Court of Appeal in Northern Ireland Decisions

Due to a number of factors, which are referred to in the judgment of Nicholson LJ, there was very considerable delay in determining the outcome of the complaints based upon the 17/3 forms.

1. Did the Industrial Tribunal err in law in excluding evidence about the reason for which complaints were made to the respondent about the conduct of the appellants in connection with their involvement in previous proceedings against the respondent?

2. Did the Industrial Tribunal err in law in holding that the respondent was compelled to instigate a formal procedure to start an investigation of the events leading up to the complaints without hearing evidence to test the credibility of any of the allegations or the bona fides of those who made the complaints against the appellants?

3. Having held at paragraph 11 that the appellants had been subjected to potential discriminatory procedures because they had given evidence in the first appellant's previous Tribunal hearing, did the Industrial Tribunal err in law by rejecting their claims of unlawful discrimination by way of victimisation on the ground that any appropriate comparator would have been treated in the same way?

4. Did the Industrial Tribunal err in law, in the light of the burden of proof regulations, in holding that the appellants had not been discriminated against by way of victimisation?

5. Could any reasonable Industrial Tribunal on the evidence before it, both oral and documentary, and on the facts found, properly directing itself in law have reached the decision arrived at to dismiss the complaints of the appellants?

"In its ruling at the outset of this hearing the Tribunal stated that Mr McMichael's claim was against the respondent and not against Superintendent Laird and that it would look at the actions of the respondent in instigating a complaint against the applicant and the subsequent action of the respondent in the treatment of the applicant. This is what the Tribunal did at this hearing. It looked at the background to the complaints and the actions of the respondent in handling the complaints."

As can be seen from the papers the respondent was named as the Chief Constable of the PSNI.

At paragraph 12 of its decision the Tribunal stated:

"The Tribunal considered the originating applications in which the applicants were concerned about the instigation of disciplinary proceedings against them and any motive of victimisation must fall on the desk of Mr Beaney".

Events, which followed the service of the Form 17/3 on both the appellants, are set out in the judgment of Sir Michael Nicholson including the appointment of Assistant Chief Constable Beaney to carry out the investigation.

"The area of concern which the Tribunal considered in some detail was the issue that during the investigation the three complainants were kept informed about the delays and the applicants were not. Counsel for the applicants stressed that as no witness had been called for the respondents in relation to the letters written to Superintendent Laird, we should draw an inference from this failure and find that it was part of a pattern of victimisation against the applicants. It did appear to be an example of less favourable treatment of one group of people than another. There was a potential breach of a procedure here but when we examined the evidence it did not establish that the instigator of the complaint procedure, namely Mr Beaney, was involved."

Counsel for the appellants pointed out that while the Industrial Tribunal at paragraph 13 of the case stated referred to Article 63(a) of the Sex Discrimination (NI) Order 1976 [as inserted into the 1976 Order by the Sex Discrimination (Indirect Discrimination and Burden of Proof Regulations (NI) 2001], it made no reference thereto in its decision of 8^th December 2004 when it decided that the appellants had failed to prove that they were victimised by the respondent in being made the subject of an investigation procedure.

"It is common case at this stage that the respondent accepts that the applicant has done a protected act i.e. that he has given evidence or information in connection with Charlotte Cartwright's proceedings at a previous hearing. The applicant's claim is against the respondent, not against Superintendent Laird, and the tribunal has ruled that the case is against the respondent and it will look at the actions of the respondent in instigating a complaint against the applicant and the subsequent actions of the respondent in the treatment of the applicant. The tribunal has ruled that it will not admit evidence from the applicant's solicitor as to her version of evidence at a previous hearing. There was no transcript of a previous hearing and the tribunal is not in the position of making a decision based on the solicitor's record of the proceedings or of her record of cross examination of one of the respondent's witnesses at that previous hearing. Having made this ruling the applicants have sought an adjournment so that it can be judicially reviewed as they are both unwilling to proceed without the evidence as outlined by the applicant's counsel. The tribunal will consider the question of an adjournment on 21^st September."

On the following day, 21^st September 2004, the tribunal refused to consider the question of an adjournment stating that it ought to have been made on the previous day, which of course it had been.

"In its ruling at the outset of this hearing the tribunal stated that Mr McMichael's claim was against the respondent and not against Superintendent Laird and that it would look at the actions of the respondent in instigating a complaint against the applicant and the subsequent action of the respondent in the treatment of the applicant. This is what the tribunal did at this hearing. It looked at the background to the complaints and the actions of the respondent in handling the complaints."

"Although the appellants' complaints cite the Chief Constable as the sole respondent, complaints of discrimination against the employer as a matter of course include the employer's servants and agents. This ruling of the tribunal shifted the focus of the tribunal inquiry away from the substance of the appellants' complaints (did Mr Laird and some of his colleagues, notably Superintendent Kane, victimise the appellants by instigating [inciting, triggering] disciplinary complaints against them and dragging out the disciplinary investigation?) to a scrutiny of the decision making procedures followed by Assistant Chief Constable Beaney. The tribunal thus discounted the process that led up to Mr Beaney's decision, in particular the risks that the process had been tainted by discriminatory decisions, recommendations and reports before Mr Beaney was required to make any decision in regard to it.

Confident that the initial tribunal ruling had narrowed the scope of the appellants' claims in this way, the respondent felt less need to call as witnesses any of those officers who made complaints against the appellants: Superintendent Laird, Sergeant Shirlow, Sergeant Wilson. The appellants were never afforded the opportunity therefore to explore with the complainants in cross examination the declared reasons for their complaints, or to establish whether they were or were not well founded."

"Liability of Employers and Principals

42(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Order as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval."

"In or about December 1998 I initiated a complaint of unlawful discrimination on grounds of sex against my employer – Chief Constable of the RUC. That complaint was followed by three further complaints alleging discrimination on grounds of sex and by way of victimisation. By notice of report dated 19^th May 2000 I was informed that three complaints had been made against me by the Chief Constable of the RUC concerning evidence that had been adduced on my behalf at the Industrial Hearing into my complaints and concerning contact made with two witnesses in that connection also. I consider that each of the matters complained of was dealt with perfectly properly in the context of the legal proceedings in which I was then engaged. I consider that the decision to initiate formal complaints against me in relation to the three matters complained of amounts to unlawful discrimination by way of victimisation contrary to the Sex Discrimination (NI) Order 1976."

Constable McMichael in his application to the Industrial Tribunal stated his complaint as follows:

"On or about 19^th June 2000 I was served with a Form 17/3 Notification of Complaint in which it was alleged that I had given evidence at an Industrial Tribunal hearing and in so doing had compromised the security of another member of the Force and acted without authority from my superiors. I was subpoenaed to attend the Tribunal and when there gave evidence on oath to the best of my knowledge and ability. I consider that in so doing I acted entirely properly and appropriately and I consider that the decision now to serve me with a 17/3 amounts to unlawful discrimination by way of victimisation because I gave evidence in connection with a complaint of sex discrimination brought against the Chief Constable of the RUC."

At the hearing before the Industrial Tribunal in September/October 2004, Superintendent Laird and Sergeants Shirlow and Wilson were present, but they were not called to give evidence by counsel for the respondent, Mr Grant, in the light of the ruling made by the tribunal on 20^th September 2004. Their evidence was in my opinion highly relevant in relation to the complaints made by both appellants to the Industrial Tribunal as they questioned the bona fides of the original complaints made by Superintendent Laird and Sergeants Shirlow and Wilson that they felt that their security had been compromised by reason of the disclosure of some personal information about them to Ms Rosemary Connolly, solicitor for Constable Raymond McMichael.