THE INDUSTRIAL TRIBUNALS

CASE REF:  994/11

CLAIMANT:			Paula Elizabeth Johnston

RESPONDENT:		The Police Service of Northern Ireland (PSNI)

DECISION
The unanimous decision of the tribunal (delivered orally) was that the claim of unlawful sex discrimination was dismissed. 

Constitution of Tribunal:
Vice President:	Mr N Kelly	
Members:		Mrs V Walker
			Ms F Cummins

Appearances:
The claimant was represented by Mr D Campbell of the Police Federation.
The respondent was represented by Mr P Coll, Barrister-at-Law, instructed by the Crown Solicitor’s Office.

1.	The unanimous decision of the tribunal was that the claim of unlawful sex discrimination was dismissed.  This decision was given orally at the end of the hearing on 4 July 2012 in accordance with Rule 28 of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.  

2.	This document records the reasons for that decision in accordance with Rule 30(2).

The Issue

3.	The issue for the tribunal to determine was:-

		“Whether the claimant had been subjected to direct sex discrimination in connection with the respondent’s decision to subject her to formal disciplinary proceedings on foot of a recommendation from the Police Ombudsman for Northern Ireland.”

The relevant comparators relied on by the claimant were Sergeant McBride, Sergeant Scott and Constable Murray.  

The hearing

4.	The tribunal sat on 4 July 2012 and heard evidence from the claimant, Chief Superintendent Clarke and Superintendent Taylor.  It heard oral submissions from both Mr Campbell (Police Federation) for the claimant and from Mr Coll, Barrister-at-Law for the respondent.  

5.	The claimant, in the course of the hearing, tried to expand her case to include a comparison between her treatment and with the treatment afforded to a fourth officer, Inspector Brown, and to further expand her claim to include an allegation of sex discrimination in relation to a decision by the respondent to suspend her from duty pending disciplinary procedures.  Those matters were not part of the agreed list of issues identified during the case management process, were not in the agreed statement of background facts and were not mentioned in the claim form.  The claimant was therefore not allowed to pursue those matters or to expand her claim accordingly.  The claimant was directed to confine her evidence and her submissions to the agreed issues identified in the course of the case management process and which are summarised in paragraph (3) above.

Relevant findings of fact

6.	The claimant was at all relevant times a sergeant in the PSNI.  She was a custody sergeant in Strand Road.  

7.	On 3 October 2009 she was on duty from 8.00am to approximately 5.00pm.  

8.	Custody sergeants customarily attended in the custody suite 30 minutes before the start of their shift to arrange an orderly handover of duties.  The claimant would therefore have been in the custody suite from approximately 7.30am on 3 October 2009.

9.	A Constable Murray, one of the claimant’s named comparators, was an officer working under her supervision, direction and control as gaoler.  A Sergeant McBride, again one of her comparators, was the custody sergeant who relieved the claimant with effect from 5.00pm on 3 October 2009.  As indicated above, Sergeant McBride attended the custody suite approximately 30 minutes before the start of the shift to ensure an orderly handover.

10.	A particular prisoner (prisoner A) was in custody in Strand Road on that day.  He had been arrested during the previous evening on suspicion of assault occasioning actual bodily harm and threats to kill.  He had previously been convicted of murdering a police officer.

11.	In the course of that afternoon, prisoner A had been brought from the cells by an officer who was not part of the custody team and had been placed in a consultation room to facilitate a meeting with his solicitor.  His shoes and laces were not removed.  After meeting with his client, the solicitor left prisoner A unattended in the consultation room and went to speak with the claimant in the office area of the custody suite.  

12.	Sergeant McBride arrived in the custody area about 4.30pm.  At that stage the claimant was occupied typing some handwritten representations, which prisoner A’s solicitor had passed to her, on to the custody record and clarifying certain issues over the telephone in relation to that custody record  

13.	Between 4.30pm and 5.00pm on 3 October 2009, there were therefore two sergeants in the custody suite.  However, the claimant remained the custody sergeant until 5.00pm.

14.	After the claimant had left the custody area and after Sergeant McBride had taken over as custody sergeant, Sergeant McBride decided to formally charge prisoner A.  His solicitor, who was still standing in the corridor of the custody suite, told Sergeant McBride that prisoner A was in the consultation room and offered to fetch him.  Sergeant McBride had been unaware, until that point, that prisoner A had been out of his cell.

15.	Prisoner A’s solicitor went to the consultation room and found his client hanging from the window frame.  He had used his shoe laces as a ligature.  Efforts to resuscitate prisoner A failed.

16.	Given the circumstances and the identity of prisoner A, the death of this prisoner in police custody was designated as a critical incident by the respondent.  As is standard in such cases, the Police Ombudsman investigated the incident and produced a report which contained recommendations for disciplinary action.

17.	As is again standard in such incidents, the report from the Police Ombudsman was considered by a PSNI officer described as a “supervising member” who was a member of the Professional Standards Department (PSD). 

18.	That supervising member would normally have been Superintendent Taylor.  However, Superintendent Taylor had been a good friend of the police officer who had been murdered by prisoner A and he therefore felt that it would not have been appropriate for him to have any part in the investigation of matters directly related to that prisoner’s death in police custody.  For that reason, the supervising member in relation to the incident was the head of the PSD, Chief Superintendent Clarke.  

19.	The Police Ombudsman’s report set out the details of the incident and the evidence on which the report was based.  It made the following recommendations:-

			(i)	that the claimant should face a formal disciplinary hearing;

			(ii)	that Constable Murray should receive advice and guidance;

(iii)	that Sergeant McBride should receive a superintendent’s written warning regarding his failure to ensure an adequate handover of responsibilities on 3 October 2009 and that he should receive advice and guidance in relation to his failure to properly use the defibrillator in resuscitation attempts.

20.	The least serious informal disciplinary sanction available to PSNI was a “Management Discussion”.  Above that, in terms of informal disciplinary sanctions, were, in ascending order, “Advice and Guidance” and a “Superintendent’s Written Warning”.  Chief Superintendent Clarke read the Police Ombudsman’s report, the evidence attached to it and the recommendations.  He decided to accept and implement those recommendations.  

21.	The disciplinary procedure proceeded against the claimant.  It culminated in a formal disciplinary hearing which was conducted by officers from an English police force.  Following that formal disciplinary hearing, the disciplinary charges against the claimant were dismissed.   

22.	The other comparator named by the claimant, Sergeant Scott, was the subject of a separate Police Ombudsman’s report received by the PSNI on 21 May 2010, some five months before the Police Ombudsman’s report in relation to the claimant, Sergeant McBride and Constable Murray was received by the PSNI.  The report in respect of Sergeant Scott related to failures in respect of record keeping.  Since that was not directly related to the death of prisoner A, that report was considered by Superintendent Taylor as supervising member.  Superintendent Taylor accepted the Police Ombudsman’s recommendation that Sergeant Scott should receive a superintendent’s written warning.

Relevant Law

23.	This is a claim of direct sex discrimination.  As the EAT pointed out in Islington Borough Council –v- Ladele [2009] ICR 387:-

		“The concept of direct discrimination is fundamentally a simple one.  A claimant suffers some form of detriment (using that term very broadly) and the reason for that detrimental treatment is the prohibited ground.”

24.	In essence, direct discrimination is less favourable treatment “on grounds of” gender.  Gender does not need to be the main reason for the detriment; it would be sufficient that it had a significant influence on the detriment.  

25.	Direct evidence of discrimination is rare and tribunals frequently have to infer discrimination from all the material facts.  For that reason the legislation provides for a shifting burden of proof.  If the claimant proves facts from which the tribunal could conclude, in the absence of an adequate explanation, that there has been unlawful discrimination, the burden of proof moves to the respondent.  It is then up to the respondent to prove, on the balance of probabilities, that the treatment of the claimant was in no sense whatsoever on the ground of gender.

In Madarassy –v- Nomura International PLC [2007] EWCA Civ 33, the GB Court of Appeal stated:

“The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination.  They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination”.  

In Curley –v- the Chief Constable of the Police Service of Northern Ireland (2009) NICA Coghlin LJ stated:-

“However this Court would wish to emphasise the need for a tribunal engaged in determining this type of case to keep firmly in mind the fact that the claim was founded on an allegation of religious discrimination.  The need to retain such a focus is particularly important when considering the potential application of the [relevant provisions]”.  

Decision

26.	As indicated above, there needs to be evidence before the tribunal to establish a prima facie case of discrimination (discounting at this stage any explanation offered by the respondent) before the burden of proof shifts to the respondent and before the respondent is obliged to establish that his treatment of the claimant was not based on gender.

27.	The tribunal has determined that there was insufficient evidence before the tribunal on which an inference of sex discrimination could properly be drawn in this case.  The claimant was a female.  The three comparators identified by the claimant were male.  Even if the tribunal were satisfied that the claimant had been treated less favourably, in analogous circumstances, than those three comparators, and it is not, a difference in status (gender) and a difference in treatment would not, without more, be sufficient to shift the burden of proof on to the respondent.  

28.	In plain terms, the evidence before this tribunal shows nothing more than that the respondent received a detailed report from the appropriate statutory authority which had been entrusted with the responsibility of inquiring into incidents such as a prisoner dying in police custody.  That report set out in clear terms a recommendation that the claimant and her three selected comparators should be disciplined in different ways.  The respondent, in the person of Chief Superintendent Clarke, read that report, the recommendations and the evidence on which the report and recommendations were based.  Chief Superintendent Clarke decided to accept those recommendations and to implement them.  He took the view that it was clear that prisoner A had been moved to a consultation room by an officer who was not part of the custody team.  The prisoner was left in that consultation room, which contained an obvious ligature point, and he was left with his shoe laces.  He was left unsupervised for a significant period of time.  The claimant was therefore given the opportunity and the means to end his life.  The claimant, as the custody sergeant, was or should have been aware that it was her responsibility to safeguard the health and wellbeing of the prisoners in her care.  She was in charge.  Therefore the tribunal takes the view that Chief Superintendent Clarke had been perfectly entitled to take the view that the claimant had a case to answer and that in the circumstances of this case had been entirely appropriate for the PSNI to accept the recommendation of the Police Ombudsman in full.

29.	The claimant’s representative was asked on no less than five occasions to state specifically what he was suggesting that Chief Superintendent Clarke should have done in relation to the Police Ombudsman’s report other than to have read it, analysed it and accepted it.  Mr Campbell was unable to explain what he was, on behalf of the claimant, suggesting should additionally have been done by Chief Superintendent Clarke.  He was not suggesting that for example, the witnesses who had been interviewed by the investigators acting on behalf of the Police Ombudsman, should then have been re-interviewed by the respondent.  

30.	It also has to be remembered that under Section 59 of the Police (Northern Ireland) Act 1998, the Police Ombudsman was entitled to direct that the recommended disciplinary action be implemented even if Chief Superintendent Clarke, on behalf of the respondent, had, for some reason, disagreed with the recommendation. 

31.	The claimant argued that there were inaccuracies in the Police Ombudsman’s report which could have been identified if Chief Superintendent Clarke had taken some further (unspecified) action before accepting the recommendations for disciplinary action.  However, the tribunal has no jurisdiction to review or to criticise the findings or the recommendations contained within the Police Ombudsman’s report.  No allegation of sex discrimination had been made by the claimant against the Police Ombudsman.  The Police Ombudsman is not a respondent in this case.  

32.	The tribunal is therefore at a loss to understand how or why the claimant argues that the tribunal should infer that Chief Superintendent Clarke was motivated by gender when he accepted and implemented the recommendations of the Police Ombudsman.  This was a sensitive and critical incident where a prisoner, who had previously been convicted of murdering a police officer, died in a police station.  It was also an incident where the Police Ombudsman had recommended specific disciplinary action at different levels against the four police officers who had had some involvement in the matter.  In such circumstances it would have been bizarre if the PSNI had done anything other than accept the recommendation of the Police Ombudsman.  There is simply no basis on which the tribunal could properly infer that this obvious and inevitable course of action on the part of the respondent was motivated by gender or by any other improper motive. 

33.	If the tribunal is wrong in its conclusion that there was no prima facie case of discrimination, the tribunal would, in any event, be satisfied, on the evidence adduced before it, that the respondent has shown that its treatment of the claimant was not related to gender.  Chief Superintendent Clarke explained in evidence, and in a manner consistent with his correspondence of 21 October 2010 to Assistant Chief Constable Jones, that his view was that the claimant had failed to properly supervise the officers in the custody suite, had failed to remove prisoner A’s shoes and shoe laces, and had not sufficiently supervised prisoner A when that prisoner was out of his cell.  In Chief Superintendent Clarke’s view the claimant’s actions did not comply with ACPO guidance and had contributed to giving prisoner A the opportunity to kill himself.  The tribunal has listened to Chief Superintendent Clarke give his evidence and has concluded that he was telling the truth and that his decision to accept the recommendation made by the Ombudsman was in no way motivated by gender.

34.	Chief Superintendent Clarke also stated in evidence that he had accepted the recommendation to treat Constable Murray more leniently in terms of discipline because Constable Murray was a constable and not a sergeant.  While his actions could be open to criticism, the claimant was the custody sergeant and carried primary responsibility for ensuring the health and safety of prisoners.  In relation to Sergeant McBride, his main error had been failing to insist on a sufficient handover of responsibilities when he took over as custody sergeant from the claimant.  As a result of that failure, Sergeant McBride did not know that prisoner A was not in his cell and was in fact in the consultation room.  A secondary issue was Sergeant McBride’s failure to use a defibrillator.  However, the Ombudsman and the respondent concluded that neither issue had contributed to prisoner A’s death.  

35.	In relation to Sergeant Scott, the decision maker (the supervising member) was different.  Superintendent Taylor made the decision to accept the separate Police Ombudsman’s report in that case.  The decision to accept the Police Ombudsman’s recommendation for a particular level of disciplinary action against Sergeant Scott was also made some five months earlier than the decision to accept the separate recommendations made by the Police Ombudsman in relation to the claimant, Sergeant McBride, and Constable Murray.  

36.	The respondent accepted the recommendations of the Police Ombudsman in relation to disciplinary action against the claimant, Sergeant McBride and Constable Murray and, separately, against Sergeant Scott.  The claimant was the only female officer; the three comparators relied on by the claimant were male.  However, the respondent implemented those recommendations in full.  It did not increase the level of disciplinary action taken against the claimant or lessen the level of disciplinary action against the male comparators.  The fact that the disciplinary charges against the claimant were dismissed at the formal disciplinary hearing is nothing to the point.  Given the findings of the Police Ombudsman, it was entirely proper for the respondent to implement formal disciplinary procedures against the claimant and to allow the claimant to respond to the disciplinary charges in a formal setting.  As stated above, the tribunal’s decision is that the claimant has not established a prima facie case of discrimination.  Even if a prima facie case of discrimination had been established, the tribunal is content the decision of the respondent to accept the recommendations of the Police Ombudsman had nothing to do with gender.   

37.	The tribunal is therefore entirely satisfied that the claimant’s claim of unlawful sex discrimination is without merit and that it should be dismissed.   

Chairman:

Date and place of hearing:  4 July 2012, Belfast

Date decision recorded in register and issued to parties: