what happened to the applicant under that procedure. They identified correct male comparators to the applicant and rejected the appellant's explanations for the applicant's different treatment. The majority then considered all the circumstances of the case relevant to the drawing of inferences and drew the inference of discrimination. The fact that the majority considered the applicant's complaints in terms of identifying the facts in issue, identifying the relevant comparator, evaluating the appellant's explanation and drawing any adverse inference from the explanation showed that the majority had been correctly appraised of the legal position and a fortiori had correctly applied the legal principles to the facts before them. Accordingly there was no grounds for the appellant's allegation of misdirection in law or of perversity in its findings of fact.

The Decision

As always with a well argued appeal, there is much to be said for the submissions of both parties. It seems to us clear that the decision of the tribunal was conscientiously put together although it lacked a coherent structure and legal directions. It seems clear that the tribunal regarded the case as being one largely of fact, as to which there was disagreement. If this were a case where the two Lay Members were inviting the tribunal to reach an unsustainable decision, the Chairman would have, and we think should have, been prepared to say so in the dissent. The Chairman does not do so, although he expressed, cogently, why he had disagreed on certain facts. In many ways, the fact that the majority accepted some but not all of the applicant's evidence and some but not all of her complaints, shows that they must have carried out a careful analysis of all the evidence, before upholding 4 of the 8 complaints. Further, the fact that this was a 'split' decision is a good indicator of the care which must have been taken by all three members. The fact that the decision was split does not lead to the conclusion that it is somehow especially suspect; rather the contrary. The split in the tribunal is, no doubt, explicable on the basis that some of the evidence appeared credible to two members but which the Chairman, for good reasons of his own, was unpersuaded by. This demonstrates the justification for a full panel trying a discrimination case. It is consistent with Parliament's determination that in these cases a Chairman may not sit on his own, and that a decision in summary, as opposed to extended reason, form is not permissible.

We do not accept the argument that because there was neither mention of the Sex Discrimination Act 1975 nor of the leading sex discrimination authorities, the decision was flawed or the Chairman failed to direct the lay member's minds to the appropriate legal principles. We accept Ms Cox's submissions on this point. What split the members of the tribunal was not the legal principles which the parties were at one about, but rather their appreciation of the credibility of the evidence.

In general terms it can be seen that the majority have found the relevant facts; identified the less favourable treatment and drawn the inference. Contrary to Mr Korn's convincing submissions, we were not persuaded by him that the majority have slipped into the trap of making an intuitive hunch without supporting material. On analysis, having regard to the documents, the notes of evidence and the decision, we are satisfied that it was open to a properly directed tribunal to find unlawful discrimination as alleged. This is not so much a case where the conclusion was manifestly perverse, but rather one which could be, and was, subjected to critical analysis, based upon the form of the Decision itself.

We consider that Mr Korn has subjected the decision to an overly forensic examination. We do not criticise the approach of the tribunal in this matter which, given the length of their decision, was factually complex and investigated in detail. The Chairman was right to reserve the decision to allow the tribunal members, who clearly held differing opinions, to express their views by reference to the arguments and evidence presented before them. Whilst we would not condone a tribunal decision which does not set out the relevant legal position and does not make findings of fact on all the principal submissions made, this does not amount to an automatic ground of appeal. It has to be shown that omitting to set out the legal principles or key submissions made has led to a consequent error of law or incorrect finding of fact. We are unable to intervene in the majority's findings, which although lengthy, set out their grounds for finding discrimination in sufficient detail to allow both parties to understand the reasoning behind their finding of discrimination.

In relation to the appellant's second complaint, we are of the opinion that the tribunal were entitled to treat PCs Eatwell and Wilson as the appropriate comparators in the light of their similar factual circumstances. We do not accept that the tribunal erred in not considering the 10 male officers who were not offered promotion to be the correct comparators. The very nature of 'less favourable treatment' means that an applicant, who is unsuccessful, is entitled to compare themself to those of a different gender who are successful in similar circumstances. Obviously the fact that ten other male colleagues were also refused promotion is a factor which the tribunal may wish to take into account when making its decision. Therefore the tribunal were right to consider the circumstances of the two male officers who were treated differently from the applicant in similar factual circumstances. Without a credible explanation from the appellant to explain the less favourable treatment, the tribunal were also entitled to draw an adverse inference of discrimination.

Clearly the tribunal majority and the Chairman came to quite differing views on the evidence before them, such as the evidence in relation to Mr Hedley's comment that "Women like you [the applicant] shouldn't be in the job." The majority found that the comment indicated his tendency to discriminate against the applicant because she was a woman and reinforced their belief that Mr Hedley tried to marginalise her. The Chairman on the other hand considered that the comment was made in relation to complaints that the applicant operated double standards. A further difference in interpretation of the evidence related to the evidence given by Ms Walsh. Whilst the majority dismissed her evidence as self-seeking, the Chairman considered her evidence supported his conclusion that the applicant's evidence was untruthful. These contradictory findings do not amount to grounds of appeal; they are legitimate differences in interpretations of primary fact presented to the tribunal. It is not for us as an appeal Court to seek to go behind those findings of fact without cogent evidence of perversity or bias, which is not the case here.

We also reject Mr Korn's criticism of the majority's finding of victimisation. At paragraph 36 of the written reasons the majority set out the applicant's position with regard to victimisation. The 'protected act' was the complaint by the applicant that she had been denied an HQ interview because she was a woman. The majority went on to find that Superintendant Hanks was 'very put out' by the applicant's reaction to his offer of assistance via Inspector Balcombe. They also concluded that the applicant was discriminated against in the conduct of both the Area Board and HQ Board interviews. It was therefore clearly open to the tribunal to infer that the discrimination to which the applicant was subjected in the interviews, in particular the hostility which she faced from Superintendant Hanks was as a result of her 'protected acts.' It seems to us that this is a reasonable interpretation of the majority's findings given the comments at paragraphs 30, 36 and 102. Accordingly we do not accept that the majority erred in its finding that the applicant was subjected to victimisation, particularly in relation to her promotion interviews.

For the reasons given in this judgment this appeal is dismissed.