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You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Curley v Police Service of Northern Ireland [2008] NIFET 442_99FET (14 April 2008) URL: http://www.bailii.org/nie/cases/NIFET/2008/442_99FET.html Cite as: [2008] NIFET 442_99FET |
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CASE REFS: 00442/99 FET
4568/99
CLAIMANT: Kevin Curley
RESPONDENTS: 1. Chief Constable of the Police Service of
Northern Ireland
2. Superintendent Middlemiss
The unanimous decision of the Tribunal is that:-
(1) The claimant was not discriminated against on the grounds of his sex in relation to his placement on a reserve list for deployment to Kosovo in or about September/October 1999, pursuant to the Sex Discrimination (Northern Ireland) Order 1976. The said claim is therefore dismissed.
(2) The claimant was discriminated against by the respondents on the ground of religious belief, but was not discriminated by way of victimisation by the respondents, in relation to his placement on the reserve list for deployment to Kosovo in or about September/October 1999, pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998. The said claim of discrimination by way of victimisation is therefore dismissed.
(3) As agreed, the claim of the claimant will be re-listed for a hearing to consider any remedy to which the claimant is entitled on foot of the above decision.
Constitution of Tribunal:
Chairman: Mr N Drennan QC
Members: Mr M Gallagher
Mrs M Heaney
Appearances:
The claimant appeared in person and was not represented.
The respondents were represented by Mr J Dunlop, Barrister-at-Law, instructed by Crown Solicitors' Office.
Reasons
The respondents each subsequently presented to the Tribunal, Notices of Appearance to the claimant's originating claim in which each respondent denied liability in relation to the claims of the claimant.
Pursuant to orders which had been made by the Tribunal, pursuant to its case management powers under the Fair Employment Tribunal Rules of Procedure 2005, the Tribunal had ordered the parties, prior to the hearing of this matter to prepare and exchange witness statements in relation to any witness upon whose evidence they wished to rely. Witness statements, on foot of the said orders, had been prepared and exchanged with the claimant by the representatives of the respondents in relation to those persons who gave oral evidence, as set out above. However, witness statements in relation to other persons had also been prepared and exchanged with the claimant by the respondents' representatives, but whom the respondents' representatives decided not to call to give oral evidence before closing their case, as aforesaid.
Inspector John Adams,
Superintendent Tim Hanley,
Superintendent Roger McCallum, and
Chief Inspector Wesley Wilson;
and then, following the application by the respondents' representatives, the respondents' representatives were then given leave to cross-examine Chief Inspector (as he then was) Wesley Wilson, who duly attended for cross-examination by the respondents' representative, Mr Dunlop.
It was agreed that, in view of the nature of the above applications, which have not been the subject of any other reported decision in this jurisdiction and which it was acknowledged gave rise to difficult issues of law, the Tribunal would incorporate, within the terms of this decision, the nature of the said applications and the rulings made by the Tribunal on foot of the applications, referred to above.
"32(4)
(1) A witness statement is a written statement signed by a person which contains the evidence which that person will be allowed to give orally.
(2) The Court will order a party to serve on the other parties any witness statement of the oral evidence which the party serving the statement intends to rely on in relation to any issues of fact to be decided at the trial.
(3) A Court may give directions as to –
(a) the order in which witness statements are to be served; and
(b) whether or not the witness statements are to be filed.
32.5
(1) – …
(a) a party is served a witness statement; and
(b) he wishes to rely at trial on the evidence of the witness who made the statement,
he must call the witness to give oral evidence unless the Court orders otherwise or he puts the statement in as hearsay evidence (Part 33 contains provisions about hearsay evidence).
(2) Where a witness is called to give oral evidence under Paragraph (1), his witness statement shall stand as his evidence-in-chief unless the Court orders otherwise.
(3) A witness giving oral evidence at trial may with the permission of the Court –
(a) amplify his witness statement; and
(b) give evidence in relation to new matters which have arisen since the witness statement was served on the other parties.
(4) The Court will give permission under Paragraph (3) only if it considers that there is good reason not to confine the evidence of the witness to the contents of his witness statement.
(5) If a party is served a witness statement does not –
(a) call the witness to give the witness to give evidence at trial; or
(b) put the witness statement in as hearsay evidence,
any other party may put the witness statement in as hearsay evidence.
In this jurisdiction, there is no equivalent to Rule 32.4 or 32.5 of the Rules of the Supreme Court (Northern Ireland) 1980 as amended. However, it is apparent from the various textbooks in relation to Employment Tribunal procedure (such as Harvey on Industrial Relations and Employment Law) the Employment Tribunals in Great Britain have, where necessary and appropriate, followed and applied the provisions of the Civil Procedure Rules, including Rule 32, insofar as it relates to the use of witness statements, when exercising its powers under the relevant Rules of Procedure.
In particular, under Rule 9(2)(s) the Tribunal, under its general power to manage proceedings, has power to 'order that a witness statement be prepared and exchanged'. As is normal practice in these Tribunals, since the commencement of the said Rules of Procedure, the Order made by the Tribunal, for the preparation and exchange of witness statements provides, inter alia, for a timetable for such exchange between the parties and also:-
" …
(d) A witness statements must be a complete statement of the evidence that the witness wishes to give to the Tribunal. A witness will not be permitted to add to his statement without the consent of the Tribunal. Consent will only be given where there is good reason for doing so.
(e) Each witness statement will be read aloud to the Tribunal, unless the Tribunal considers that it inappropriate to do so.
(f) Witness statements will not normally be read by the Tribunal prior to the commencement of the hearing, unless the parties are otherwise informed."
Under the Rules of Procedure, it is also provided as follows, insofar as relevant and material:-
Rule 13(2) –
"So far as it appears appropriate to do so, the Chairman or Tribunal shall seek to avoid formality in his or its proceedings and shall not be bound by any statutory, provision or rule of law relating to the admissibility of evidence in proceedings before the Courts."
Rule 13(3) –
"The Chairman or the Tribunal (as the case may be) shall make such enquiries of persons appearing before him or it and of witnesses as he or it considers appropriate and shall otherwise conduct the hearing in such manner as he or it considers most appropriate for the clarification of the issues and generally for the just handling of the proceedings."
It is also provided under Rule 58(1):-
"Subject to the provisions of these Rules and Practice Directions, a Tribunal or Chairman may regulate it or his own procedure."
The Tribunal in exercising its powers under the said Rules of Procedure is required to give effect to the overriding objective to deal with cases justly, as defined in Regulation 3 of the said Regulations, which provides in Regulation 3(2) –
"(2) Dealing with a case justly includes, so far as practicable –
(a) ensuring the parties are on an equal footing;
(b) dealing with the case in ways which are proportionate to the complexity or importance of the issues;
(c) ensuring that it is dealt with expeditiously and fairly; and
(d) saving expense."
The terms of the normal order relating to the use of witness statements in Tribunal proceedings are made in accordance with the general procedural powers set out above, governing the procedure of the Tribunals in Northern Ireland.
In particular, the Tribunal drew attention to Paragraphs 17.26 and 27 where it is stated:-
"17.26
If a party, having duly served a witness statement, decides not to call the witness to give evidence at trial, it is good practice that prompt notice of this decision should be given to all other parties. The party should make plain when he gives this notice whether he proposes to put, or seek to put, the witness statement in as hearsay evidence. If he does not put the witness statement in as hearsay evidence, any other party may put it in as hearsay evidence. This does not preclude an application by the party who originally served the statement for an Order that the witness be called to be cross-examined. Further, this change from the former practice does not mean that the other party can put the evidence in and seek to invite the Court to disbelieve as untrue a substantial part of that evidence. Where a party seeks to rely on a witness statement at trial as hearsay evidence and the other party applies for permission to cross-examine that person, then if the person does not attend it is open to the Court to exclude that evidence. Whilst in judicial review proceedings evidence is usually in writing, the Court retains a power to direct that witnesses should attend for cross-examination on their witness statements and affidavits."
"It is not satisfactory to put a witness statement before the Trial Judge for his pre-reading, where it is not intended to call that person as a witness (and it is not intended to rely on it as hearsay). Although it is desirable for the party to inform the Judge that it may not call all the witnesses before he is asked to read their statements, the mere fact that the Judge has read the statement of a witness who ultimately is not called, does not make the trial unfair – Judges often have to put matters of which they were once aware out of their minds in resolving issues of fact. The Trial Judge has no power requiring the party who served the statement to call the maker to give evidence as a witness. However the Judge may draw an adverse inference against a party in failing to call the witness to deal with certain evidence."
In this matter, it was not until the close of the respondents' case that the claimant and the Tribunal were informed that the respondents did not intend to call the said persons to give oral evidence, albeit they had provided witness statements to the claimant, as required by the Orders of the Tribunal. The said witness statements, which had been prepared and exchanged, in accordance with the terms of the Orders of the Tribunal, were contained in the trial bundles; but had not been read by the Tribunal, as set out in the said case management orders, as they had not been called to give oral evidence. As seen above, it is suggested, in Paragraph 17.26 of Disclosure, that whenever a party decides not to call such a person it is good practice that prompt notice should be given to all other parties. It has to be recognised that, in cases conducted without the use of witness statements, it can and does often occur that a person is called to the Courts/Tribunal to give evidence; but, for various perfectly legitimate and proper reasons, it is decided by the party or the representative not to call such persons to give oral evidence. The difference in a case where witness statements have been ordered is that, in accordance with the modern practice of 'cards on the table'; the other party is aware, in advance, of the content of that person's witness statement – and, if called, will be the basis of his evidence-in-chief, subject to the Tribunal giving leave, in limited circumstances, to allow the witness statement to be amplified. However, the Order relating to the use of witness statements does not, in the Tribunal's view, require the witness, whose statement has been exchanged, to be called by any party to give oral evidence. Normally this will be what will occur; the party preparing and exchanging the witness statement will call the person who gave the statement to give oral evidence on his behalf. In the Tribunal's view, Mr Dunlop could not be required to explain his reasons why it had been decided by the respondents not to call those persons, whose statements had been prepared or exchanged; albeit he did in fact indicate that the decision was taken, following the giving of the evidence of the second-named respondent, and after the respondents' representatives had considered all the evidence which had been given at that time on behalf of the respondents. Notice was then given, he stated, immediately to the Tribunal of the respondents' decision not to call any other evidence.
As was made clear in the case of Jaffray v Society of Lloyds [2002] EWCA 1101, there is no power for a Court (and which must, in the Tribunal's view, include a Tribunal also) to require a party, who served a statement, to call the maker to give evidence as a witness. The Tribunals, like the Courts, conduct their proceedings on the basis of the adversarial system.
It would appear that there is a practice which has been adopted by some Practitioners in Great Britain, when exchanging witness statements, to state in a covering letter that the fact of such exchange is in compliance with the terms of the relevant Orders of the Tribunal, but is not to be taken to mean that any such person whose witness statements have been exchanged will be called by it to give oral evidence. This is clearly a useful and prudent practice and one which the Tribunal would recommend might be adopted in this jurisdiction, so that a person, such as the claimant, who is unrepresented, would not be taken by surprise; however, it is not a requirement and the respondents' representatives at no time, during the course of the hearing, and prior to giving notice as set out above, indicated that such persons would be called to give oral evidence. In any event, as indicated above, the Tribunal made it clear that, although the case of each party had been closed, it would not allow such a technicality to prevent it hearing any application the claimant wished to make in the circumstances and making Orders in relation to these matters, if it considered it relevant and appropriate to do so; and before hearing the final submissions of the parties.
"For many years full trials in this country were conducted by the parties calling oral evidence, sight unseen. In criminal trials, of course, witnesses for the Prosecution had their statement served on the other side. It was only extremely recently, in civil proceedings, that the written statements of parties were served before trial. Accordingly, the principles of the law of evidence to which we have had our attention drawn, both in Cross and Tapper on Evidence 9th Edition (1999), Pages 285 – 286 and in Phipson on Evidence, 15th Edition (2000), Pages 244 and 278, are largely drawn from a trial tradition which precedes the trial tradition with which we are now familiar.
The dilemma in which the Courts now find themselves is how to adapt the principles, which have grown up over the years, of what constitutes a fair trial in an adversarial system of justice to these new procedures. So far as formal rules are concerned, when the rules permitting exchange of witness statements were first introduced in 1986, there was an express rule in the Rules of the Supreme Court, Order 28 Rule 2A(6) to the following effect:-
"Subject to Paragraph (9) that where a party serving a statement under this rule does not call the witness to whose evidence it relates, no other party may put the statement in evidence at the trial".
The rule-makers of the Civil Procedure Rules decided to get rid of this prohibition. The position is now governed by the Civil Procedure Rules, Rule 32.5. After four provisions dealing with witness statements, Rule 32.5(5) reads:-
"If a party who has served a witness statement does not –
(a) call the witness to give evidence at trial; or
(b) put in the witness statement as hearsay evidence,
any other party may put the witness statement in as hearsay evidence."
In other words, it abrogates the old Rule and makes permissive what the old Rule prevented. It is then a matter for the discretion of the Judge whether to permit it. In my judgment, however there is nothing in this new Rule to change the basic rules of the law of evidence which existed before the new rule was introduced by the rule-makers, and which are still in force today."
When witness statements were introduced in Great Britain, the cases of McPhilemy, and also Douglas, make clear there was the express Rule, at that time, in the Rules of the Supreme Court, namely Order 38 Rule 2A(6), as set out above.
Therefore, at that time, pursuant to that Rule, the claimant in this case (if bringing his proceedings in Great Britain) would not have been in a position to make an application to have the said witness statements admitted in evidence, on his own behalf, as hearsay evidence. As set out previously, Rule 32 of the Civil Procedure Rules, abolished that prohibition and now allows such an application to be made in Great Britain.
In this jurisdiction, as stated previously, the Rules of the Supreme Court (Northern Ireland) 1980 have not made any provision in relation to witness statement, as found in Great Britain and in particular as set out under Rule 32 of the Civil Procedure Rules. Thus, in Northern Ireland, there is no equivalent to the original prohibition issued in Great Britain, which was contained in Order 38, Rule 2A(6) of the Rules of the Supreme Court, nor a similar provision to Rule 32.5 of the Civil Procedure Rules, which abolished the earlier prohibition set out in Order 38, Rule 2A(6).
As indicated previously, in this context, it is also necessary to refer to the Rules of Procedure and in particular Rules 13(2)(3) and 59(1), as set out in Paragraph 3.4 of this decision and the ability of a Tribunal to admit hearsay evidence. Indeed, the Tribunals regularly have occasion, pursuant to the said Rules and its discretionary powers, to admit such hearsay evidence; although the weight to which it attaches to such evidence can often be very little, depending on the particular circumstances.
Having indicated to the claimant the opinion of the Tribunal that, pursuant to an application, if it considered it appropriate, it could admit such evidence, on the claimant's behalf as hearsay evidence; the Tribunal also made clear that, if it was to admit such evidence, the weight to which the Tribunal would attach to such evidence would be a matter for the Tribunal and such weight might not be great, in circumstances, in particular, where such evidence had not been the subject of examination/cross-examination in the normal way. In addition, the Tribunal reminded the claimant of the dicta set out in the above extract from Disclosure, but also the case law referred to therein, that if such evidence was admitted by the Tribunal the claimant would not be entitled to invite the Tribunal 'to disbelieve as untrue a substantial part of that evidence'. As was discussed, in the course of submissions to the Tribunal he would not be allowed to 'cherry pick some or all or part thereof of the statements so admitted'
Having taken time to consider his position, in light of the foregoing, the claimant made it clear that he still wished to proceed with his amended application and for the Tribunal to admit the said witness statements, on his behalf, as hearsay evidence.
The Tribunal, having considered the claimant's said application, indicated that, in the circumstances, it was minded to exercise its discretion to allow the witness statements of Superintendent Roger McCallum, Inspector John Adams, Chief Inspector Wesley Wilson and Superintendent Tim Hanley to be admitted in evidence, on behalf of the claimant, as hearsay evidence. However, before finalising its decision, in deciding whether to exercise its discretion, the Tribunal decided that it would require the respondents' representative to indicate whether or not it intended to make an application for leave to have all or any of the witnesses whose statements would be so admitted, attend for cross-examination by him. In making his submissions in relation to the application to the Tribunal, the respondents' representative had expressly reserved his position on this issue. The Tribunal considered, in view of the unusual nature of these issues and the fact that the claimant was unrepresented, that the claimant should be fully aware of what might occur if the Tribunal finally decided to grant his said application.
"33.4
(1) Where a party –
(a) proposes to rely on hearsay evidence; and
(b) does not propose to call the person who made the original statement to give oral evidence;
the Court may, on the application of any other party, permit that party to call the maker of the statement to be cross-examined on the contents of the statement.
… ."
Order 38, Rule 19 of the Rules of the Supreme Court (Northern Ireland) 1980 provides as follows:-
"19
(1) Where a party to civil proceedings adduces hearsay evidence of a statement made by a person but does not call the person who made the statement to give evidence, the Court may, on the application of another party, allow that other party to call and cross-examine the person on the statement as if he had been called by the first mentioned party and as if the hearsay statement were his evidence-in-chief.
(2) Where the Court allows another party to call and cross-examine the person who made the statement, it may give such directions as it thinks fit to secure the attendance of that person as a witness and as to the procedure to be followed."
As can be seen, Order 38, Rule 19 of the Rules of the Supreme Court (Northern Ireland) 1980 is in similar terms to Rule 33.4 of the Civil Procedure Rules, as set out above. (See further Valentine on Civil Proceedings the Supreme Court – Supplement, Paragraph 13 – 113f.)
The Tribunal was therefore satisfied, in light of the foregoing, that it had the power, in its discretion, if it considered it appropriate, to grant such permission to allow the respondents to cross-examine those witnesses, whose witness statements had been admitted on behalf of the claimant as hearsay evidence, if such permission was sought by the respondents' representative – but at all times it was mindful of the warning set out in the course of the judgment in the Douglas decision at Paragraph 20 when Lord Woolf, stated:-
"20 It is significant to note that there are limits to the power of the Court under Part 33.4; it is to allow the maker of the statement to be cross-examined as to its contents. That provision does not enable Mr Tugendhat to cross-examine the witness when she is called as to matters that do not arise out of the statement. Reference to the 'contents' of the statement confines it to matters dealt with in the statement. But a reasonable approach has to be adopted to determine what are the contents of the statement for that purpose. The Trial Judge has a considerable discretion over the extent of the cross-examination. If he considers that the cross-examination is going beyond proper bounds, then his powers to control evidence enables him to limit the evidence in an appropriate manner. The Judge can be relied upon to see that no unreasonable use is made of the powers of cross-examination."
In the Tribunal's view the above warning was equally applicable in this jurisdiction, having regard to the provisions of Order 38, Rule 19, of the Rules of the Supreme Court (Northern Ireland) 1980; but, in any event, the Tribunal would also be entitled to control the extent of any such cross-examination, under its general powers under the Rules of Procedure referred to previously.
The claimant, after again taking time to consider his position, in light of the foregoing, indicated that he wished to proceed with his application. The claimant, at all times, contended that he should be entitled to have the said statements admitted as hearsay evidence on his behalf and be entitled to rely upon them, in the circumstances. The Tribunal considered that, in the circumstances, it was not for the Tribunal to direct the claimant's proofs and to weigh up whether it was an appropriate application for the claimant to make and the advantages and disadvantages of the admission of such evidence in the above circumstances. The Tribunal, in light of the foregoing and, in exercise of its powers of discretion under the Rules of Procedure, referred to previously, and after having regard to the terms of the overriding objective to deal with cases justly, decided, in the exercise of its discretion, to admit the statements of the said Superintendent Roger McCallum, Inspector John Adams, Chief Inspector Wesley Wilson and Superintendent Tim Hanley, on behalf of the claimant, as hearsay evidence. Having done so, it also decided to exercise in its discretion to allow Chief Inspector Wesley Wilson to be called as a witness to be cross-examined by the respondents' representative on the contents of his said witness statement. In exercising its discretion, as aforesaid, the Tribunal was mindful at all times that it had not only given the claimant every opportunity to consider his position both in relation to his application to admit the said statements as hearsay evidence on his own behalf; but also that, in proceeding with that application, he was at all times aware that the respondents would wish to make an application to have Chief Inspector Wesley Wilson cross-examined as to the contents of his statement. In the circumstances, the Tribunal did not consider it would be appropriate, having admitted the said statement as hearsay evidence, to refuse the application of the respondents' representative to cross-examine Chief Inspector Wesley Wilson – though it made clear to the respondents' representative the limited nature of any such cross-examination. It also reminded the claimant of the limited nature of any re-examination, following any such said cross-examination.
(1) In this Order 'discrimination' means –
(a) discrimination on the ground of religious belief …; or
(b) discrimination by way of victimisation;
and 'discrimination' shall be construed accordingly.
(2) A person discriminates against another person on the ground of religious belief … in any circumstances relevant for the purposes of this Order if –
(a) on … [that ground] … he treats that other less favourably than he treats or would treat other persons; or
….
(3) A comparison of the case of persons of different religious belief … under Paragraph (2) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.
(4) A person ('A') discriminates by way of victimisation against other person ('B') in any circumstances relevant for the purpose of this Order if –
(a) he treats B less favourably than he treats or would treat other persons in those circumstances; and
(b) he does so for a reason mentioned in Paragraph (5).
(5) The reasons are that:-
(a) B has –
(i) brought proceedings against A or any other person under this Order; or
(ii) given evidence or information in connection with such proceedings brought by any person or any investigation under this Order; or
(iii) alleged that A or any other person has (whether or not the allegation so stated contravened this Order; or
(iv) otherwise done anything under or by reference to this Order in relation to A or any other person; or
(v) A knows that B intends to do any of those things or suspects that B has done, or intends to do, any of those things.
(6) Paragraph (4) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.
(7) For the purpose of this Order a person commits unlawful discrimination against another if –
(a) he does an act in relation to that other which is unlawful by virtue of any provision of Part III …; or
(b) … ."
…
(b) Where that person is employed by him –
(i) in the terms of employment which he affords him; or
(ii) the way he affords him access to benefits or by refusing or deliberately omitting to afford him access to them; or
(iii) by dismissing him or by subjecting him to any other detriment.
In the case of Shamoon v Chief Constable of the RUC [2003] IRLR 285, the House of Lords held that in order for a disadvantage to quantify as a detriment the Tribunal must find by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work. An unjustified sense of grievance cannot amount to 'detriment'.
Regulation 24, in particular, amended Article 38 of the 1998 Order, in relation to the burden of proof applicable to these proceedings – by the insertion of Article 38A, which states as follows:-
"Article 38A –
Where on the hearing of a complaint under Article 38, the complainant proves the facts from which the Tribunal could [Tribunal's emphasis] apart from this Article, conclude in the absence of an adequate explanation that the respondent –
(a) committed an act of unlawful discrimination … against the complainant, or
(b) is by virtue of Article 35 or 36 to be treated as having committed such an act of discrimination … against the complainant,
the Tribunal shall [Tribunal's emphasis] uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed that act."
There was no dispute between the parties that the provisions of Article 38A (the burden of proof provisions) applied to the claimant's claim of unlawful discrimination on the grounds of religious belief and/or victimisation under the 1998 Order.
The English Court of Appeal, in the case of Igen v Wong [2005] IRLR 258 considered provisions equivalent to Article 38A of the 1998 Order, in a sex discrimination case, and approved, with minor amendment, guidelines set out in the earlier decision of Barton v Investec Henderson Crosthwaite Securities Limited [2003] IRLR 332.
In a number of recent decisions, the Northern Ireland Court of Appeal has approved the decision of Igen v Wong and the said two-stage process.
In the case of Bridget McDonagh & Others v Samuel Tom T/A The Royal Hotel, Dungannon [2007] NICA 3, the Court of Appeal, in referring to the said two-stage process stated:-
" … The first stage required the complainant to proves facts from which the Tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination against the complainant. The second stage (which only came into effect if the claimant had proved those facts) required the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld … ."
The Court of Appeal, in the above decision, also confirmed that the amended Barton guidance, as to the correct approach to be taken to the incidences of the burden of proof, applied to a case of unlawful discrimination pursuant to the 1998 Order, as well as to all other forms of unlawful discrimination, including that of sex discrimination under the 1976 Order.
The Barton guidance, as amended in Igen, provides, as follows:-
"(1) Pursuant to s.63A of the SDA, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by s.41 or s.42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as 'such facts'.
(2) If the claimant does not prove such facts he or she will fail.
(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that 'he or she would not have fitted in'.
(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.
(5) It is important to note the word 'could' in s.63A(2). At this stage the Tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a Tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.
(6) In considering what inferences or conclusions can be drawn from the primary facts, the Tribunal must assume that there is no adequate explanation for those facts.
(7) These inferences can include, in appropriate cases, an inference that it is just and equitable to draw in accordance with s.74(21) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within s.74(2) of the SDA.
(8) Likewise, the Tribunal must decide whether any provision of any relevant Code of Practice is relevant and; if so, take it into account in determining, such facts pursuant to s.56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant Code of Practice.
(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.
(10) It is then for the respondent to prove that he did not commit, or as the case may be is not to be treated as having committed that act.
(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive.
(12) That requires a Tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.
(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, the Tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or Code of Practice."
The decision in Igen v Wong has been the subject of a number of further decisions including Madarassy v Nomura International PLC [2007] IRLR 246, a decision of the Court of Appeal in England and Wales, and Laing v Manchester City Council [2006] IRLR 748, both of which decisions were expressly approved by the Northern Ireland Court of Appeal in the case of Arthur v Northern Ireland Housing Executive and SHL (UK) Limited [2007] NICA 25.
In Madarassy, the Court of Appeal held, inter alia, that:-
"The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which Tribunal 'could conclude' that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination. 'Could conclude' in Section 63A(2) must mean that 'a reasonable Tribunal could properly conclude' from all the evidence before it. This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory 'absence of an adequate explanation' at this stage, the Tribunal needs to consider all the evidence relevant to the discrimination complaint, such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the claimant were of like with like as required by Section 5(3), and available evidence of the reasons for the differential treatment. The correct legal position was made plain by the guidance in Igen v Wong …
Although Section 63A(2) involves a two-stage analysis of the evidence, it does not expressly or impliedly prevent the Tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the claimant's evidence of discrimination. The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the claimant; or that the comparators chosen by the claimant or the situations with which comparisons are made are not truly like the claimant or the situation of the claimant; or that, even if there has been less favourable treatment of the claimant, it was not on the ground of her sex or pregnancy. Such evidence from the respondent could, if accepted by the Tribunal, be relevant as showing that, contrary to the claimant's allegations of discrimination, there is nothing in the evidence from which the Tribunal could properly infer a prima facie case of discrimination on the prescribed ground. The approach of Elias J in Laing v Manchester City Council would be approved … ."
In Laing v Manchester City Council [2006] IRLR 748, which was expressly approved by Campbell LJ in the Arthur case, Elias J said in relation to the two-stage process:-
"71 There seems to be much confusion created by the decision in Igen [2005] ICR 931. What must be borne in mind by a Tribunal faced with a race claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination. The shifting of the burden of proof simply recognises that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the Tribunal on the balance of probabilities that certain treatment had been by reason of race.
…..
73 No doubt in most cases if would be sensible for a Tribunal to formally analyse a case by reference to the two-stages. But it is not obligatory on them formally to go through each step in each case.
…..
75 The focus of the Tribunal's analysis must at all times be the question whether or not they can properly and fairly infer race discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a Tribunal to say, in effect, 'there is a nice question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race'."
(See further Brown v London Borough of Croyden [2007] IRLR 259.)
In the case of Network Rail Infrastructure Limited v Griffiths-Henry [2006] IRLR 865, the Employment Appeal Tribunal held that:-
"A Tribunal at the second stage is simply concerned with the reason why the employer acted as he did. The burden imposed on the employer will depend on the strength of the prima facie case ….
It would be inappropriate to find discrimination simply because an explanation given by the employer for the difference in treatment is not one which the Tribunal considers objectively to be justified or reasonable. Unfairness is not itself sufficient to establish discrimination."
"3(1) A person discriminates against a woman in any circumstances relevant within the purpose of any provision of this Order if –
(a) on the ground of her sex he treats her less favourably than he treats or would treat a man, or
…
4(1) Under Article 3 and the provisions of Part III … relating to sex discrimination against women, are to be read as applying equally to the treatment of the men, and for that purpose shall have effect with such modifications as are requisite.
Part III
8(i) …
(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland, to discriminate against her –
(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or
(b) by dismissing her, or subjecting her to any other detriment.
Under the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001, which applied to this case by virtue of the transitional provisions contained in Regulation 1 of the said Regulations, Article 63 of the 1976 Order was amended by the insertion of Article 63A. Article 63A is in similar terms to Article 38A of the 1998 Order, as referred to above, and which, is as seen in the authorities referred to above is to be applied in the same way as Article 38A in the 1998 Order including, in particular, the approach as set out in Igen v Wong [2005] 3AER812 and the other interpretative guidance set out the case law referred to above.
However, he also stated:-
"8 No doubt there are cases where it is convenient and helpful to adopt this two-step approach to what is essentially a single question:–
"did the claimant, on the proscribed ground, received less favourable treatment than others?.
But, especially, where the identity of the relevant comparator is a matter for dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined.
…
11. This analysis seems to me to point to the conclusion that Employment Tribunals might sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others."
As the House of Lords made clear in the decision of Chief Constable of West Yorkshire v Khan [2001] IRLR 830, victimisation occurs when, in any circumstances relevant for the purposes of any provision of the Act, a person is treated less favourably than others because he has done one of the protected acts. The burden of proof provisions, to which reference has been made above, are also therefore applicable to such a claim. Further, in order to make the necessary comparison, it is necessary to compare the treatment afforded to the complainant who has done a protected act and the treatment which was or would be afforded to other employees who have not done the protected act. In the absence of an actual comparator, the Tribunal must also consider the position of a hypothetical comparator. In this matter the claimant has relied on actual comparators.
Lord Nicholls said in the Khan case, the situation should be looked at subjectively and the questions asked – "why did the alleged discriminator act as he did – what consciously or unconsciously was his reason"; or, as Lord Scott said, "the real reason, the core reason, the motive for the treatment complained of". In other words, whether a claimant has been victimised 'by reason' he has done a protected act is not to be determined by application of a 'but for' test. Whether a particular act can be said to amount to victimisation must be judged primarily from the point of view of the alleged victim, whether or not they suffered any 'detriment' rather from the point of view of the alleged discriminator (St Helen's Metropolitan Borough Council v Derbyshire [2007] IRLR 540 HL). Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR 572 HL made clear that conscious motivation on the part of the discriminator is not a necessary ingredient of unlawful victimisation. Lord Nicholls also confirmed in the Nagarajan case that discrimination could be made out if the prohibited ground had a 'significant influence' on the outcome. In Igen v Wong that wording was interpreted as meaning an 'influence more than trivial'. In the decision of Villalba v Merrill Lynch & Co [2006] IRLR 437, Elias J held that, if in relation to any particular decision a discriminatory influence was not a material influence or factor, then it was trivial and therefore according to Igen v Wong, insufficient to breach the principle of equal treatment.
In 'Discrimination and Employment' by Tucker and George, Paragraph D8.002, it is made clear that it is well established law that "if they had actually done or actually intended to do the protected act, that the alleged discriminator had actual knowledge of that, alternatively that he suspected them of having done or intending to do the protected act. "In Scott v London Borough of Hillingdon [2001] EWCA Civ 2005, (see Paragraphs 9, 19 and particularly 21) – Keane LJ held that knowledge should be established as a matter of primary fact.
(19) I find these arguments unpersuasive. It is quite clear that, in a case of this kind, knowledge on the part of the alleged discriminator of the protected act is a precondition to a finding of victimisation. That is inherent in the statutory wording and it was spelt out by Lord Steyn in Nagarajan v London Regional Transport [1999] IRLR 572, in a passage subsequently endorsed in Chief Constable of West Yorkshire v Khan [2001] UKHL 48 at Paragraph 56. Lord Steyn said of Section 2(1) at Page 579 that Section 2:-
"Contemplates that the discriminator had knowledge of the protected act and that such knowledge caused or influenced the discriminator to treat the victimised person less favourably than he would treat other persons. But … it does not require the Tribunal to distinguish between conscious and subconscious motivation."
See also the decision of Mr Commissioner Howell QC, in the case of Chief Constable of Cumbria v McGlennon [2002] ICR 1156, EAT, particularly at Paragraphs 56 – 58, to which reference shall be made later in this decision.
On or about 6 August 1999 an internal Force Message/Memorandum/ Advertisement was issued by the first-named respondent seeking applications from various ranks in the first-named respondent for deployment to Kosovo as part of an UN Force for a fixed period, which was due to commence in or about mid-September 1999. The said document stated, inter alia, as follows:-
"The RUC contingent will consist of:-
One Superintendent (Contingent Commander).
Two Inspectors; eight Sergeants; 49 Constables (Regular)
With two Sergeants and four Constables selected to act as reserves."
It is correct to note that in inviting the first-named respondent to take part in the said UN Force, the Home Office suggested that if 60 RUC were to be deployed the contingent should be broken down as set out above – giving a total of 66 officers to be trained and equipped in connection therewith. The idea of having a number of reserves was to allow for replacement officers, if any officer, for whatever reason, failed to be able to fulfil the said 12 month deployment. Although the said Force Message had stated that the contingent would consist of the above members, the Tribunal is satisfied that this was the aim, based on the initial suggestion by the Home Office, who were co-ordinating with the UN in relation to the formation of the contingent; and did not mean, in light of the circumstances at the relevant time, there could not be any alternation to the final breakdown of the contingent from what had been originally envisaged, subject to the ultimate agreement of the UN, and/or the Government and/or the Chief Constable of the first-named respondent, as appropriate.
The Force Message went on to state:-
"Applications are now invited from Superintendents, Inspectors, Sergeants and Constables in the above posts based in Kosovo.
The selected officers will be seconded for a twelve month period which will probably commence in mid-September 1999. The selected officers will undergo a thorough medical examination and a one-week training course prior to deployment."
The document clearly envisaged that with regard to the medical criteria that this would involve the said medical examination, which the Tribunal is satisfied, by its nature, would require to be carried out by appropriate medical personnel, and certainly not by administrative/non-medically trained personnel.
The eligibility criteria set out in the said document included the following:-
"Applicants must have:-
(1) Minimum of five years regular police service.
(2) Be in excellent health with a good sickness record.
(3) Have a good practical experience in police work.
…
(8) Have a good disciplinary record.
…
(11) Be of a rank requested by the UN.
…
The document concluded that officers 'will undergo a selection process which is according to a balance of skills and medical suitability. Thereafter, given the large number of initial enquiries, it is possible that random selection may be the only option once suitably qualified volunteers have been identified."
Mr Strain was informed, as set out in a file note of his conversation with Mr Rolf, dated 18 August 1999:-
"Home Office use a simple paper sift method comprising of the following:-
UN Criteria
Maximum mark of 10 points
Police experience
Maximum mark of 10 points
Medical
Maximum mark of five points
Acceptable sickness absence according to the Home Office is 12 days per year with 36 days in the last three years. Sickness absence in relation to injuries will be looked at sympathically.
Illness relating to stress, asthma, heart condition, blood pressure will automatically eliminate an officer from the process. The reason for this is because of the UN's strict process whereby they will send officers home if they realise that they suffer from/have suffered from any of the above."
However, it was clear from the evidence given to the Tribunal by Inspector McKeown and/or Mr Strain that, despite the knowledge of what method was used by the Home Office when carrying out a paper sift for officers for UN service, for whom it was responsible for selecting, Mr Strain and Inspector McKeown did not follow the practice of the Home Office in relation to the paper sift – but rather adapted it for use in connection with the paper sift to be carried out by them for the initial short listing of the candidates. In this context, the request from HM Government to the first-named respondent to send a contingent of police officers from the RUC was unprecedented and reflected, in particular, the experience of the RUC in Northern Ireland (unlike the police forces in Great Britain) as an 'armed' police force. To select such a contingent for UN service was therefore a new experience for the first-named respondent and the Tribunal could accept that there were no laid down procedures or practices that had been previously established by the first-named respondent to enable it to carry out such an exercise. It was also not required, in the Tribunal's view, to follow the precise method adopted by the Home Office, as set out in the file note. However, as set out below, the Tribunal was concerned that, by adopting the system that they decided to use for this particular paper sift exercise, sufficient care was not taken to ensure the process had the necessary clarity and transparency and they did not ensure the necessary, appropriate and relevant records were kept. Indeed, as shall be apparent elsewhere in this decision this lack of clarity/transparency and/or absence of proper record-keeping was a feature of this whole selection process.
The proforma score sheets, filled in by Mr Strain and/or Inspector McKeown, indicated some form of marking system; but again what it was, was not apparent to the Tribunal, and nor could it be properly explained by Mr Strain and/or Inspector McKeown as seen above.
At the conclusion of the paper sift the claimant, Constable R and B satisfied the service criteria (maximum five years regular service). The proforma score sheet in relation to Constable R showed he obtained a total of 18 marks, made up of:-
Sickness record 3
Recommendation of Line Management 10
Specialist skills 5
The proforma score sheet in relation to Constable B showed he obtained a total of 16 marks made up of:-
Sickness record 1
Recommendation of Line Management 10
Specialist skills 5
The proforma score sheet in relation to the claimant showed he obtained a total of 16 marks made up of:-
Sickness record 0
Recommendation of Line Management 10
Specialist skills 6
The Tribunal was also of the opinion that this medical issue was not only determined by Doctor Crowther, having carried out the said medical examinations, as provided for on the said medical form; but it was a totally separate exercise/process from the process adopted in order to determine who should be selected from the said reserve list. It is apparent that the opinion given by the doctor to in relation to the claimant was taken on 7 October 1999, which was prior to the date when the decision was taken in relation to who should be on the reserve list; and the Tribunal has no reason to believe the situation was not similar in relation to Constables R and B.
In relation to the above matters relating to this medical issue, it is also of relevance to note that, following an application by the claimant, during the hearing, the Tribunal ordered discovery of certain paragraphs contained on Pages 1 and 2 of the UN medical form, which had been completed by Constables R and B. These paragraphs would have been completed by them as part of the questionnaire. In so ordering the discovery of these documents, without notice to Constables R and B, the Tribunal had regard to the issues of relevance and necessity but also the right to privacy under the Human Rights Act 1998 of the said constables and, in its ruling in connection with the Orders for Discovery, restricted such discovery to the said paragraphs. Indeed, the claimant did not seek discovery of any other parts of the said forms and, in particular, the detailed examination carried out by Doctor Crowther and his opinion on their health and fitness.
The discovered paragraphs related, in particular, to the following questions:-
"1. Have you suffered from any of the following diseases or disorders? –
any nervous or mental disorder? - Yes/No;
2. have you ever consulted a neurologist, a psychiatrist or a psychoanalyst? If so, please give his name and address/for what reason?/date of the consultation?."
The answers given by Constables R and B to the said paragraphs were all in the negative and were therefore, in the circumstances, of no assistance, in the view of the Tribunal, to the claimant's claim in relation to his selection on the reserve list. The claimant contended that Constables R and B should have been excluded from selection for the contingent on medical grounds, having regard to the UN criteria referred to in the file note of Mr Strain dated 18 August 1999, and, as seen previously, should not have been considered at the paper sift stage or indeed any stage of this selection process. Prior to the hearing he had obtained, on discovery, a computer print-out which indicated that Constable R had previously suffered from stress in or about 1995 and 1996 for which he had required to be absent from work. Similarly, Constable B's computer print-out referred to a period of stress in 1995 for which he also had a period off work. Doctor Crowther would have had, in the Tribunal's opinion, access to these records. The Tribunal had the opportunity to examine the full UN medical form filled in by Doctor Crowther in relation to the claimant; and it was apparent it was filled in after a detailed examination by him. The Tribunal has no reason to believe that Doctor Crowther did not carry out a similar detailed examination for all candidates, including Constables R and B. Indeed, given the responsibility placed on Doctor Crowther to give his considered opinion whether a candidate was fit, on medical grounds, to be included in the contingent, the Tribunal is satisfied that, regardless of the answers given by Constables R and/or B in the questionnaire, the doctor had concluded on the basis of his own examination and access to any relevant records (including the references to stress) there were not any medical issues which required him to conclude that Constables R and/or B, were not fit, as required, for the said posting to Kosovo and confirmed this on their UN medical form. There was no evidence to suggest that Superintendent Middlemiss had any influence or indeed any input in relation to the medical opinion given by Doctor Crowther. The Tribunal was satisfied that Doctor Crowther passed the claimant and Constables R and B medically fit for the post; and, having done so, the second-named respondent accepted his opinion and proceeded to make his selection for the reserve list on different criteria from such medical issues determined by Doctor Crowther.
The major focus of the claimant's said claim of victimisation was that Chief Superintendent Wesley Lamont, who was the third-named respondent in the claim previously brought by the claimant, namely Case Reference No: 56/98 FET, the 'protected act', had as Head of Personnel (B Department), with the first-named respondent, at the time of this selection, in some way influenced, and/or involved himself in the decision-making process relating to the selection of the reserve list by Superintendent Middlemiss. It has to be noted at this point that, as set out later in this decision, it was to 'B' Department that Superintendent Middlemiss had made certain further enquiries concerning complaints/allegations by the public against the claimant – before he made the selection for the reserve list. It was apparent to the Tribunal from the nature of the cross-examination by the claimant of Mr Lamont that the personal relationship between them was not good. However, firstly, it emerged, during the course of this hearing, that in fact at the relevant time Mr Lamont was not the Head of Personnel (B Department) at the time of the selection process. As appeared from his personnel posting record, he only took up this appointment on or about 6 December 1999, subsequent to the selection for the reserve list.
Secondly, both Chief Superintendent Lamont and the second-named respondent, Superintendent Middlemiss, categorically denied that Chief Superintendent Lamont had played any role, either directly or indirectly, in the selection of the said reserve list or indeed any part of this selection process. The second-named respondent expressly denied any knowledge of the protected act. Indeed, there was no evidence before the Tribunal that established, to the satisfaction of the Tribunal, the second-named respondent had any such knowledge. Such knowledge, as set out in Paragraph 4.9 of this decision, is a necessary ingredient for a claim of discrimination by way of victimisation. There is no doubt that Superintendent Middlemiss was a senior officer with a senior role with the first-named respondent, prior to his deployment, as the Deputy Regional Head of CID for the Belfast Region. He had also filled senior roles prior to that. In the course of those roles, the Tribunal could readily accept that, in connection with his duties, he could have come into contact, for example, at meetings with Chief Superintendent Lamont as a colleague; but also with the other senior officers who gave oral evidence in this matter and also with those senior officers whose statements were admitted as hearsay evidence on behalf of the claimant, in the circumstances previously described. However, in the judgment of the Tribunal, there was no evidence from those witnesses to show, the second-named respondent had obtained the required knowledge of the protected act. It might be argued that, in the course of conversation amongst such senior officers at meetings, for example, the topic of the protected act would have been raised with and/or in the hearing of the second-named respondent. This would be to speculate; and in the Tribunal's opinion it would have been wrong, in the absence of any other relevant evidence, to so speculate. The Tribunal was confirmed in this view by the judgment of Mr Commissioner Howell QC, as he then was, when he stated at Paragraph 58 of his judgment in the case of Chief Constable of Cumbria [2002] ICR 115 – where he found the Tribunal was wrong to have found knowledge, for the purposes of a victimisation claim:-
" … their conclusion rejecting the evidence on behalf of the Chief Constable on this issue is expressed in the entirely general, and we have to say speculative terms, that 'they must have known' without identifying which officers they were finding as a fact to have such knowledge, and from where. In our judgment the conclusion on this issue thus erred on depending too much on generally expressed suspicion, and too little on clear findings of proved fact on who it was who knew what, and how the Tribunal were satisfied any such knowledge had fed into the decision made on 12 April 1999, so as to have been the cause of it for the purposes of amounting to discrimination by way of victimisation under Section 4 of the 1975 Act … ."
In relation to his claim of victimisation, the claimant contended his named comparators should not have been selected before him, as each of them obtained lower paper sift scores than him. The Tribunal was satisfied the second-named respondent, in selecting the reserve list, did not rely on the paper sift scores in making his selection. Indeed, it was apparent from the list of persons who were selected to be deployed and those who were selected for the reserve list that there were some on the reserve list with higher and lower scores than the claimant and similarly on the deployed list. In view of the Tribunal's conclusion, in relation to the issue of knowledge, as set out above, it was not necessary for the Tribunal, in the circumstances, to consider in any further detail the above paper sift scores.
" …
The following morning, Thursday 14 October 1999, I spoke with four officers at Magilligan. One of those officers was Constable Curley. I told him they had been selected as reserves for the Kosovo deployment adding that:-
(1) 60 (sixty) officers was the required number from the United Nations although the Chief Constable was prepared to let all 68 police to deploy, the United Nations only wish for 60 at this time. Reserves would no doubt be deployed, but not initially.
(2) Explained that there was no stigma attached to this decision it was a necessary requirement as all the course members had been aware from day one.
(3) I explained to them that they should all remain and complete the course to qualify.
(4) [Tribunal's emphasis] I explained to them I considered a number of factors before coming to my decision; for example application scores, sick records (given the conditions we were going to work in), performance on the course as described by other supervisors, number of complaints against officers and outstanding court cases.
(5) I explained they would be deployed to fill any shortfall and the United Nations may well ask for additional officers to be deployed.
(6) That I had no doubt that they would be deployed before the year's duty ended and if not, they would most certainly be on next deployment.
(7) I thanked them all for their individual efforts.
… ."
In referring, in his statement to a discussion he had with the claimant in the canteen at Garnerville on the 15th October 1999, when the claimant had again challenged the decision to place him on the reserve list, Superintendent Middlemiss in his statement stated:-
" … during the discussion I again explained to Constable Curley that applicants' course applications, sick records, and conduct in the course had been examined … ."
This witness statement was relied upon, by Superintendent Middlemiss, as part of his evidence-in-chief to the Tribunal.
The handwritten journal written by Superintendent Middlemiss referred to his meeting with the claimant and others selected for the reserve list, on 14 October 1999, and from which the witness statement, referred to above, was clearly prepared stated:-
"I'd considered a number of factors before coming to my decision, mentioned in general terms application scores, sick record, performance on course was discussed with staff inspectors, complaints, etc."
Although there were some small differences between what was stated in the journal and the witness statement, both referred, in particular, to performance and complaints issues as criteria for the selection of the reserve list.
The Tribunal is satisfied that all the candidates who had passed the paper sift were made aware, at all material times, of the importance and relevance of a candidate's court commitments in the period following deployment because, in particular, of cost implications of bringing an officer back from Kosovo, which would not be paid for by the UN Authorities. As a consequence, each officer had been required to fill in a court commitments proforma.
"How many days sickness have you taken in the last three years …?"
Insofar as he based his decision on same, the Tribunal accepts he took the information in answer to the above question given to him at face value and did not look behind it. Indeed, this is consistent with his general ad hoc approach to this whole exercise.
Similar information had been used in relation to the scoring of sick absence for the purpose of the paper sift.
In the event, the claimant had put on his application form two days sick absence. The Tribunal have come to the conclusion, as stated by Superintendent Middlemiss, this period of sick absence played no part in the decision to select him for the reserve list.
The Tribunal could understand Superintendent Middlemiss' concern about the number of court dates set out on the proforma by the claimant. However; there was also some strength to the claimant's assertion at the time of his meeting with Superintendent Middlemiss at Magilligan on 14 October 1999, when he was informed of his selection for the reserve list and also when he further challenged the decision at a meeting with the second-named respondent on 15 October 1999 at Garnerville, that he had agreed many of the cases could resolve as pleas of 'guilty' and this could occur whether he was a witness or the investigating officer; and he would not therefore be required to attend court and to have to return from Kosovo, with all the costs and inconvenience involved. The Tribunal accepted Superintendent Middlemiss' concern that these serious criminal cases, of the above nature, were often strongly contested and/or pleas of 'guilty' did not arise until at or immediately before the said court date. However, the Tribunal was again, in the absence of relevant records, unclear how this criteria was judged/assessed against the other criteria and, in particular, in what circumstances would court commitments outweigh other criteria and, in what circumstances was Superintendent Middlemiss prepared to allow a person with court commitments to go on the initial deployment. In the case of his named comparators, Constable B's proforma gave a 'nil return'. The Tribunal accepts this information was taken at face value at the time and therefore the claimant's court commitments would not have compared favourably with Constable B. Subsequent details provided on discovery by the respondents suggested Constable B may not have provided accurate information on his said form; but taking what was on the form at face value the Tribunal did not consider them further. Constable R's proforma had been lost/mislaid, which is clearly unfortunate. However, the Tribunal was not prepared to take the view, in the absence of any other evidence, that such loss was in any way deliberate. The claimant contended Constable R had more commitments than he had, based on his knowledge of service with Constable R. Police records suggested Constable R had nine court commitments. Assuming these would have all been on the proforma, and taken at face value, as aforesaid, there was some difference in treatment. But there was no details of each said court commitment. The claimant maintained Constable R had a further four court commitments, which related to events which he had noted on his own form but were not included in the police records of Constable R. Once again in the absence of relevant records kept of how the selection was made and each criteria judged, the Tribunal whilst noting there was some difference in numbers between the claimant's and Constable R's court commitments, did not know how Superintendent Middlemiss exercised his judgment in deciding how to distinguish between the various court commitments and when such a commitment was likely and/or be more likely to require an officer to be present in court in Northern Ireland.
It was not until this hearing, during the course of his cross-examination, when he was asking what was the comment and what did it relate to (so that he could respond to questions) that it was put to him that the comment arose from what had happened during a conflict resolution course – he was considered to be overenthusiastic in relation to the use of handcuffs. It was clear from his reaction in the witness box to this suggestion, that the claimant did not accept that he had ever performed on the training course in such a way as to provoke such an adverse reaction. Indeed, not having ever been informed of this comment previously, some eight years later, it was not surprising that he was not in the position to categorically deny that he had behaved in this manner. In addition, in seeking to challenge that he had acted, as alleged, he challenged how a trainer could be sure who had performed in this way, when the trainers were not known to the claimant and the candidates were not wearing identification badges – which Superintendent Middlemiss did not dispute. Superintendent Middlemiss was extremely vague about the comment. He did not remember who said it; how he came to be told; but believed it was by one of the training inspectors, who had heard it from one of the trainers. None of the trainers were called to give evidence. He concluded, during the course of his evidence, that it was probably said to him by Inspector Douglas. Inspector Douglas also did not give evidence. Given the importance of this alleged adverse comment, to the selection of the claimant, as replied upon by the respondents, the Tribunal would have expected evidence would have been given by Inspector Douglas and/or the trainer who said it and/or who saw the incident upon which the alleged comment is based. In the case of Lynch v Ministry of Defence [1983] NI 216, Hutton J, as he then was, relied on the dicta in the case of O'Donnell v Reichard [1975] VR 916 at Page 929:-
" … Where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person's evidence would be favourable to him, then although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as witness, nevertheless it is open to the jury to infer that that person's evidence would not have helped that party's case; if the jury draw that inference, then they may properly take it into account against the party in question for the purposes namely (a) in deciding whether to accept any particular evidence, which has in fact been given either for or against that person, and which relates to a matter with respect to which the person not called as a witness could have spoken; and (b) in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given, again in relation to matters with respect to which the person not called as a witness could spoken."
No reason was given for the failure to call any such witness. The absence of any record of the alleged comment compounded the above failure. The Tribunal came to the conclusion, in light of the foregoing, that evidence from the trainers and/or Inspector Douglas would not have supported Superintendent Middlemiss' evidence to the Tribunal.
In his later witness statement, which he also relied upon as part of his evidence-in-chief, the second-named respondent made reference to specific details of complaints by the public against the claimant, which related to complaints of assault and incivility. At the time of the selection, however, he did not know or enquire, on his own admission, about the details of same. In any event, it was also accepted they were details of allegations not complaints. In the circumstances, the Tribunal did not consider these details, obtained subsequently, were of relevance or assistance in relation to the determination of this complaint, since they were not known of or relied upon by Superintendent Middlemiss at the time. However, it was apparent that no such enquiries were made of the named comparators. The comparators could also have had allegations/complaints by the public, regardless of how they had performed at training. Superintendent Middlemiss maintained that, as no adverse comments were made about the named comparators, unlike the claimant, he did not require to make any such enquiries.
In the circumstances, the Tribunal, in the absence of any relevant records or details of the alleged adverse comment and the failure to give such details until the hearing, as set out above, or to call any evidence by those who were alleged to have made the alleged comment or to have seen the claimant perform in the manner described (see Lynch v MOD above), the Tribunal concluded that it was not satisfied that any such adverse comment was ever made about the claimant. In the absence of any such comment, there was therefore no basis, in the Tribunal's view, for making the said enquiries about the claimant – which enquiries were made of no one else.
As set out, in relation to the claimant's claim of sex discrimination, those bare facts were not sufficient to shift the burden of proof. In consideration of this claim of unlawful discrimination on the grounds of religious belief and whether the less favourable treatment relied upon could be on the grounds of religious belief, the Tribunal was, at all times, aware that of the eight originally selected for the reserve list – four were Protestant, three were Catholic (ie including the claimant) and one was 'other'. However, this was in the context of a selection from 57 Protestants, 7 Catholics and 7 'others', in circumstances where originally 83 Protestants, 12 Catholics and 11 'others' had applied for the said deployment. The Tribunal also recalled that Superintendent Middlemiss had Catholic members in his family and had not previous known the claimant. Such facts were not conclusive or determinative in persuading the Tribunal that the burden had not shifted, when applying the first stage of the Igen test; and, in particular, in the light of the matters set out in the following sub-paragraphs of this decision. Constable R and B were Protestant and the claimant was Catholic.
In these circumstances, the Tribunal concluded that the claimant had established facts, as set out above, from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondents had committed an act of discrimination against the claimant on the grounds of religious belief.
To discharge the burden it was necessary for the respondents to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the ground of religion since no discrimination is compatible with the burden of proof directive. Since the facts necessary to prove an explanation would normally be in the possession of the respondents, a Tribunal normally expects cogent evidence to discharge the burden of proof (Igen).
Significantly, neither Constables R or B or indeed any other candidate, apart from the claimant, had enquiries made of him at Personnel Department in relation to any complaints made by the public. Superintendent Middlemiss' explanation for making the enquiry was to see if the result of the enquiry would either negate or confirm his concerns about the claimant's suitability, which had been raised by the alleged adverse comment. If the adverse comment had been made and was therefore able to be relied upon in this selection exercise, the Tribunal could have seen some basis for making such an enquiry in order to see how the adverse comment could be judged and the weight attached to it. Since the Tribunal did not accept that the adverse comment was ever made, then any reliance upon the comment did not, in the Tribunal's view, provide any explanation for the making of any such enquiry.
Chairman:
Date and place of hearing: 8 – 12 October 2007;
15 – 19 October 2007;
30 – 31 October 2007;
15 – 16 November 2007; and
13 December 2007, Belfast
Date decision recorded in register and issued to parties: