It is unlawful for an employer to subject a worker to a detriment (disadvantage) because they complained about being discriminated against. In Chief Constable of Merseyside Police v Knox, however, the Employment Appeal Tribunal (EAT) held that there was no basis in evidence for the tribunal to conclude that Mr Knox had been victimised.
Basic facts
Mr Knox, a serving police officer, had lodged multiple grievances relating to sex and disability discrimination in 2017 and 2018. He then made a number of subject access requests (SARs) for information with a view to bringing a tribunal claim. In the first request in August 2017, Mr Knox asked for all emails sent within the force “with a connection to me” between 2002 and 2017 (SAR1).
His request was referred by the Data Access Unit (DAU) to the Anti-Corruption Unit (ACU) which kept an archive of all emails. At the end of October 2017, the ACU said that its software did not have the necessary capability to do the search and asked him to provide names of senders and recipients. An e-mail was then sent on 7 November 2017 to 14 individuals asking them to check their email accounts, despite Mr Knox objecting to this approach. He made three further requests.
In January 2018 he was given access to the emails that had been provided to the DAU by the ACU in November 2017. The Data Access Manager, referred to as Mr D, apologised to Mr Knox for the delay. Mr Knox raised a grievance, which was unsuccessful, about the delay and about the way officers had been approached as a group to search their own e-mail accounts.
After the ACU upgraded its software in May 2018 to comply with new GDPR data protection rules thereby improving its automated email search capabilities, it sent a further batch of emails to Mr Knox in October.
Mr Knox brought claims of victimisation, among other things.
Tribunal decision
A majority of the tribunal (the employment judge dissenting) held that Mr Knox had been victimised by the way in which Mr D had dealt with SAR1. It found that the ACU had the capability in November 2017 to find the further batch of emails it provided finally in October 2018; that the limitations of the ACU’s software prior to the GDPR upgrade did not explain why that second batch of emails had not been disclosed with the first batch; and that Mr D knew this to be the case.
The majority of the panel also concluded that Mr Knox had suffered a detriment as a result of his treatment by Mr D. This shifted the burden onto his employer to show that the conduct he had suffered was not because of the protected acts. As Mr D had not been called as a witness, the employer had not discharged that burden, resulting in findings of victimisation.
EAT decision
Upholding the employer’s appeal, the EAT held that there was no basis in fact for concluding that the ACU could retrieve more emails than it produced prior to the software upgrade. Nor was there any evidence for rejecting the explanation as to why the emails disclosed in October 2018 had not been retrieved sooner.
The majority were also wrong to draw an adverse inference from the failure of the force to call a witness from the ACU (in addition to the DAU), given that the victimisation claims did not criticise their conduct specifically.
The finding that the explanation given by the ACU was not true was therefore perverse. As Mr Knox had conceded that the findings of detrimental treatment all rested on that finding - and the inference that Mr D knew that the ACU could have retrieved the emails disclosed in October at the outset - it followed that the findings of detrimental treatment could not stand.
Nor was there enough evidence to support the conclusion that the burden of proof had passed to the employer.