THE FAIR EMPLOYMENT TRIBUNAL

CASE REF: 318/04FET

CLAIMANT:	Kevin Curley		

RESPONDENT:	1. Chief Constable of the Police Service of Northern Ireland
                                 2. D Brady
                                 3. P Breslin	

Certificate of Correction

Owing to a typing error at Paragraph 6(10)(c) of the Decision issued on 15 September 2009 the following two lines were omitted at the end of the sub-paragraph.

“……..ranking and given there were only four positions for Sergeant CPU the competition could have progressed.”

     

Chairman: _____________________________________

Date: _______________________________________________
FAIR EMPLOYMENT TRIBUNAL

CASE REF:  318/04FET

CLAIMANT:	Kevin Curley

RESPONDENTS:	1.  Chief Constable of the Police Service of Northern Ireland
	2.  D Brady
	3.  P Breslin

DECISION

The Fair Employment Tribunal finds that the claimant did not suffer discrimination on the grounds of religion and his claim is dismissed.

Constitution of Tribunal:
Chairman:	Mr B Greene

Members:	Mrs Carmel Lewis
		Mr Brian Collins

Appearances:
The claimant appeared in person.
The respondent was represented by Mr Nigel McComb, of counsel, instructed by the Crown Solicitors.

Sources of Evidence

1.	The Fair Employment Tribunal heard evidence from the claimant.  It also heard evidence, on behalf of the respondents, from the second and third respondents and Tabitha Ramsey.  The Tribunal also received 11 bundles of agreed documents amounting to 716 pages and two written submissions of 21 pages from the parties.

The Claim and the Defence

2.	The claimant claimed discrimination on the grounds of religion and victimisation. 

The claimant alleged that in a competition to rank candidates in order of merit for the position of sergeant in the Close Protection Unit (CPU) he came last despite having served in the Close Protection Unit whilst in Kosovo for 18 months and having completed a number of training courses whilst in Kosovo.

He further alleged that one of the assessors, the second respondent, was the husband of a police officer about whom he had made a complaint of sex discrimination when she secured a post of sergeant and the claimant did not.

The respondents deny the claimant’s allegations of discrimination on the grounds of religious belief and that the claimant was victimised.

The Issues

3.	The legal and main factual issues for determination in the case have been identified and agreed as follows:-

(1)	Did the respondents discriminate against the claimant on the grounds of his religion/political belief in his application for a non appointment to a post of sergeant in a CPU?

(2)	Was the claimant discriminated against on the grounds of his religion/political belief in the scoring of his application and/or in the competition process for CPU (sergeant) as against that of the other applicants?

(3)	Did Inspector Brady victimise and/or discriminate against the claimant in the claimant’s application for CPU (sergeant) by reason of any compliant the claimant had previously made in relation to Inspector Brady’s wife?

(4)	If the claimant was discriminated against on the grounds of his religion:-

(a)	What loss (if any) has the claimant sustained;

(b)	What injury to feelings (if any) has the claimant sustained?

(5)	If the claimant was not discriminated against on the grounds of his religion has the claimant acted unreasonably and/or vexatiously in the bringing of this claim?

Findings of Fact

4.	(1)	The claimant is a police officer since 20 July 1986 and remains a police officer.  

(2)	In April 2004 the first respondent conducted a competition for 45 different types of vacancies including positions for constables and sergeants in the Close Protection Unit (CPU).

(3)	The claimant applied with 12 others for the position of sergeant with the CPU.

(4)	The post of sergeant CPU was advertised in the vacancy bulletin 4/04 on the 24 March 2004.

(5)	The bulletin set out certain procedural requirements for the competition which, so far as relevant to this claim, are that:-

(a)	the application had to be on a self nomination form,

(b)	the format of the form should not be altered,

(c)	the font size should be no smaller than font size Arial 10,

(d)	the completed application form should reach Internal Selection and Promotion Resourcing Branch Police Service Northern Ireland Lisnasharragh,

(e)	the completed form should arrive not later than 5pm on the 7 April 2004.

(6)	The vacancy bulletin set out in bold type that the closing date and time for receipt of application forms would be strictly adhered to and there would not be any exceptions.  It also advised candidates that the onus was on them to ensure that the form was forwarded to the Internal Selection and Promotion Resourcing Branch Lisnasharragh by the closing date and time.

The vacancy bulletin also set out in capital letters that the format of the form should not be altered and that the font size should be no smaller than font size Arial 10.

(7)	The vacancy bulletin also advised applicants that further information on the competencies was to be found in General Order No. 11/2002 in the Police National Competency Framework.  The claimant never consulted this document.  

Applicants were also provided with a role profile which set out the key competencies required which were:- planning and organising; team working; effective communication; maximising potential; problem solving; personal responsibility; and resilience.

(8)	The procedures for the competition were covered by General Order No. 19/2001 and General Order No. 9/2003.  The 2001 Order stated at section 3 (2) that applications would only be accepted in the prescribed application form.  The 2003 Order at Section 9(3) required applicants to provide the name, position held and a telephone number for each person who can verify work examples provided in the application form.  

The claimant and candidate A6 did not comply with section 9(3).  The first respondent stated that while the 2001 Order was active it was not applied.

(9)	Thirteen applications for the post of sergeant in the CPU were received including the claimant’s.  The competition for the post of sergeant in the CPU was to rank the applicants in order of merit.  It was not designed to determine who was suitable or unsuitable or to pass or fail the candidates.

(10)	Once the candidates were ranked in order of merit this was passed onto Human Resources who would judge what candidates would proceed to the next stage of the assessment for the post of sergeant in CPU.  Eleven sergeants were picked to advance to the next stage of the assessment.  The claimant was ranked joint twelfth and was not picked.  Of the 13 applicants all were Protestant except the claimant.  There were only four vacancies for sergeants in CPU.

(11)	The assessment of the application forms was done by two Inspectors, Patrick Breslin and David Brady.  Mr Breslin’s perceived community background is Catholic and Mr Brady’s Protestant.  They were involved in doing the assessment for the constables’ and the sergeants’ posts with the CPU.  In total there were some 100 application forms.  The assessment of the application forms for both constables and sergeants took place between 26-30 April 2004.  The sergeants’ assessment took place on the 30 April 2004.

(12)	The competition for the CPU posts was controlled by the Internal Selection and Recruitment Section under the leadership of Gillian Faulkner.

	Initially an eligibility check was done on all the candidates.  All candidates passed the eligibility check.  It was designed to ensure the administrative requirements of the competition were satisfied.  Internal Selection and Recruitment Section also prepared the application forms for consideration by the assessment panel.  The application forms were anonymised before going to the panel of Messrs Breslin and Brady.  

(13)	Four of the application forms were accepted despite having had administrative deficiencies;-

(a)	The application forms of A5 (the claimant’s) and A6 did not identify the verifying officers required.  

(b)	Candidate A3’s form was accepted on 7 April 2004 even though the required recommendation by his line manager was not obtained until 9 April 2004 two days after the closing date.  

In addition, as is practice within the first respondent, when giving examples of the competencies one page is all that is acceptable.  Candidate A3 submitted two pages.  He was apparently contacted and as a result he resubmitted the same comments on the competencies, on one page but by using a font size that was not at least Arial font size 10.

	(c)	Candidate A6’s application form was stamped as having being received a day late.  In addition he did not identify and verify an officer in relation to his essential experience.  

He appeared to have a different form to all other candidates.  In part two of his form there was not an option for his line manager to comment that he was unsuitable as appeared in all the other forms.  In his form the line manager could only sign that he was satisfied that the officer meets the standard required for this role.

(d)	Candidate A11’s form is stamped as having been received two days late.  The font size is in breach of the requirements of the competition.  

The comments on competencies of this candidate, are not part of the original form and have been taken from somewhere else.  The original form was torn and joined together again with cellotape and these two pages were untorn.

(14)	The first respondent advanced as an explanation for accepting late applications that on 7 April 2004 so many applications were received that they could all not be stamped on 7 April 2004 and the remainder were stamped on the next day 8 April 2004.  

	The Tribunal is not persuaded by this explanation.  In so concluding the Tribunal had regard to the following matters;-

	(a)	The explanation could explain the form stamped one day late but not the form stamped two days late.

	(b)	The evidence for the first respondent was given by a witness who could not give any direct evidence of these matters.  She was not involved in the process at all and all her evidence was what others, who were not named, had told her.

	(c)	Whilst Gillian Faulkner, who was in charge of this competition, has left the employment of the first respondent no suggestion was advanced that she could not be a witness.

	(d)	Nor was there any suggestion that employees of the first respondent, who had provided the administrative work in the process, could not have been called to explain any difficulties encountered or the procedures followed.

(e)	There was not any evidence produced of the number of application forms received on 7 April 2004.

(15)	The assessors Messrs Breslin and Brady considered each of the applicants for the post of sergeant in the CPU under a number of headings i.e. competencies, desirable qualifications, essential experience and desirable experience.

(16)	The scoring matrix, provided by the first respondent’s Human Relations Department, permitted up to 98 marks for the competencies, 24 for the desirable qualifications, 8 for the essential experience and 14 for the desirable experience.  The assessors changed the scoring mechanism whereby they reduced the desirable qualification mark from a maximum of 24 to a maximum of 6 and the desirable experience from a maximum of 14 to a maximum of 8.  

(17)	They changed the desirable qualifications because they did not regard the particular qualifications sought as such an important part of the qualification desirable in a CPU sergeant.  They reduced the desirable experience from 14 to 8 because they felt it inappropriate that desirable experience should carry more marks than essential experience.  

(18)	The assessors then sought and obtained the agreement of Gillian Faulkner to these changes.  However the first respondent does not appear to have considered the implications of the changes in that it increased the proportion of marks attributable to the competencies from some 69% to 82% and reduced the proportion of marks attributable to the desirable experience from some 9% to 6.6%.  

(19)	The assessors made a further decision.  They considered the desirable experience was difficult to assess and therefore decided to award all candidates full marks for desirable experience.  The effect of this was to reward those with weak desirable experience and penalise those with good desirable experience.  Because no evaluation of the desirable experience was done as all candidates received full marks it is difficult to make any judgment as to what marks any particular candidate should have secured under this heading.

		The reduction in the marks for desirable qualifications assisted those who did not have any of the qualifications or none of them and penalised those who had all three.  As the claimant did not have any of the qualifications he secured zero marks and thus may have benefited by the reduction of the marking attributable to the desirable qualifications.

In relation to the competencies each candidate secured at least two marks for each competency whether that was filled in in a satisfactory fashion or not or not even filled in at all.  Each candidate got a minimum of 14 marks under the competencies heading.

(20)	The assessors were not concerned with the administrative element of the forms and assumed that all forms that came before them for assessment had satisfied the requirements of the administrative side of the assessment process.  

(21)	In the absence of any evidence to the contrary the Tribunal accepts that any changes to the marking system were done by the assessors before they had sight of any application forms for the sergeants’ CPU competition.

(22)	Mr Brady knew four of the candidates for the post of sergeant CPU.  However as the forms were anonymised there was not any persuasive evidence to suggest that he would have been able to identify any of the candidates from the information provided on the anonymised forms.

(23)	Mr Breslin did not know the claimant.  Mr Brady only knew of the claimant by repute.  A number of years earlier the claimant had worked with Mr Brady’s then girlfriend, now his wife, in Ballymena.  What he knew of him was positive in nature.  Mr Brady also indicated he knew the claimant to see having nodded to him in Lisnasharragh car park after this competition was concluded and after proceedings in this claim had been launched.  He was unable to offer any explanation as to how he knew the claimant by sight.

(24)	In the past the claimant had brought a claim to the Industrial Tribunal alleging sex discrimination following his failure to be appointed to a post of sergeant.  The complaint was made in respect of a promotion competition where the claimant alleged that Mr Brady’s then girlfriend’s score sheet had been changed in order that she would be promoted to the rank of sergeant.

Mr Brady denied all knowledge of the complaint by the claimant in relation to his then girlfriend or the Industrial Tribunal case.  He also asserted that his then girlfriend was ignorant of both as well.

(25)	The assessors in assessing the competencies, which carried most of the marks approached it in a strict fashion.  Many of the candidates failed to secure any marks beyond the 14 that were given to candidates automatically.  The strict approach to the assessment of the competencies was applied to a number of candidates.  Whilst the claimant did not fare well under this assessment neither did a number of the other candidates.

The Law

5.	(1)	It is unlawful to discriminate against another on the grounds of religion (Article 3(7) Fair Employment and Treatment (Northern Ireland) Order 1998).  

(2)	Discrimination on the grounds of religion is to treat someone less favourably than another on the ground of religion (Article 3(2)(a) Fair Employment and Treatment (Northern Ireland) Order 1998).
(3)	It is for the claimant who complains of discrimination on the grounds of religion to prove, on the balance of probabilities, facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part (III) or which by virtue of Article 35 or 36 of the Fair Employment and Treatment (Northern Ireland) Order 1998 is to be treated as having committed such an act of discrimination against the claimant (Article 38 Fair Employment and Treatment (Northern Ireland) Order 1998).
(4)	The Northern Ireland Court of Appeal McDonagh & Others –v- Samuel John Hamilton Thom t/a The Royal Hotel Dungannon [2007] NICA 3 stated that when considering claims of discrimination, Tribunals must have regard to the burden of proof.  The correct approach to the burden of proof in all discrimination claims is that set out in the Annex to the decision of the English Court of Appeal in Igen –v- Wong [2005] 3 All ER 812.

In the McDonagh case the Northern Ireland Court of Appeal recommended the Tribunals adhere closely to the guidance in Igen.

The guidance set out in the Annex to the Igen case is:-

“(1)  Pursuant to section 63 of the SDA it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part (II) or which by virtue of section 41 or section 42 of the SDA is to be treated as having been committed against the claimant.  These are referred to as ‘such facts’.

(2)	If the claimant does not prove such facts he or she will fail.

(3)	It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination.  Few employers would be prepared to admit such discrimination, even to themselves.  In some cases the discrimination will not be an intention but merely based on the assumption that ‘he or she would not have fitted in’.

(4)	In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.

(5)	It is important to note the word ‘could’ in section 63A (2).   At this stage the Tribunal does not have to reach a definitive conclusion that there was an act of unlawful discrimination.  At this stage a Tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

(6)	In considering what inferences or conclusions can be drawn from the primary facts, the Tribunal must assume that there is no adequate explanation for those facts.

(7)	These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s74 (2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within s74 (2) of the SDA.

(8)	Likewise, the Tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to section s56A(10) of the SDA.  This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

(9)	Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the grounds of sex, then the burden of proof moves to the respondent.

(10)	It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.

(11)	To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since ‘no discrimination whatsoever’ is compatible with the Burden of Proof Directive.

(12)	That requires a Tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.  

(13)	Since the facts necessary to prove an explanation would normally be in possession of the respondent, a Tribunal would normally expect cogent evidence to discharge that burden of proof.  In particular, the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.”

(5)	In the McDonagh case Kerr LCJ, as he then was, stated that the first question to be addressed is has the claimant proved, on the balance of probabilities, facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed the act of discrimination.  He went on to say;-

	“In addressing this question, it would be necessary for the judge to bear a number of ancillary matters in mind.  First, that it is unusual to find evidence of discrimination.  Secondly, that the conclusion on the preliminary issue will usually be a matter of inference to be drawn from the primary facts.  Thirdly, it must be clearly understood that the plaintiffs do not have to discharge a final burden, merely whether on the facts as found, it is possible to draw the inference of discrimination and finally it must be assumed at this stage that no adequate explanation for the discrimination exists.”

(6)	The application of the burden of proof was also considered in Madarassy –v- Nomura International PLC [2007] EWCA CIV 33.  In that case Mummery LJ, who gave the decision of the English Court of Appeal, stated in paragraph 52;- 
	
	“She [Madarassy] only has to prove facts from which the Tribunal “could” conclude that there has been unlawful discrimination by Nomura, in other words she has set up a “prima facie” case.”

	At paragraph 56 he stated:-

		“The court in Igen –v- Wong expressly rejected the argument that it was sufficient for the complainants simply to prove facts for which the Tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination.  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 has committed an unlawful act of discrimination.”

	The learned Lord Justice elaborated on “could conclude” at paragraphs 57 and 58:-

	“could conclude” in section 63 A(2) must mean that “a reasonable Tribunal could properly conclude” from all the evidence before it.  This will include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment.  It would also include evidence adduced by the respondent contesting the complaint.  Subject only to the statutory “absence of an adequate explanation” at this stage…., the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the claimant were of like with like as required by section 5(3) of the 1975 Act; and the available evidence of the reasons for the differential treatment.

	The absence of an adequate explanation for differential treatment of the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent.”

Further clarification was given by Mummery LJ at paragraph 71:-

	“Section 63A(2) does not expressly or impliedly prevent the Tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant’s evidence of discrimination.  The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the claimant or the situations with which the comparisons are made are not truly like the complainant or the situation of the complainant; or that even if there has been less favourable treatment of the complainant, it is not on the grounds of her sex or pregnancy.”

(7)	In the recent decision of the Court of Appeal in Kevin Curley –v- the Chief Constable of the Police Service of Northern Ireland and Superintendent Middleless [2009] NICA 8 Coghlin LJ commented further on shifting the burden of proof in discrimination claims and stated as follows;-

“However, this court would wish to emphasis the need for a Tribunal engaged in determining this type of case to keep firmly in mind the fact that the claim is founded upon an allegation of religious discrimination.  The need to retain such a focus is particularly important when considering the potential application of the provisions of Article 38 of the 1998 Order.”

	(8)	The Northern Ireland Court of Appeal in Nelson  v  Newry & Mourne District Council [2009] NICA 24 cited with approval the comments of Elias J in Laing  v  Manchester City [2006 IRLR 748 when he stated; 

			“74 The focus of the Tribunal analysis must at all times be the question whether or not they can properly and fairly infer race discrimination.  If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination that is the end of the matter.  It is not improper for a Tribunal to say in effect “there is a nice question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race.”

	(9)	To succeed in a claim for discrimination on the ground of religious belief a claimant must show that the respondent treated him less favourably than he treated or would treat other persons on the ground of religious belief.

	In comparing the cases of persons of different religious belief the relevant circumstances in the one must be the same or not materially different from the other.

	(10)	In Shamoon –v- Chief Constable of the RUC (HL) [2003] ICR 337  the House of Lords gave helpful guidance to Tribunals’ faced with the task of assessing whether a claimant has established the evidentiary ingredients to prove discrimination.  Lord Nicholls stated at page 342 paragraph 12;-

“The most convenient and appropriate way to tackle the issues arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case.  There will be cases were it is convenient to decide the less favourable issue first.”

(11)	In Nagarajan  -v- London Regional Transport [1999] ICR 877, 884  Lord Nicholls said;-

“…Treatment, favourable or unfavourable, is a consequence which follows from a decision.  Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming.  Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.” 

(12)	The less favourable treatment element may be established by reliance on an actual comparator or a hypothetical comparator.

(13)	The decided cases indicate that it is usual, in assessing whether discrimination has been proved on prescribed grounds, for Tribunals to rely on inferences and deductions from facts found because it is unusual for direct evidence of discrimination to be available.  

(14)	In RUC Chief Constable –v- A [2000] NI 261 at page 277a Carswell LCJ, as he then was, commented on discrimination of co-religionists in the following terms;-

“…This is on its face so extraordinary a proposition that one must look for some evidence to support it or some compelling evidence why it might be accepted…”

	(15)	In the Curley case Coghlin LJ referred to the Sergeant A case and to a statement made by Carswell LCJ at page 273:-

“[3] Discrepancies in evidence, weaknesses in procedures, poor record keeping, failure to follow established administrative processes or unsatisfactory explanations from an employer may all constitute material from which an inference of religious discrimination may legitimately be drawn.  But Tribunals should be on their guard against the tendency to assume that every such matter points towards a conclusion of religious discrimination especially where other evidence shows that such a conclusion is improbable on the facts.”

	(16)	Victimisation is to treat a person less favourably because he has:-

(a)	brought proceedings against another person under the The Fair Employment and Treatment Order or

(b)	given evidence or information in connection with such proceedings brought by any person or any investigation under the Fair Employment and Treatment Order, or

(c)	alleged that another person has contravened the Fair Employment and Treatment Order; or 

(d)	has done anything under or by reference to the Fair Employment and Treatment Order in relation to another person; or 

(e)	knows or suspects that another intends to do any of the above or suspects that another person has done or intends to do any of these things.

Application of the Law and Findings of Fact to the Issues

6.	(1)	The claimant alleges that the religious discrimination and victimisation against him were in relation to the ranking of candidates for a merit list for the position of sergeant in the CPU.

(2)	The discrimination is alleged to have been carried out at the administrative point in the recruitment competition and in the assessment by the assessors.

(3)	Much of the evidence focused on the deficiencies in the administration of the process. 

(4)	The Tribunal was not impressed by the first respondent’s handling of the administration of this recruitment competition.  In particular the Tribunal had regard to the following matters;-

(a)	On its own admission the first respondent failed to apply General Order No. 19/2001 Policy on Appointments, Promotions and Transfers which was in force during this recruitment competition. 

(b)	Having blandly stated that it did not apply General Order 19/2001 the first respondent failed to advance any reason, explanation or justification for not applying this General Order. 

(c)	The first respondent disregarded its own warning in bold type in the Vacancy Bulletin of 4/04;- 

“The closing date and time which applies to all vacancies advertised in this Vacancy Bulletin… will be strictly adhered to and no exceptions will apply.”

(d)	The reason advanced to explain the acceptance of late application forms i.e. that because of the volume of application forms they could not all be stamped on 7 April 2004 and the remainder were stamped the next day was itself unsatisfactory for a number of reasons;-

(i)	It did not explain accepting a form two days late.

(ii)	All the forms were not received on 7 April 2004.  There was not any evidence of quantity received on 7 April 2004.

(iii)	The first respondent decided for some reason, which it chose not to reveal to the Tribunal, to adduce all the evidence on the administration of the process and the difficulties encountered by an employee who was not involved in this recruitment exercise and whose evidence was based on what others involved in the process had told her.   

(iv)	There was not any suggestion to the Tribunal that those involved in the process or in charge of it could not have been called as witnesses.

(e)	The first respondent disregarded many of the other administrative directions in the Vacancy Bulletin e.g. not to alter the structure of the application form, the font size to be used, that forms should reach the named branch and accepting forms that had not been properly verified. 

(f)	The first respondent carried out a number of practices that concerned the Tribunal e.g. accepting a number of applications from individual candidates, some after the closing date; putting an application forward made up by Recruitment Branch from different versions of an application from the same candidate; speaking to candidates who submitted their answers on two pages where only one was acceptable and permitting the candidate to resubmit his application or that part of it on one page in breach of the font size direction.

(5)	The assessors made changes to the system of marking which was approved by Gillian Faulkner who oversaw the whole process.  No one seems to have considered the implications of the changes made.

The assessors advanced reasons for those changes which were not of themselves unreasonable.  The Tribunal is not persuaded that this was done for an unlawful discriminatory reason.  In so concluding the Tribunal had regard to the following matters;-

(a)	They made these changes before looking at any of the application forms.  No inroads were made on that evidence by the claimant.

(b)	The changes made affected a number of candidates e.g. three candidates, apart from the claimant, were disadvantaged by reducing the maximum mark for desirable qualification from 24 to 6 and the remaining candidates, including the claimant, who scored 0 under that heading benefited by that decision. 

(c)	Whilst an argument could be advanced that the reduction of the marks for desirable experience from 14 to 8 and the awarding of full marks (8) automatically to all candidates disadvantaged the claimant it is not possible to arrive at any firm conclusion on that point.  In so concluding the Tribunal had regard to the following matters;- 

(i)	As stated above this change was made before looking at any of the application forms.

(ii)	The reason advanced for the change that desirable experience is difficult to define and assess has some merit.

(iii)	As effectively no evaluation was done under this heading it is not possible to say whether the claimant should have gained a good mark or a poor mark.

(iv)	A number of other candidates may also have been affected by these decisions as well.

(6)	The assessors were subjected to close cross-examination on their scorings particularly of the competences which were central to the recruitment exercise and where most of the marks were to be gained or lost.  Based on their experience and training they took a strict line when assessing the evidence of the competencies in the context of looking for evidence to support the candidates.  Whilst their marking of the claimant’s answers on competencies was strict this strictness seemed to apply to all candidates. 

(7)	The claimant has clearly established a difference in status.  He is Catholic and the other 12 candidates were Protestant.

(8)	The claimant has also established a difference in treatment in that he alone of all the candidates did not progress to the next stage of the recruitment process.

(9)	In order that the burden shifts the claimant has to establish a prima facie case that the reason for the less favourable treatment is religion.  In deciding this the Tribunal has to bear a number of matters in mind which include that;-

(a)	Evidence of discrimination is rarely overt and is usually found by inferences from the primary facts.

(b)	Discrepancies in evidence, weaknesses in procedures, failure to follow administrative processes or unsatisfactory explanations may constitute material from which inferences of religious discrimination may be drawn but Tribunals should guard against the tendency to assume that every such matter points to religious discrimination.

(c)	The claim is founded upon an allegation of religious discrimination and a Tribunal needs to retain such a focus when considering the potential application of Article 38 of the 1998 Order.

(10)	The Tribunal does not shift the burden to the respondents to provide an explanation because it is not persuaded that the claimant’s treatment was on the ground of his religious belief.  In so concluding the Tribunal had regard to the following matters;- 

(a)	The administrative deficiencies were extensive and significant.  However they affected other candidates and not just the claimant.

(b)	If the purpose of disregarding the administrative directions was to keep the claimant from progressing in the competition it was unnecessary.  By applying General Order No. 9/2003 section 9(3) the first respondent could have excluded the claimant from the competition for failing to provide the name, position and telephone number of his verifying officers.

(c)	Had the four applications which did not comply with the administrative directions been excluded, including the claimant’s, nine other applications could have gone forward for ranking and given there were only four positions for Sergeant CPU the competition could have progressed.

(d)	The changing of the scoring matrix was done without regard to the candidates.   

(e)	The effect of the changes to the scoring matrix seemed to be random and there was not any persuasive evidence that the claimant alone, or mainly or significantly was affected by this in comparison with the other candidates.

(f)	The third respondent is a Catholic, by community background.  He denied knowing the claimant and no inroad was made in that evidence.  There was neither evidence to support, nor compelling evidence to cause it to be accepted, that he discriminated on the ground of religion against a co-religionist.  Nor was there any evidence that the third respondent, the chairman of the assessment panel and the senior police officer, was influenced by the second respondent to discriminate against the claimant on the ground of religion.

(g)	Whilst the second respondent had worked with four of the candidates there was not any persuasive evidence before the Tribunal that he knew that any of the four were candidates in this recruitment exercise or that he would have been able to deduce their identity from the anonymised application forms. 

(h)	There was not any evidence before the Tribunal of personnel within the administration of this competition or the HR department knowing the claimant.   

(i)	The claimant did not explore, nor was there any evidence before the Tribunal why 11 candidates were selected to go forward to the next stage of the process.  This is perhaps more significant, because the assessment was not to decide who was suitable or unsuitable or who passed or failed but rather to rank them in order of merit.  Someone else made the decision to advance 11 to the next stage.

(11)	The fact, that the claimant was the only Catholic out of 13 candidates; the second respondent was unable to explain how he knew the claimant by sight when he nodded to him in Lisnasharragh car park; and that there were a number of administrative deficiencies are not sufficient to enable the Tribunal to conclude that the claimant has established a prima facie case of religious discrimination and cause the Tribunal to shift the burden.

(12)	The Tribunal is also of the view that even if it had shifted the burden the respondents have provided an explanation not tainted by discrimination i.e. the responses the claimant provided in his application form and their evaluation explain his marking and his position on the merit list of candidates. 

That explanation is strengthened by reason of the claimant’s failure to consult the Police National Competency Framework which set out in detail the ingredients being looked for under each of the competency headings and which was specifically referred to in the Vacancy Bulletin 4/04.

(13)	There was not any persuasive evidence to support the claimant’s contention that he was victimised by the respondents by reason of previous claims given the second respondent’s ignorance of the claimant’s complaint about sex discrimination or having brought a claim for sex discrimination arising from the promotion of his then girlfriend.  The only previous claim or complaint, relied on by the claimant in support of his contention of victimisation, was in relation to a claim for sex discrimination.  It is doubtful whether a victimisation claim under the 1998 Order can be supported by a claim for a different type of discrimination.

(14)	Accordingly the claimant’s claims of discrimination on the ground of religion and victimisation are dismissed.

(15)	In view of the above findings and conclusions the Tribunal determines that in bringing this claim the claimant has not acted unreasonably or vexatiously. 

Chairman:

Date and place of hearing:	22, 23, 24, 25, 26, 29, 30 June, and 1 and 2 July 2009, Belfast.

Date decision recorded and issued to parties: