CASE REF: 00408/01 FET
CLAIMANT: Colin Richardson
RESPONDENT: Prison Service/NIO
The unanimous decision of the Tribunal is that the claimant is entitled to receive the sum of £10,000.00 (£5,000.00 for injury to feelings and £5,000.00 for actual psychiatric injury) together with interest thereon as set out in the decision making a total of £14,449.35.
Constitution of Tribunal:
Chairman: Ms Crooke
Members: Mr Kerr
The claimant was represented by Mr C Hamill, Barrister-at-Law, instructed by Worthingtons, Solicitors.
The respondent were represented by Mr P Coll, Barrister-at-Law, instructed by The Crown Solicitor's Office.
Claim and defence
Sources of evidence
Patrick Sean Maguire;
Valerie McMillan; and
While the Tribunal had before it a witness statement for William McKee, he did not attend to give evidence on grounds of his own ill-health. Therefore his witness statement has been treated as having a very low evidential value. In addition to these witnesses, the Tribunal had an agreed bundle of documents before it, contained in two substantial files.
Findings of fact
(a) It was not set up under the sectarian harassment procedure. Governor Maguire in his evidence to the Tribunal confirmed that it should have been so set up. The consequence of this would have been that there would have been separation of the claimant, Officer Cregan and Prisoner Blaney.
(b) It was invoked under the COCDF procedure but no reference was made to Headquarters as required by this procedure.
(c) The COCDF 1 form is to be filled out and given to persons under investigation and all witnesses. Although there was evidence that this was done with Officer Cregan, there was no evidence that this form had been given to witnesses.
(d) There was evidence of bias by Governor McKee who said to Officer Cregan, "the only thing I want to establish there was the main thing was that you did not say it".
(e) There was provision for re-interview which was not taken up.
(f) The Governor failed to keep a log of the investigation.
(g) No assistant was appointed.
(h) No precautionary suspension was considered.
Analysis of evidence
THE BURDEN OF PROOF
(1) The onus lies on the claimant to show direct discrimination in accordance with the normal standard of proof.
(2) Discrimination need not be conscious there may be direct discrimination as a result of inbuilt and unrecognised prejudice of which the person discriminating is unaware.
(3) The discriminatory reason need not be the sole or even the principal reason for the discrimination – it is enough that it is a contributing cause in the sense of being a 'significant influence'.
(4) In determining whether there has been direct discrimination it is necessary in albeit the most obvious cases for the Tribunal to discover what was in the mind of the alleged discriminator. This will generally involve the Tribunal in making appropriate inferences from the primary facts which it finds.
(5) In deciding whether there is discrimination, the Tribunal must consider the totality of the facts.
(6) The need to identify a detriment is in addition to the need to finding less favourable treatment on the prohibited ground, though in many cases the detriment will be obvious. Some elements of the discriminator's conduct, though discriminatory, may give rise to disadvantages too minor or insignificant to count as detriments. The test for detriment is whether the treatment was of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment.
(7) A Tribunal may not make findings of direct discrimination save in respect of matters found in the originating application.
(i) In the Prison Service workforce was a significant imbalance regarding Catholic workers in the Prison Service. The Tribunal identified that at the time in question there would have been approximately 11% of Catholics making up the workforce with the greater number being Protestants.
(ii) The respondent did not use the harassment procedure and accepts that this procedure should have been applied to the complaint with the benefit of hindsight.
(iii) There was a poor, at best, level of record-keeping. The Tribunal noted that most of the respondent's witnesses relied on their memories of incidents and in some particular instances those memories were proved to be faulty.
(iv) There appeared to be an evidence of bias by Governor McKee in his interview of Officer Cregan. Although in his statement he said that he did not know Officer Cregan on first-name terms, he addressed him by his first name at the start of the interview. Governor McKee said, "all I want to know is, is that you did not say it". The Tribunal does not consider that this comment was taken out of context as claimed by the respondent, but believes that it was an indicator of the style of the investigation. There was no evidence in the record that Governor McKee questioned Officer Cregan regarding the allegations of the claimant that Officers King and Cregan were under the influence of drink while on duty, despite the fact that the allegations had been supported by the statement given to Governor McKee by Senior Officer Theresa Walker. Officer Cregan's response to Governor McKee regarding the incident of the claimant speaking to himself and Officer King was confused and contradictory. "On that Saturday the PO did interview the two of us. He did not interview me at all." Obviously he did.
(v) The Code of Conduct and Discipline "COCD" investigation did not follow its own required procedures in that there was no reference to Headquarters. There was no logging of the investigation and no evidence of pre-arranged questions. The Tribunal has also noted that no assistant was appointed to help in the investigation and this did not assist in keeping the records that the Tribunal would have expected to have been kept. There was no re-interview although there was provision in the course of the COCD investigation guidance for this to take place.
(a) On the day of the incident he spoke to the Security Governor and he and Senior Officer McCarroll prepared communication sheets regarding this incident.
(b) The claimant spoke to the Duty Governor on the afternoon of the incident. At 1620 hours on the day in question the claimant twice phoned Governor Davis and left messages for him. The claimant told his wife about the incident the next day and on that day Governor Martin gave back his two communication sheets to the claimant. On Wednesday 9 May 2001 the claimant went to the Security Department to see Governor Davis, he was not on duty and instead he spoke to Governor Maureen Johnston. He spoke to Security Prison Officer Molloy. He also spoke to Governor Maguire on Wednesday 9 May 2001. On Thursday 10 May 2001 he tried again to contact Governor Davis. On 10 May 2001 he spoke to Governor McKee, near Governor Maguire's office, and on 11 May 2001 he telephoned Valerie McMillan of the Equal Opportunities Unit at Headquarters. Certainly there was no cogent evidence provided by the respondent to rebut this version of events.
"There is absolutely no warrant for an inference that others would not have suffered from the failures of which Mr Qureshi was the victim, or that he was so on account of any discrimination on racial grounds. Incompetence does not, without more, become discrimination merely because the person affected by it is from an ethnic minority."
Incompetence can only go so far. There was considerable incompetence in this case and it was of such a magnitude, that the Tribunal considers that it failed to be an adequate explanation of the behaviour of the respondent. When the incompetence is added to the failure to follow the respondent's own procedures and codes, the Tribunal considers that this ceases to be incompetence and becomes discrimination. The Tribunal was not satisfied by the explanation given by the respondent and considers that it was not sufficient to rebut the conclusion that the respondent was to be treated as having carried out the acts complained of.
1. Injury to feelings
In reaching its decision under this heading the Tribunal has had regard to the case of Vento  IRLR 102. The Tribunal considered that the claimant had suffered serious injury to feelings and that it was fair to award £5,000.00 to reflect this, being the mid-band of the Vento guidance. The Tribunal is basing its decision on the evidence of the claimant from which it was apparent that the claimant felt bitterly hurt by the failure of his line management and respondent in general to support him in the manner in which the claim was investigated. He was also deeply hurt by the fact that the respondent did not seem to take any of what the claimant regarded as being the normal steps to see about getting him back into work. There was no assistance or reassurance given to the claimant at all.
2. Actual psychiatric damage
This is a more difficult area in which to compensate the claimant. It was submitted by the claimant's representative that the appropriate band within which to compensate the claimant lay from £7,500.00 to £60,000.00. It was accepted that the incident in May 2001 was not the whole cause of the claimant's condition. In reaching its decision the Tribunal has had reference to the report of Doctor Graeme McDonald which was carried out on 14 July 2006. We have referred to the findings of Doctor McDonald elsewhere in this decision, but in particular we take note of the fact that his opinion was that the incident in May 2001 was 'but one staging post in the development of chronic emotional ill-health in the claimant'. Four major events were identified and these were in 1995, in 1997, in May 2001, which is the subject of these proceedings, and in November 2001 which was the incident that eventually led to his retirement on medical grounds. The question of how much each of these four contributors caused the claimant's state of anxiety and emotional distress is not an easy one to assess. The Tribunal has regarded the fact that the May 2001 event was one event out of four major events and has assigned a percentage value of 25% to it. The claimant is a man who is seriously unwell and the Tribunal would have regarded the figure of £20,000.00 as being a fair representation of the actual psychiatric injury which he has suffered. However the Tribunal accepts that three other events led into the claimant's eventual state and accordingly reduces compensation under this heading to £5,000.00.
22 May 2001 - 31 December 2001 = 224 days £ 491.00
2002 = 365 days £ 800.00
2003 = 365 days £ 800.00
2004 = 365 days £ 800.00
2005 = 365 days £ 800.00
1 January 2006 - 12 December 2006 = 346 days £ 758.35
Injury to feelings £ 5,000.00
Psychiatric Injury £ 5,000.00
Interest 22 May 2001 - 12 December 2006 £ 4,449.35
Date and place of hearing: 25 - 29 September 2006, Belfast
Date decision recorded in register and issued to parties: