THE INDUSTRIAL TRIBUNALS

CASE REF:	2134/11

CLAIMANT:			Donald Allen

RESPONDENT:		Chief Constable of the Police Service of Northern Ireland 

DECISION
The unanimous decision of the tribunal is that:-

(i)	the claimant does not have a disability within the meaning of Section 1 of the Disability Discrimination Act 1995, and his claims under that Act are dismissed; and

(ii)	the claimant did not suffer unlawful discrimination on the ground of his sex.

Constitution of Tribunal:
Chairman:		Mr D Buchanan
Members:		Ms E McFarline
			Mr B Collins

Appearances:
The claimant appeared in person.
The respondent was represented by Ms N Murnaghan, Barrister-at-Law, instructed by Crown Solicitor’s Office.

1.	(i)	The claimant, Mr Don Allen, is a sergeant in the Police Service of Northern Ireland.  By a claim presented to the industrial tribunal on 15 September 2011, the claimant alleged that he had been discriminated against on the grounds of his disability and sex, that he had suffered harassment on the ground of his disability, and that there had been a failure by the respondent to make reasonable adjustments.	
			
	(ii)	The respondent did not concede that he had a disability and raised time-issues in relation to his complaints.	
			
	(iii)	The issues to be determined by the tribunal were agreed at a Case Management Discussion on 18 January 2012 and are set out in their original form at Annex ‘A’ to this decision.	
			
	(iv)	On the second morning of the hearing, following an earlier instruction from the Chairman who was initially allocated to hear this case, the claimant indicated to the tribunal that his claim was confined to the following matters:-	

(a)	in relation to the allegation of sex discrimination, he was treated differently than a female police officer who was single as regards their applications for flexible working; and

(b)	in relation to disability discrimination, that he was harassed on the ground of his disability by being constantly referred to Occupational Health, thus undermining him in his role, and that there was a failure to make reasonable adjustments in not offering him a sergeant’s post in the OCMT (Occurrence Case Management Team) in Coleraine.

	(v)	In view of the narrowing of the issues by the claimant, the respondent’s counsel indicated that she accepted that no time point now arose in relation to these issues.  However, disability was still not conceded.	
			
2.	(i)	In order to determine the issues, the tribunal heard evidence from the claimant, and from Mr Mark Morrison, a police federation representative on his behalf.  A statement from former inspector, Stephen McPeak, on the claimant’s behalf, was agreed.	
			
	(ii)	The following gave evidence on behalf of the respondent:-	

Miss Ann Burnett, current Head of Human Resources for Finance and Support Services, and Head of HR in ‘H’ District at the relevant time;

Ms Rosie McHugh, HR Manager for the Command Unit in which the claimant was stationed at the relevant time;

Superintendent Nigel Goddard, Operations Manager for South and East Belfast, and at the relevant time Acting Chief Superintendent and performing the role of District Commander, ‘H’ District; and

Carole McClenaghan, EOI Coleraine, whose role included line managing the claimant for a period of time.

The following statements of evidence, adduced on behalf of the respondent, were agreed or the witnesses not required to give evidence : Superintendent Alan Skelton, Chief Inspector Nicky Thompson, Inspector Catherine Magee, Inspector Sean Fitzpatrick, and David Johnston.

	(iii)	The tribunal also had regard to documentary evidence to which it was referred by the parties.	
			
3.	(i)	As the respondent has not conceded that the claimant has a disability, it is convenient to deal with this issue first.  In doing so, we have had regard to Section 1 of the Disability Discrimination Act 1995, which provides that a person has a disability for the purposes of that Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.  In addition to the 1995 Act, we have also had regard to the Code of Practice and the Guidance issued under it.	
			
	(ii)	The claimant alleges that he was suffering from depression at the relevant time.

The onus is on the claimant to prove disability.  In this case his medical evidence consists of a short and very general letter from his own doctor which states that he is “suffering with anxiety symptoms and stress as a result of marital breakup and subsequent legal action”.	
			
	(iii)	There is no formal diagnosis of depression.  We bear in mind that depression is a very wide illness, encompassing a variety of possible types and effects.

We have kept in mind authorities such as Morgan  v  Staffordshire University [2002] IRLR 190 EAT where it was doubted, at Paragraph 20, whether loose terms such as ‘anxiety’, ‘stress’ or ‘depression’ would be sufficient to constitute an impairment, and J  v  DLA Piper UK LLP [2010] IRLR 936; [2010] ICR 1052 where the Employment Appeal Tribunal in Great Britain considered that there was a distinction to be drawn between a case where a person suffers from low mood and anxiety arising from clinical depression (which would amount to an impairment under the 1995 Act) and where the same symptoms were the reaction to an adverse life event (which would not amount to such an impairment).	
			
4.	(i)	In this case the claimant’s marriage had broken up, he was faced with difficulties in relation to childcare arrangements (he had custody of the children), and he was the subject of complaints at work one of which (relating to the alleged bullying and harassment of a female officer in Coleraine where both he and she were stationed) resulted in his involuntary transfer to Ballymena with conditions being placed on his attendance at Coleraine.	
			
	(ii)	The preponderance of entries in Occupational Health records record him as having no major mental health issues, and that the issues of concern to him were difficulties with his childcare arrangements, the problems this caused for night work, and the ongoing disciplinary matters.  There is only one reference to the potential applicability of the 1995 Act but it is completely illogical as it states the claimant was not medically unfit, and lists as his concerns those which we have just set out.	
			
	(iii)	There is no evidence of the alleged disability impacting on any way on the claimant’s ability to perform day-to-day activities.  (Indeed there is little evidence in respect of what he could or would not do), nor is there any evidence of substantial and long-term adverse effects.

On the contrary, the claimant was at work for most of the relevant period, and he made the case that he was performing his duties to a high standard at this time.  	
			
5.	(i)	We are therefore satisfied that the claimant did not have a disability within the meaning of Section 1 of the Disability Discrimination Act 1995.	
			
	(ii)	That finding is sufficient to dispose of his claims under the 1995 Act.  However, had he satisfied us that he did have a disability, we would have dismissed his substantive claims.

His allegations of harassment relate to actions, principally by Ms McHugh, in referring him to Occupational Health.  However, we are entirely satisfied that Ms McHugh, in so doing, acted in good faith, and as a result of the legitimate concerns of others which came to her attention.	
			
	(iii)	Any adjustment involving a return to Coleraine would not have been reasonable.  The claimant had been transferred out of Coleraine to Ballymena by Superintendent Goddard, who had found that the claimant had bullied and harassed a female constable in Coleraine.  The claimant disputes that finding, and states that it was flawed.  However, Superintendent Goddard was an able and rational officer who reached his conclusion, in good faith, on the information before him.  The female officer remained in Coleraine and it would have been totally inappropriate for someone found guilty of harassing her to be working in Coleraine on a substantial and regular basis (as opposed to the limited access permitted to the claimant to perform necessary parts of his duties).	
			
	(iv)	Similar consideration as at (iii) above apply to the claimant’s sex discrimination claim.  In any event the female sergeant with whom the claimant compares himself had different factual circumstances.

We are satisfied that insofar as flexible working was concerned, Mrs Burnett and Ms McHugh actively encouraged the claimant to apply for this and made every attempt to assist him.  It was the claimant who procrastinated in making his application.  Any reasonable suggestion by the claimant would have been considered, notwithstanding that the claimant did not fall within the terms of the Regulations in force at the relevant time.  In the case of Ms McHugh, her efforts on the claimant’s behalf were hardly the conduct of someone who was harassing him, albeit on the ground of disability.  There is no evidence to show that the claimant was treated differently on the ground of his sex.  His sex simply did not enter into the equation.

His claim of sex discrimination is dismissed.	
			
	(v)	In reaching this conclusion the tribunal has borne in mind Article 63A of the Sex Discrimination (Northern Ireland) Order 1976, as amended, dealing with the burden of proof, and the guidance given to tribunals on the interpretation of the statutory provisions shifting he burden of proof given by the Court of Appeal in England and Wales in Igen Ltd (formerly Leeds Careers Guidance) and Others  v  Wong; Chamberlain Solicitors and Another  v  Emokpae; and Brunel University  v  Webster [2005] IRLR 258.  This guidance is set out in full at an annex to the judgment in the Igen case, and we do not repeat it here.

We have also considered the more recent decisions of HM Court of Appeal in Northern Ireland in Curley  v  Chief Constable of the Police Service of Northern Ireland and Another [2009] NICA 8 and Nelson  v  Newry & Mourne District Council [2009] NICA 24.

In the former, Coghlin LJ at Paragraph 16 of his judgment emphasised the need for tribunals hearing cases of this nature to keep firmly in mind that such claims are grounded upon an allegation of discrimination (in that case religious discrimination).  This was emphasised by Girvan LJ in Paragraph 24 of the judgment in the latter case.	

6.	The respondent’s counsel indicated that if the claimant were unsuccessful, an application would be made by the respondent for costs against him.  This application will be listed in due course, unless the parties reach agreement on this matter.

Chairman:

Date and place of hearing:	15 – 18 May 2012, Belfast

Date decision recorded in register and issued to parties:

A N N E X  A

Case No: 2134/11IT 
-	THE MATTER OF AN APPLICATION TO THE INDUSTRIAL TRIBUNALS & FAIR EMPLOYMENT TRIBUNAL
-	Between: 
-	DONALD ALLEN
-	Claimant: 
-	CHIEF CONSTABLE OF THE POLICE SERVICE OF NORTHERN IRELAND
-	Respondent: 
-	LEGAL AND FACTUAL ISSUES
-	Legal Issues 
1.	Was the Claimant discriminated against on the grounds of his sex? 
2.	Was the Claimant disabled for the purposes of the DDA at all material times to this complaint? 
3.	If so, did the Respondent discriminate against the Claimant on the grounds of his disability, insofar as it failed to make reasonable adjustments to accommodate the Claimant’s alleged disability? 
Factual Issues 
4.	Did the Respondent fail to conclude an investigation into a bullying and harassment complaint against the Claimant which commenced in or about June 2010? 
5.	Was the complainant in the bullying and harassment complaint against the Claimant permitted to monitor the Claimant’s movements and harass him? 
6.	Did the Respondent pre-judge the bullying and harassment complaint against the Claimant (by re-deploying the Claimant) for reasons connected to his sex or his alleged disability? 
7.	Was the Claimant re-deployed as pan of the re-structuring of the 

‘Occurrence Case Management Team’ and ‘Contact Management’? 
8.	Did the Claimant lodge a grievance in relation to the processes following in respect of the bullying and harassment complaint against him? 
9.	Who are the comparators to whom the Claimant refers? 
10.	Who is an appropriate comparator for the Claimant’s particular circumstances? 
11.	Was the Claimant treated less favourably than female colleagues who had been found guilty of similar offences? 
12.	Did Ms Burnett have a meeting with the Claimant on 17 June 2010, during which she made discriminatory comments on the grounds of the Claimant’s sex and alleged disability? 
13.	Did the Respondent make inappropriate suggestions in relation to the Claimant’s child care arrangements? 
14.	Did the Respondent fail to advise the Claimant in relation to the availability of flexible working hours? 
15.	Does the Claimant have a responsibility to keep himself up-to-date with the Respondent’s internal policies? 
16.	If it is found that the Respondent did advise the Claimant of the possibility of flexible working, did the Claimant fail to make a formal application for flexible working hours? Were female colleagues who worked flexible hours treated more favourably than the Claimant, on the grounds of their sex?