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Metropolitan Police v Denby

Napthens - December 5th 2017

Where another person influences a decision-maker in a discriminatory way, does this result in them being a joint decision-maker? According to the EAT in Metropolitan Police v Denby the answer is yes.

The Claimant, Mr Denby, was a male police officer in charge of the Territorial Support Group. A new Deputy Assistant Commissioner (DAC), Maxine De Brunner, was brought in to drive discrimination out of the police service. The DAC also had concerns surrounding the lack of gender diversity, within the group led by Mr Denby.

The first complaint occurred during a surprise visit in 2014, during which the DAC witnessed a male officer walking from the shower across the office in just a towel, in what she described as her pet hate. When this was raised with Mr Denby, he simply informed her that they had to walk from the showers to their lockers. Following this incident he was subsequently placed under investigation and fresh allegations were brought against him. This included, finding beer for sale in the fridge and allowing staff to claim for overtime not actually worked.

The EAT found this response to be heavy handed when compared to similar complaints about a group led by a female officer. Whilst the DAC allowed the female officer to be investigated locally, in this case she influenced the decision of another officer to subject Mr Denby to a criminal investigation. The Tribunal also found that the DAC and Commander Musker had influenced earlier decisions, by preventing certain restrictions of his duties from being lifted.

Further to this a new system was introduced scoring officers on their performance and potential. Mr Denby received a B3 score with positive narrative comments. However, this was reduced to B1, the largest drop of any employee, by Commander Musker. This subsequently prevented him from successfully applying for a promotion, when the earlier comparator was allowed. Mr Denby’s internal appeal was rejected, in what the Tribunal called “a rubber stamping exercise”.

Best practice in dealing with a disciplinary process is to ensure that a clear, consistent and fair process is carried out. Where the process isn’t consistent, this increases the risk of potential discrimination claims. In addition, it is vital to ensure that where possible each step of the process is undertaken by a different, ideally more senior, person. Where the employee appeals, the person should be independent from the earlier process and should not be influenced by anybody else.

If you would like more information on how to carry out a disciplinary process, then please don’t hesitate to contact a member of our team.