FAIR EMPLOYMENT TRIBUNAL

CASE REF:   00408/01 FET

CLAIMANT:		Colin Richardson

RESPONDENT:		Prison Service/NIO

DECISION

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
			Mr McCrossan

Appearances:
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

1.	The claim of the claimant was for victimisation, harassment, discrimination and a failure of the employer to adequately investigate and deal with a complaint.  In its response the respondent denied discriminating against the claimant on the grounds of his religious belief and/or political opinion and alleged that it did carry out an internal investigation into the complaint of the claimant on 10 May 2001, which said investigation concluded on 21 May 2001.  

Applicable law

2.	The applicable law is to be found in the Fair Employment and Treatment (Northern Ireland) Order 1998.

Sources of evidence

3.	The Tribunal heard evidence from the claimant on his own behalf and the claimant’s wife.  The following persons gave evidence on behalf of the respondent:-

Patrick Sean Maguire;

Julie Clingan;

Joe Simpson;

Ivor Barton;

Paul Whiteside;

Maureen Johnston;

Hilary Wilson;

Valerie McMillan; and

Stephen Davis.

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

4.	At the time in question, which was January to May 2001, the claimant was a Principal Prison Officer in Mourne House, Maghaberry Prison.  The claimant is a Protestant and his wife is a member of the Roman Catholic community.

5.	On 27 January 2001, the claimant spoke to Prison Officers King and Cregan in the prison dining hall about returning from lunch late and smelling of alcohol.  After this conversation finished, Officer King stayed to speak to the claimant about an operational matter.  

6.	While this was going on, a prisoner who was perceived to be a member of the Loyalist Volunteer Force, called Blaney, tried to enter the dining room, but desisted when he saw the claimant was with a prison officer.  Officer Cregan spoke to Blaney outside the dining hall.  The claimant left the dining hall.  

7.	Prisoner Blaney was on report on 6 May 2001.

8.	On 8 May 2001, Blaney told the claimant and Senior Officer Anne McCarroll that he had taunted Officer Cregan when he had seen Officers King and Cregan being reprimanded for lateness and that Cregan had said, “I knew him when he was just a officer in the Maze and he was no good then, what do you expect when his fucking wife is a fenian and a bigot, she wouldn’t even speak to staff”.  (Hereinafter this will be referred to as the sectarian remark.)

9.	The claimant and Senior Officer McCarroll completed reports about this incident for the Security Governor.

10.	The claimant spoke to the Duty Governor, Governor Martin, that afternoon (8 May 2001) expressing concerns for his personal security.

11.	Governor Martin did not move Prisoner Blaney and Officer Cregan away from the claimant, even pending investigation.  

12.	The claimant tried to contact Governor Davis without success that afternoon.

13.	The claimant gave papers about the incident to Governor Martin who said that the allegations were of concern.

14.	Governor Martin told the claimant to contact the Security Department and he did so on 9 May 2001 at 9.00 am.  Governor Davis was not there, but the claimant spoke to Governor Maureen Johnston about a serious breach of his security, difficulties with working with Officer Cregan and Loyalist Volunteer Force terrorist incidents near his home.  Protection schemes were discussed but no choice was made by the claimant.

15.	Governor Johnston contacted the Prison Liaison Officer and explained the claimant’s concerns over his personal security.  The liaison officer told her that the police had no information about the claimant and she told the claimant this.  The claimant was still not reassured and the Governor asked the liaison officer to speak directly to the claimant.  He did so.

16.	The claimant was referred to Governor Ian Johnston of Personnel who discussed the case with Governor Maguire, the director of custody.

17.	The claimant felt intimidated at having to speak to the staff of D Wing about what had happened.  Officer Cregan was hostile to the claimant.

18.	The claimant attempted to speak to Governor Maguire and Governor Davis without success.  He was then told by Governor McKee that he had been tasked to carry out an investigation of the incident.  

19.	Staff were discussing the matter amongst themselves.  There was no evidence from the respondent that this had been prohibited by it.  The claimant felt ill and stressed and was absent from work as a result on 10 May 2001.  He returned to work on 29 May 2001.

20.	The claimant conveyed to the Governors how seriously he viewed the situation and the Governors accepted that this was a serious matter.

21.	On 11 May 2001 he contacted Valerie McMillan, Head of Equal Opportunities, and told her about the sectarian comment.  She confirmed that she had received but not read the communication sheets he had prepared and had copied to her.  There was a divergence in the evidence between that of Valerie McMillan and that of the claimant.  He said he asked her to deal with the complaint and record it.  She said that he never asked to invoke the procedure but to note his complaint only.  The panel prefers the version given by the claimant.  It was common case that the claimant’s complaint was to be recorded.  Why would the claimant contact Valerie McMillan if not to make a complaint?  She did not ask him if he wanted to make a complaint, she regarded herself as satisfied that he knew the procedure.  She did not in any way probe the approach of the claimant.

22.	There was an ongoing discussion about the claimant’s complaint amongst the prisoners as evidenced by the statements of Prison Officer Shields and Senior Officer Theresa Walker and the claimant’s own communication sheet about the approach of Officer Beggs.

23.	The respondent has a procedure called ‘Mental Wellbeing at Work’, but this was not raised in any detail by the claimant other than to refer to it in his statement.  

24.	Governor Ian Johnston and Jane McBratney, a Civil Servant, met the claimant in a café in Moira and told him the investigation was ongoing but that Cregan and Blaney had not been moved.  

25.	There were procedural deficiencies in how the investigation was carried out:-

(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.

26.	The findings were communicated to the claimant by Governor Maguire on 25 May 2001 and the claimant was told that there was no corroboration that Officer Cregan had ever said this to Blaney.  

27.	The Tribunal was satisfied that the actual comparators identified by the claimant – Officer Caroline Murdock, Officer Stanley McCartan, Officer Lynne Patton, Officer Trevor Loughran, Officer Sandra Forsythe, Officer Alistair Kearney and an unnamed female civil servant from Maghaberry Personnel – were not appropriate and helpful comparators.  The facts of these cases were very far removed from what transpired in the claimant’s case, so as such they could not serve as proper comparators.  A closer candidate for being a comparator was Officer Laurence Naish.  Officer Naish also had a brush with Prisoner Blaney whereby he handed a brass medal to Officer Naish saying, “that is for you, sure you are a fenian lover anyway”.  The Tribunal also reject this situation as a proper comparator because there was no third party involvement of what was allegedly said to Prisoner Blaney by another prison officer.  The action was taken directly by Prisoner Blaney in the claimant’s case.  Furthermore there was no investigation by the respondent into this incident.

28.	Prisoner Blaney was a prisoner who appeared to be consistently in trouble with the authorities in the prison.

29.	There was a lack of record-keeping on the part of the Prison Service.  Most of the Prison Service witnesses relied on their memory of incidents and in some cases the memory was proved to be defective by cross-examination.  

30.	Doctor Graeme McDonald FRCPSYCH, Consultant Psychiatrist, examined the claimant on 14 July 2006.  In his report he offered the opinion that the claimant was emotionally unwell before May 2001 and predisposed to chronic emotional ill-health.  He agreed with the view of Professor Jacqui Bates-Gaston, a Clinical Psychologist, that this predisposition arose from incidents in 1995 and 1997.  Professor Bates-Gaston went onto say that the claimant had a post traumatic stress disorder ‘response pattern’ which emanated from the assault in 1995 from which he never fully recovered.  She took the view that even if the apparent source of work-related stress was removed, the claimant’s condition is likely to be permanent.  Doctor McDonald accepted that the diagnostic criteria in the American DSM 4 IV classification would have been deemed to have been met by the test administered by Professor Bates-Gaston to the claimant.  He said that he did not accept that diagnosis of post traumatic stress disorder was made out  under the International classification of mental and behavioural disorders definition.  The main conclusion of his report was that he believed that it was likely that the claimant would have suffered considerable emotional ill-health anyway aside from the incident in May 2001.  He concluded that it would be reasonable to assert that the incident coloured and worsened the claimant’s condition.  Various factors such as the disability from the knee injury, the death of the claimant’s father, the chronic illness of the claimant’s wife, the claimant’s irritable bowel syndrome and arthralgia would have been sufficient to cause significant  mental ill-health.  The Tribunal accepts that the claimant was suffering from a clinically well-recognised condition.  

31.	Eventually the claimant was retired on medical grounds on 12 July 2003.  

32.	In terms of religious make-up of the workforce of the respondent, there was a very substantial imbalance against the Roman Catholic community.  In January 2001 the Prison Service workforce was made up of approximately 11% of the Roman Catholic community and 89% of the Protestant community.  

Analysis of evidence

33.	In assessing the credibility of the witnesses for both sides, the Tribunal reached the conclusion that there was very little to choose between the respective sides.  The claimant in the giving of his evidence was angry, embittered, hostile and on many occasions had great difficulty in answering the questions directly.  The Tribunal accepts that this was not a deliberate policy on the part of the claimant but more likely than not to be the result of his condition.  The respondent’s witnesses were at times vague in the giving of their evidence.  Their evidence was heavily based on their memories of the events and not given by reference to contemporaneously recorded notes in the large part.  In cross-examination, it was noticeable that when tested, recollections proved to be faulty in respect of a number of the witnesses.  It would have been good industrial practice for the respondent to have had considerably more contemporaneous records, especially during the investigation of the complaint than were offered to the Tribunal.  Governor Maguire, who was the most senior member of the Prison Service giving evidence to the Tribunal, admitted that there were inadequacies in the investigation and that with hindsight things could have been done differently.

Conclusions

THE BURDEN OF PROOF

34.	In reaching its decision the Tribunal was influenced by the factors required in proof of direct discrimination set out in the case of Law Society  v  Bahl [2003] IRLR 640.  These are as follows:-

(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.

35.	The Tribunal has also considered the Shamoon guidance that it is only possible to decide whether a hypothetical comparator would have been treated differently when it is decided what the reason for the treatment was.  (Shamoon  v  The Chief Constable of the RUC [2003] IRLR 285.)

36.	It is hard to resist the conclusion that the Prison Service simply did not treat this complaint seriously.  While incompetence may not be discrimination without further indicators, the level of incompetence and failure to keep records in this case was such that the Tribunal considers that there must have been an underlying reason and that reason was discrimination.  The Tribunal has identified the following primary facts from which it may be possible to draw an inference of discrimination:- 

(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.

37.	The Tribunal unanimously concludes that these are all facts from which it is possible to draw an inference of discrimination.  As the burden of proof has shifted, it is now a matter for the respondent to give an adequate explanation for the act of unlawful discrimination or unlawful harassment against the claimant.

38.	Whilst the Tribunal accepts that the respondent has given a satisfactory explanation for why it failed to separate Officer Cregan, Prisoner Blaney and the claimant which was that if they separated for every incident, it would soon be impossible to run the prison, as this would have been used as a tool to disrupt the prison, the Tribunal does not accept that there was any adequate reason for the failure to properly investigate.  It was persuasively argued by Mr Coll BL that the respondent believed that the claimant had no difficulty with how they conducted the investigation.  If it is really the case that the Prison Service believe this, the Tribunal considers that the claimant made it plain by his conduct and the actions he took that he wanted the investigation to be carried out in a detailed and thorough fashion and the matter dealt with appropriately.  The Tribunal considers that it was obvious that the intention of the claimant was to invoke the harassment procedure and have it dealt with outside independently by Headquarters.  It was equally obvious to the Tribunal that the respondent did not want the matter to go outside Maghaberry.  This view is taken because the respondent did not even follow its own COCD procedure which requires Headquarters to be notified.  

39.	The actions taken by the claimant were as follows:-

(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.  

40.	The Tribunal considers that the claimant suffered an obvious detriment in that the failure to follow the harassment procedure meant that there was no separation and notwithstanding the adequate explanation given for failure to separate, it is still set out in the Harassment Procedure Guidance that ‘the parties must not continue to have working contact when a complaint has been made’.  Additionally, discussion was rife in the prison about the incident.  The Tribunal considers that it is more likely than not, on the balance of probabilities, that the Governor grades would have known that this was the case.  A prison is an enclosed community and the Tribunal considers that it is not unreasonable to suggest that news in such a setting travels fast.  This constant subjection of the claimant to hostility from Officer Cregan and from others in the Prison Service, led to his absence for illness.

41.	In reaching its decision the Tribunal have considered the case of Qureshi  v  London Borough of Newham [1991] IRLR264CA and in particularly the following guidance:-

“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.”

42.	Here there was certainly incompetence but it was exacerbated by a failure to follow the correct procedure (which failure was recognised with the ‘benefit of hindsight’ by Governor Maguire).  There was a failure to follow procedure generally – ie the failure to refer the fact of the investigation under the COCD procedure to Headquarters.  Governor McKee failed to follow procedure in the conduct of the investigation for the reasons set out above in the decision.  Taken in the round, this treatment was to the detriment of the claimant.  What is the use of having an Equal Opportunities Unit if when a claimant makes reference to it the Head of the Unit does not ask whether or not the claimant wants to make a complaint?  The Tribunal queries the purpose of having such a Unit when its staff do not participate actively in the area for which it is set up.  

43.	Did the respondent give an adequate explanation?

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.

44.	Assessment of compensation

1.	Injury to feelings

In reaching its decision under this heading the Tribunal has had regard to the case of Vento [2003] 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.

45.	The Tribunal considers that the date of conclusion of the investigation is the appropriate date from which to compute interest.  The rate is 8% per annum -

	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
										 £ 4,449.35

46.	Summary

Injury to feelings 					£  5,000.00
Psychiatric Injury					£  5,000.00
Interest 22 May 2001 - 12 December 2006 	£  4,449.35

							£14,449.35

47.	This is a relevant decision for the purposes of the Fair Employment Tribunal (Interest) Order (Northern Ireland) 1992.

Chairman:

Date and place of hearing:	25 - 29 September 2006, Belfast

Date decision recorded in register and issued to parties: