CASE REF: 00406/00FET
CLAIMANT: Joseph Edward Gibson
RESPONDENTS: 1. Police Authority for Northern Ireland
2. Inspector J M O'Grady
3. Sergeant J E D McIlwrath
4. Chief Constable of Royal Ulster Constabulary
The unanimous decision of the Tribunal is that the decision to transfer the claimant from the RUC Motor Transport Depot was unlawful discrimination on grounds of religious belief. The second and third respondents are dismissed from the proceedings. The tribunal will reconvene to consider the appropriate remedy.
Constitution of Tribunal:
Chairman: Mrs M Watson
Members: Mrs D Adams
Mr I Foster
The claimant was represented by Mr B McKee Barrister-at-Law, instructed by John Boston & Co., Solicitors.
The respondent was represented by Mr S Ritchie Barrister-at-Law, instructed by The Crown Solicitor's Office.
Issues for Determination –
transferred from the Royal Ulster Constabulary (hereinafter referred to as RUC) Motor Transport Depot while Reserve Constable Scates was retained.
(ii) Whether membership of the Masonic Order is a religious belief within the meaning of the Fair Employment and Treatment (Northern Ireland) Order 1998.
(iii) Whether the application is within time and if not, whether it would be just and equitable in all the circumstances to extend the time for lodging the application.
Assertions of the Parties –
(a) he was a member of the Masonic Order and
(b) he was vehemently opposed to -
(i) the Good Friday Agreement,
(ii) political power-sharing in Northern Ireland,
(iii) the participation of Sinn Fein in any political process,
(iv) the Parades Commission,
(v) the reform of the Police in Northern Ireland, and
(c) he supported the Protestant/Unionist protestors at Drumcree.
officer in the M.T. Depot, the claimant alleged that with regard to the day-to-day running of the M.T. Depot, Sergeant McIlwrath's word was law. He alleged that during the process of deciding who was to be retained, Sergeant McIlwrath would have had an input and used that input to ensure that the comparator, Reserve Constable Scates, who shared his religious belief and political opinion, was retained rather than the claimant.
Sources of Evidence
(i) Whether the application had been made within time or, if not, whether, in all the circumstances, the tribunal considered it just and equitable to extend time.
(ii) Whether a prima facie case of discrimination had been made out against the second respondent, Inspector O'Grady.
(iii) Whether a prima facie case had been made that the Masonic Order is a religious belief for the purposes of Article 3 of the Fair Employment and Treatment (Northern Ireland) Order 1998.
(i) The respondent accepted that they had been caused no prejudice by the delay.
(ii) The claimant had no other forum in which he could seek a remedy for his claim of religious discrimination.
(iii) The claimant was suffering from a severe depressive illness for some time after the acts of alleged discrimination.
(iv) The claimant's assertion that he was reluctant to "take on" either or both of the Royal Ulster Constabulary and the Masonic Order. He delayed making the claims of unlawful discrimination until after he had exhausted his alternative internal appeals.
(v) The respondents were not prejudiced in their ability to respond to the complaint by the delay.
Findings of Fact
No. 59/98. This states, at Paragraph 3(1), that no-one may drive a police vehicle unless, in addition to a current driving licence, they have a valid authorisation card issued by Force Transport Branch.
(i) Test Only Driver – has passed a police driving test.
(ii) Standard Driver – has also completed a four week driving course at standard level.
(iii) Advanced Driver – has completed the standard course and a further four week course at advanced level.
"Supervisory ranks are reminded that when detailing driving duties, only the best trained drivers available should be used".
"Career Management will liaise with Inspector O'Grady regarding the selection and movement of personnel". (emphasis added)
They, Career Management, were also to advise Human Resources Planning of the officers "selected" so that establishment adjustments could be made. (emphasis added.)
Sergeant Constable Reserve Constable
Drivers 3 18 36
M.T. Escorts 7
Ops. Planning 1.
(i) Superintendent Kearney, Road Policing Development Branch, who chaired most of the meetings in this process and who was responsible for liaising with more senior ranks.
(ii) Chief Inspector Wilkinson, Transport Liaison Officer (to whom Inspector O'Grady reported).
(iii) Inspector O'Grady.
(iv) Sergeant McIlwrath.
(v) Inspector McCune.
(i) Motorcyclists (Class 7) for dispatch duties.
(ii) Drivers holding Class 1 licence.
(iii) Drivers holding PCV licence.
Those officers remaining were to be included in two separate random selection processes (one for Regular Constables, one for Reserve Constables) for transfer out of the depot.
Absence of religious belief or political opinion is included under Schedule 1 of the Order. 'Relevant circumstances' includes employment and the provisions of the Order apply to the office of constable which is to be treated as employment (Article 94). Under Article 37 of the Order, employers and principals are to be treated as doing or authorising acts done in the course of the employment. The first and fourth respondents are thereby liable for the actions of the personnel who conducted this selection process in the course of their employment.
BURDEN OF PROOF
Where, on the hearing of a complaint under Article 38, the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent ----
(a) has committed an act of unlawful discrimination or unlawful harassment against the claimant, or
(b) is by virtue of Article 35 or 36 to be treated as having committed such an act of discrimination or harassment against the claimant,
(c) the tribunal shall 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.
It found the following;
(a) The claimant suffered a detriment in his employment in that he was selected for transfer from his post of driver at the first respondent's M.T. Depot.
(b) The comparator was treated more favourably in that he was retained in the M.T. Depot.
(c) The claimant was better trained than the comparator in that he was a Standard Test driver and the comparator was not.
(d) The comparator was a member of the Masonic Order while the claimant was not. The tribunal have found that there is a difference in their religious beliefs for the purposes of the Fair Employment and Treatment (Northern Ireland) Order 1998.
(e) There was at least one other person who was also a member of the Masonic Order who had some involvement in the selection process.
(f) The process of selection of those to be transferred was not systematic and not in accord with the first respondent's Policy on Recruitment and Selection or the Fair Employment Code of Practice.
(g) There was no evidence before us from Chief Inspector Wilkinson. We were informed that he was ill but no medical report was provided. We were also informed that he was not a member of the Masonic Order but no evidence was laid to that effect. Inspector McCune was only available to give her evidence after all the other witnesses and it became clear during her evidence that Chief Inspector Wilkinson had a much greater role in the process than had previously been realised, not least his involvement in the introduction of the disputed criterion and his role in not supporting the automatic transfer of the escorts proposed by Inspector McCune.
(h) The tribunal was satisfied that the claimant and Sergeant Lipsett felt uncomfortable in their workplace because they were not Masons.
"The shifting of the burden to employers means that tribunals are entitled to expect employers to call evidence which is sufficient to discharge the burden of proving that the explanation advanced was non-discriminatory and that it was the real reason for what occurred. Equivocal or evasive answers to legitimate queries in statutory questionnaires, failures to follow recommendations in relevant codes of practice, or the failure to call as witnesses those who were involved in the events and decisions about which complaint is made will all properly assume a greater significance in future …"
Dates and place of hearing: 20-24 March, 2006
12-13 April, 2006
15-19 May, 2006
24 May, 2006 all Belfast.
Date decision recorded in register and issued to parties: