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Cite as: [2012] NICA 59
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| Neutral Citation No. [2012] NICA 59 | Ref: | HIG8545 |
| Judgment: approved by the Court for handing down | Delivered: | 29/6/2012 |
| (subject to editorial corrections)* |
BETWEEN:
Appellants;
Respondent.
HIGGINS LJ (giving the judgment of the court)
[1] This is an appeal by way of case stated from a decision of a Fair Employment Tribunal (the Tribunal), that the respondent had been discriminated against by way of victimisation, contrary to the provisions of the Fair Employment and Treatment (Northern Ireland) Order 1998 (the 1998 Order).
[2] In 1982 Eugene McNally (the respondent) commenced employment with the Northern Ireland Fire Brigade as a Retained Fire Officer. In 1989 he became a full time Fire Officer. The Northern Ireland Fire Brigade changed its name to the Northern Ireland Fire and Rescue Service (the Service). At the time relevant to this appeal Colin Lammey (the appellant) was a Chief Fire Officer. In 2000 the respondent was a leading Firefighter in the Service. In April of that year following a fire at McGeary's Mushrooms, Armagh (sometimes referred to as McGeary's Compost), a Sub-Officer made a complaint that the respondent failed to co-operate with instructions passed on from the Station Commander. The Station Commander and the Sub-Officer made a formal complaint against the respondent to the Area Commander. The Area Commander instructed the Divisional Officer to deal with the matter at Station level and to leave the respondent in no doubt what was expected of him. The Area Commander requested confirmation that this was carried out. In June 2000 the Divisional Officer informed the Area Commander that he had carried out his instructions. The Tribunal found that the Divisional Officer, now deceased, had not in fact carried out this instruction. In October 2006 the respondent tendered his resignation to the Service with effect from 9 October 2006. He stated his reason for doing so in the following terms –
"After discovering a long running plot by elements within the organisation to have me sacked from the service or at best impede my progress due to my perceived religious beliefs I feel my position within the service is no longer tenable."
[3] The respondent's resignation was not accepted. On 27 October 2006 he invoked a Grievance against the Service. It was in these terms –
"I believe that I have been subjected to a course of ongoing and continuing discrimination on the grounds of my religion/political opinion since 1996. I have only learnt of this discrimination having had a chance to review my personal file on 7 September 2006. This discrimination has included:
1. Unfounded allegations of fraud in 1996.
2. Insertion of inaccurate papers in relation to an incident at McGeary's Compost in April 2000.
3. Non-promotion to the post of Sub-Officer in September 2000.
I believe that my career development has been unlawfully hindered on religious grounds, and would ask that the NIFRS hear my grievance as soon as possible."
This grievance was not upheld. On 17 February 2007 the respondent lodged a lengthy internal appeal against that decision. This was heard by the Chief Fire Officer on 18 May 2007 and not upheld. It would appear from a Memo relating to the appeal, that the appeal related to large number of incidents from the early 1980s through to 2006. On 8 June 2007 the respondent lodged an appeal to the Northern Ireland Fire and Rescue Service Board (the Board) against the decision not to uphold his grievance. On 9 June 2007 he raised a number of further grievances principally relating to the manner in which his grievance of 27 October 2006 had been dealt with. A sub-committee was convened to hear the appeal to the Board. The appeal was heard by this sub-committee on 29 February and 22 May 2008. The appeal was not upheld. At the hearing of the appeal to the Board the response of the Service to the case made by the respondent was given orally by the Chief Fire Officer (Colin Lammey).
[4] On 2 March 2007 the respondent lodged a claim with the Tribunal (FET No 46/07) alleging discrimination on the grounds of "my perceived/actual religion/political opinion since at least 1982". On 28 September 2007 the respondent lodged a further claim with the Tribunal (FET No 139/07) in which he claimed that he had been discriminated against in the manner in which his grievances had been heard on the grounds of his perceived religious and political opinion. These claims preceded his appeal to the Board which was heard in February and May 2008.
[5] On 2 September 2008 the respondent lodged a third claim with the Tribunal (FET No 150/08) alleging victimisation. The claim was in these terms –
"During an appeal hearing to the Northern Ireland Fire and Rescue Service Board in relation to a grievance I raised with my employer in October 2006, the Chief Fire Officer unfairly victimised me by informing the panel that I had told blatent (sic) lies to the panel. There is no evidence whatsoever to substantiate this claim. He also made defamatory remarks abut my character which were totally unjustifiable and bore no relation to the matter of the hearing. At this hearing he also refused to give me a copy of the statement he read to the panel in which these remarks were made. When I requested an opertunity (sic) to respond to the comments made, this was refused to me despite me being informed before he made his presentation that I would be granted such an opertunity (sic)."
[6] At a pre-trial hearing before the Tribunal a number of the allegations made by the respondent in his first complaint to the Tribunal were struck out. Subsequently the Tribunal decided to hear all three claims together. A protracted hearing over many days then ensued during which numerous witnesses gave evidence and were cross-examined and various documents were considered. In a lengthy decision promulgated on 20 March 2009, the Tribunal found that the claims contained in FET Nos 46/07 and 137/07 (the first two claims lodged) were not well founded and were dismissed. However, the Tribunal found that the third claim of victimisation, contained in FET No 150/08 (relating to the remarks made by the Chief Fire Officer at the appeal hearing before the sub-committee), was well founded and adjourned the proceedings for a date to be fixed to consider remedies. It is against that decision in the victimisation claim that this appeal relates.
[7] It is necessary to refer to these decisions in some detail and how they are set out in the case stated in order to elucidate the approach of the Tribunal and how its decisions were reached. The Tribunal first considered the allegations made in the two principal claims of religious and political discrimination. At paragraph 38 it set out its findings of fact the first of which was –
"(1) The claimant comes from a Catholic community background. We know very little about his actual political views. He says that the alleged political discrimination which is the subject of these proceedings is discrimination on account of his perceived political opinions. He says that the perpetrators perceived him to be an Irish nationalist and/or a Republican."
[8] After considering the various alleged discriminatory incidents claimed by the respondent and rejecting them, the Tribunal turned to the allegation of victimisation discrimination arising from the appeal hearing before the sub-committee of the Board. At paragraph 11 sub-paragraph (84) the Tribunal summarised the case made by the respondent relating to victimisation.
"(84) The victimisation allegation is as follows. According to the claimant, when his internal grievance was heard by a sub-committee of the Board of the Service, Mr Lammey made unfair remarks and/or asserted that the claimant had made inaccurate statements (in the context of the grievance), and he did these things because the claimant has made the allegations of religious and/or political discrimination which are the subject-matters of Case 1 and/or Case 2. We consider that allegation to be factually well-founded."
[9] Mr Lammey was the Chief Fire Officer. On behalf of the Service he responded to and sought to refute the claims of discrimination made by the respondent against the Service and his colleagues. His remarks before the sub-committee had previously been reduced to writing. The Tribunal found that in addition to responding to the claims made by the respondent the Chief Fire Officer had included certain 'additional commentary'. The Tribunal set out the relevant parts of this 'commentary' at paragraph 85 and following.
"Mr McNally went to considerable lengths at the previous Hearing, to describe in great detail a number of incidents going back over 25 years. He has been attempting to link these statements to prove, in his own words, that there has been an orchestrated campaign of sectarian harassment and discrimination against him since he joined Northern Ireland Fire & Rescue Service in 1982.
As you would expect as the Chief Officer of the day, I totally reject Mr McNally's allegations against Northern Ireland Fire Brigade and now Northern Ireland Fire & Rescue Service. Some of the statements made by Mr McNally at the previous Hearing were blatantly untrue and verging on slanderous against some of the Officers involved.
As you found out towards the end of the previous Hearing, this case has been taken by Mr McNally onwards to a Fair Employment Tribunal. NIFRS Officers and myself have been at pains to treat this matter as the culmination of an internal grievance but, as you are now aware, no matter what decision you come to today, this case now remains at a Fair Employment Tribunal and is in the hands of NIFRS Solicitors. Although I understand that in recent days the LRA have been involved to try to broker a compromise to the case.
In or around 1994, Mr McNally told Members about a social function outside of work which resulted in him being convicted of common assault. Despite Mr McNally's long-winded explanation for his behaviour during this incident, the simple facts remain stark. He was convicted of common assault in a court of law and it is my opinion that he was lucky not to have been dismissed from the Fire Service; as it was, he was issued with a Final Written Warning.
Fire-fighters being convicted of assault are not an every day occurrence in our organisation and I can understand the thinking of Officers in those days, in that they were obviously keeping a close eye on Mr McNally.
We now turn to the incident at Saracens in Lurgan. Records show that Divisional Officer Peter Craig, now Assistant Chief Fire Officer Craig, appointed Divisional Officer Eoin Doyle, now Area Commander Doyle, to investigate allegations that Mr McNally had made deliberate and false overtime claims. This was fully investigated under the Fire Service Discipline Regulations at the time. Mr McNally makes the allegation that Peter Craig deliberately planned the entire episode and made it up in an attempt to harass or discriminate against him. When I look at the calibre of Officers involved in this investigation -Assistant Chief Officer Craig, Divisional Officer Walter Johnston and most importantly Area Commander Doyle - I find Mr McNally's allegations absolutely preposterous. In particular the 3 Officers are of the highest calibre, never mind the fact that Eoin Doyle is himself a Roman Catholic. Why would he want to discriminate against Mr McNally?
I don't propose to reopen this issue again, save to say that this is another blatant attempt to open up an incident that is now closed and make further allegations against NIFRS Officers, namely – Assistant Divisional Officer Paul Smith, Station Officer John Wilson, Station Officer Maurice Rafferty (also a Roman Catholic Officer) and Mrs Hilary Mawhinney in the Human Resources Department. Members, these are all Officers of the highest integrity who we all know very well; that is why, as Mr McNally's story continues, it becomes more and more incredulous and unbelievable.
To conclude Members, Mr McNally embarked upon this Grievance after he saw a note on the computer system in Portadown. He has sought to link a series of incidents, some of them obviously only in his own mind going back over 25 years. He has sought to link all of these incidents in some way to make serious allegations against Northern Ireland Fire & Rescue Service. More importantly Members, he has sought to [impugn] and make out to be liars a series of very Senior Officers within Northern Ireland Fire Brigade and Northern Ireland Fire & Rescue Service: Uniformed Officers, Non-Uniformed Officers, Protestant Officers and Roman Catholic Officers. He seeks to use all of his wild allegations to attempt to prove that there has been a 25 year campaign against him because of his religion.
What we have to remember Members – is this an individual who is fond of lifting his fists when he doesn't get his way, has been found guilty in a court of law of assault and obviously has come to the attention of Officers over the years.
I find his allegations preposterous and I would suggest that the only thing that you can do is not to uphold his Grievance. Obviously, he will have another day to air all of this when we get to the Fair Employment Tribunal."
[10] At paragraph 11 of the Case Stated the Tribunal set out its findings in 98 sub-paragraphs. (I shall refer to these sub-paragraphs in brackets). The Tribunal found that while the Chief Fire Officer was "conscientious and serious-minded" he had erred in making these comments – see sub-paragraph (91). The Tribunal stated at sub-paragraph (90) that the first objectionable aspect of his remarks was that he was implicitly inviting the sub-committee of the Board not to engage with the discrimination allegations as the matter would ultimately be determined by the Tribunal, to which the respondent had already lodged two claims. The Tribunal commented that the Service could not sub-contract the resolution of internal grievances to the Tribunal but was itself obliged to deal with them. At sub-paragraph (93) the Tribunal commented –
"No doubt, if a Senior Officer of the Service believes relevant allegations to be erroneous, there is a natural tendency to be irritated. However, it is precisely because of that natural tendency that the law, through the victimisation discrimination provisions of the 1998 Order, protects complainants, even misguided complainants, against retaliation."
The Tribunal then stated that the Chief Fire Officer was entitled to draw attention to the implausibility of some of the respondent's allegations and to do so in robust terms (94). However it went on to state at sub-paragraphs 95 and following, its views on the appellant's comments to the sub-committee -
"(95) However, we consider that, in various respects, the Lammey statement reeks of anger and retaliation. First, the strong implication from various parts of the statement is that Mr Lammey is angry because the claimant has made allegations of religious discrimination against decent and honest people:-
(a) According to the statement, the allegations are 'blatantly untrue' and 'verging on slanderous'.
(b) The claimant has sought to ' ... make out to be liars a series of very Senior Officers ... '.
(c) He has made '... wild allegations' ... .
(96) Secondly, the statement gratuitously refers to, and dwells upon, an act of indiscipline which the claimant carried out 14 years before the date of the statement. In our view, this was a gratuitous reference, designed to humiliate the claimant.
(97) Mr Lammey clearly regarded the allegations as an affront to the entire Service. In the statement, he refers to the first of the claimant's religious/political discrimination allegations in the following terms:-
'Mr McNally started his catalogue of allegations against us all when, as a Retained Fire-fighter in Banbridge, he alleged that ... ." [our emphasis]
(98) In our view, for those reasons, and against that background, the statement constitutes unreasonable treatment of the claimant. It seems to us to go far beyond the taking of 'honest and reasonable' steps in connection with proceedings or allegations. (See paragraph 39 above.) In order to convince the Board Sub-committee that the claimant's allegations were not well-founded, it was unnecessary for Mr Lammey to castigate the claimant for making the allegations; or for him to refer, in humiliating terms, to the claimant's disciplinary offence of so many years beforehand.
(99) In the interest of readability, and with a view to avoiding needless duplication, we have set out some additional findings of fact elsewhere in this decision."
[11] From these paragraphs it can be ascertained that the Tribunal considered that the Chief Fire Officer had in his remarks before the sub-committee of the Board, gone beyond taking 'honest and reasonable steps' to defend the Service and its officers in response to the serious allegations made by the respondent. The Tribunal considered that it was not necessary for the Chief Fire Officer to 'castigate' the respondent for making his allegations or to refer in 'humiliating terms' to his old disciplinary offence.
[12] At paragraph [13] of the case stated the Tribunal set out further findings from their original decision. These may be summarised as –
"(17) The claimant was sharply criticised and humiliated by the comments of the appellant before the sub-committee of the Board. This amounted to gratuitous treatment and an employee could regard it as detrimental and that he was disadvantaged in the circumstances in which he would thereafter have to work.
(18) The appellant was annoyed at the allegations of religious and political bias raised by the respondent and this was an important reason for his detrimental treatment of him.
(19) The respondent would not have been subjected to this relevant mistreatment if he had raised less controversial grievances.
(22) The Tribunal was satisfied that the making of the respondent's allegations (in Case 1 and 2) was an important reason for the relevant treatment."
[13] In paragraph [18] of the Case Stated the Tribunal set out, in a series of sub-paragraphs, its conclusions as to the applicable legal principles which guided their decision. At (1) they referred to Shamoon v Chief Constable of the RUC as authority for the proposition that 'a detriment, in Article 19 of the 1998 Order, would exist if a reasonable worker would or might take the view that he had been disadvantaged in the circumstances in which he had thereafter to work, by reason of the act of which he complained. At (2) the Tribunal recognised that an unjustified sense of grievance felt by an employee could not amount to a detriment. Relying on Derbyshire v St Helen's Metropolitan Borough Council [2007] 3 AER 81 the Tribunal stated that steps honestly and reasonably taken by an employer in defence of employment tribunal proceedings, would not amount to unreasonable detrimental treatment. At (3) the Tribunal referred to British Medical Association v Chaudhary [2007] IRLR 800 and a statement of Mummery LJ that Derbyshire reaffirmed the law that a person does not discriminate if he takes the impugned decision in order to protect himself in litigation. The Tribunal concluded that an employer who took reasonable steps to protect himself in litigation would not unlawfully discriminate against an employee. This was because such steps would not constitute detrimental treatment or be retaliatory.
[14] The Tribunal then considered the law relating to victimisation discrimination. In sub-paragraph 4 it identified two elements that required to be satisfied in this case. Firstly, that there must be less favourable treatment of the respondent by comparison with the appropriate statutory comparator (in this instance identified as an employee who had not brought proceedings against the Service under the 1998 Order). Secondly, that the prohibited ground (identified as the carrying out of a protected act) need not be the main ground for the treatment complained of, provided it is a substantial or effective cause or an important or significant factor (relying on Igen Ltd v Wong [2005] IRLR 258). At (8) it noted that Khan v Chief Constable of West Yorkshire Police [2001] ICR 1065 was authority for the proposition that the appropriate comparator was an employee who had not done the protected act. At (11) the Tribunal noted the remarks of Lord Nicholl in Shamoon to the effect that employment tribunals should avoid disputes about the identification of appropriate comparators and concentrate on the question why the claimant was treated as he was. At (12) they noted that less favourable treatment could not be demonstrated by evidence of unreasonable behaviour alone but at (13) noted that the unreasonableness of the treatment complained of was a relevant factor in deciding what inferences could be drawn as to whether the treatment was on a proscribed ground or for a proscribed reason (Bahl v Law Society [2004] IRLR 799). At (14) – (16) they stated that an alleged perpetrator discriminates by way of victimisation discrimination against a claimant if he treats the claimant less favourably that he treats or would treat the appropriate statutory comparator and does so for a reason mentioned in Article 3(5) of the Order. At (17) they stated that a claimant was not protected under the 1998 Order if the allegations made by him were false and not made in good faith and noted that this had not been suggested by the Service or the appellant. The Tribunal then referred to Articles 11 of the EU Employment Framework Directive 2000 (the Directive) which makes provision for protection of employees against victimisation where the employee has made a complaint. Article 11 provides –
"Member States shall introduce into their national legal systems such measures as are necessary to protect employees against dismissal or other adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment."
[15] In sub-paragraphs (18) – (24) the Tribunal considered the issue of the burden of proof. First they referred to Article 10 of the Directive which provides –
"Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment."
At sub-paragraph (19) they noted that it was not suggested that Article 10 did not apply to victimisation discrimination. Implementation of the Directive was achieved by various amendments to the 1998 Order including Article 38A which provides –
"Where, on the hearing of a complaint under Article 38A, the complainant proves facts from which the Tribunal could, apart from the 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 complainant, or
(b) is by virtue of Article 35A or 36 to be treated as having committed such an act of discrimination or harassment against the complainant,
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."
At sub-paragraph (22) the Tribunal commented that it adopted and applied the legal principles in relation to the burden of proof as analysed in Moore v Food Safety Protection Board (29/04 FET). At sub-paragraph (23) the Tribunal referred to the decision of the Court of Appeal in Arthur v Northern Ireland Housing Executive [2007] NICA 25 and observed –
"(23) As was pointed out by the Northern Ireland Court of Appeal in Arthur v Northern Ireland Housing Executive 2007 NICA 25, at paragraph 31, the burden of proof provisions envisage a two-stage process, the first stage involving a requirement for the claimant to prove facts from which a tribunal could reasonably conclude, in the absence of an adequate explanation, that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the claimant (At that first stage, it is to be assumed that there is no adequate explanation). If the claimant satisfied all those first stage requirements (if he proves the relevant facts), the burden of proof shifts to the respondent to prove that there has been no breach of the principle of equal treatment."
[16] At paragraphs [19] the Tribunal set out their conclusions having applied the principles referred to above. So far as relevant to the issues of victimisation discrimination these were -
"(16) The complaint of victimisation discrimination is well-founded, for the following reasons, and against the following background.
(17) The claimant was sharply criticised and was humiliated in front of a sub-committee of the Board of the Service (the highest authority within the Service). That treatment was gratuitous, in that it served no useful purpose. It was detrimental treatment, in the sense that an employee, who suffered such treatment, could reasonably conclude that he had thereby been disadvantaged in the circumstances in which he would thereafter have to work. (See paragraph 39 above).
(18) We are satisfied that Mr Lammey's annoyance at the fact that the claimant had raised the allegations of religious and political bias was an important reason for that detrimental treatment.
(19) We are satisfied that, if the claimant had not raised allegations of religious or political bias, but instead had raised less controversial grievances, he would not have been subjected to the relevant mistreatment.
(20) In arriving at all of the conclusions which we have set out above, we have been mindful of the effect of the burden of proof provisions.
(21) In the context of the religious and political discrimination allegations, in each instance, we were satisfied, on the balance of probabilities, that the relevant actions of the alleged perpetrators were in no way affected by any religious or political bias.
(22) In the context of the victimisation discrimination claim, we were satisfied, on the balance of probabilities, having considered all the evidence (including evidence given by way of explanation), that the making of the claimant's allegations (in Case 1 and 2) was an important reason for the relevant treatment."
[17] It is clear from these reasons that the Tribunal found the respondent was discriminated against (by way of victimisation) because the statement addressed to the sub-committee of the Board on the occasion of the hearing of the grievance appeal, was sharply critical of the respondent in language which was gratuitous and which humiliated the respondent before the sub-committee, that an important reason for the making of the statement was the Chief Fire Officer's annoyance at the respondent's allegations of religious and political bias and that the statement was treatment of the respondent which was to the respondent's detriment in the sense that he could reasonably conclude that he had by reason of it been disadvantaged in the circumstances in which he would later have to work. Mindful of the effect of the burden of proof provision the Tribunal found that the respondent had been subjected to victimisation discrimination.
[18] The appellant requested the Tribunal to state a case for the opinion of the Court of Appeal on the following question.
"On the facts and evidence before it, both oral and documentary, did the Tribunal err in law and reach a decision which no reasonable tribunal could have reached in holding that the claimant had been unlawfully victimized by Mr Lammey in the course of the internal grievance, contrary to the provisions of the Fair Employment and Treatment (Northern Ireland) 1998."
[19] It was submitted by Mr O'Hara QC who, with Mr McEvoy, appeared on behalf of the appellant, that the allegations ultimately made by the respondent went back to the commencement of his employment with the Service in 1982. His grievance complaint in 2006 related to incidents from 1996. It was only later that the full extent of his complaints became known, namely that a vendetta or organised and sustained campaign had been waged against him throughout his employment with the Service. It was in defence of the Service against those complaints that the Chief Fire Officer made his statement to the sub-committee of the Board. It was accepted that in doing so he was trenchant in his defence of the Service and in his criticisms of the respondent. It was noteworthy that almost all of the respondent's allegations were rejected, in particular the allegations of religious and political discrimination. It was submitted that the findings of the Tribunal on the main issues supported the contention that the respondent was more than willing to make 'wild allegations' against fellow officers of all ranks and religions in the Service in order to maintain his case that he was, over many years, the subject of discrimination. Mr O'Hara QC submitted that some of the findings of the Tribunal could not be maintained. In particular there was no basis for the finding at paragraph 90 that the Chief Fire Officer was implicitly inviting the sub-committee not to deal with the allegations of discrimination on the basis that they would end up in the Tribunal. In paragraph 95 the Tribunal found that the statement of the Chief Fire Officer 'reeks of anger and retaliation' and that he was angry because the respondent made allegations of discrimination against decent and honest fellow employees. It should be noted that the Tribunal itself found that the respondent had made unfounded allegations of religious and political discrimination against fellow officers some of whom were co-religionists. It was submitted that the finding at paragraph 96 that the reference to the respondent's conviction for assault being gratuitous was irrational. The respondent had made allegations questioning the honesty and integrity of fellow officers and in those circumstances his conviction of this offence and that it led to a final written warning from the Service, was clearly relevant. The respondent's unfounded allegations against a number of officers of different ranks were an affront to the Service and the Chief Fire Officer was entitled, if not obligated, to respond in robust terms. He might have done so in more diplomatic language but was not obliged to observe such niceties. Furthermore it was submitted that there was no basis for the finding at paragraph 40(19) that if the respondent had raised less controversial grievances (other than religious and political discrimination) he would not have been subjected to the response made by the Chief Fire Officer. Mr O'Hara QC questioned how this amounted to victimisation or humiliation when his allegations of religious and political discrimination were rejected. He could have no justifiable sense of grievance when the Tribunal found his allegations unfounded. Significantly the Tribunal had not identified any detriment suffered by the respondent but assumed there was detriment from the remarks made by the Chief Fire Officer. It was submitted that no reasonable Tribunal, having properly directed itself on the applicable law, could have reached the decision that the respondent had been discriminated against by victimisation within the terms of the 1998 Order.
[20] It was submitted by Mr Potter, who appeared on behalf of the respondent, that the Tribunal had correctly directed itself on the applicable law and that its findings of fact could only be overturned if it had reached a conclusion which no reasonable tribunal would have reached. It was submitted that the remarks of the Chief Fire Officer went beyond a reasonable and permissible defence put forward by and on behalf of the Service and that the Tribunal's interpretation of the comments made could not be faulted. The key issue was the reference to the conviction for assault and the allegation that the respondent regularly used his fists. This was distressing to the respondent. In going beyond the bounds of an honest and reasonable defence the Chief Fire Officer had caused a detriment to the respondent. He was not obliged to comment in the manner and terms in which he did. The Tribunal had found, correctly, that the remarks were made as a result of the respondent's complaints to the Fair Employment Tribunal and that the appropriate comparator was an employee who had not brought proceedings against the Service.
[21] The Fair Employment and Treatment (Northern Ireland) Order 1998 (the Order) repeals and re-enacts the Fair Employment (Northern Ireland) Act 1976 and the Fair Employment (Northern Ireland) Act 1989, with amendments. Part III of the Order makes it unlawful to discriminate against applicants and workers in the field of employment. Article 19 provides, inter alia, -
"19(1) It is unlawful for an employer to discriminate against a person, in relation to employment in Northern Ireland, -
……………
(b) where that person is employed by him –
(i) in the terms of employment which he affords to him; or
(ii) in the way in which he affords him access to benefits or by refusing or deliberately omitting to afford him access to them; or
(iii) by dismissing him or by subjecting him to any other detriment."
Article 2(2) provides that 'discrimination' and 'discriminate' are to be construed in accordance with Article 3 which provides –
"3. - (1) In this Order "discrimination" means-
(a) discrimination on the ground of religious belief or political opinion; or
(b) discrimination by way of victimisation; and "discriminate" shall be construed accordingly.
(2) A person discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of a provision of this Order, other than a provision to which paragraph (2A) applies, if-
(a) on either of those grounds he treats that other less favourably than he treats or would treat other persons; or
(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same religious belief or political opinion as that other but-
(i) which is such that the proportion of persons of the same religious belief or of the same political opinion as that other who can comply with it is considerably smaller than the proportion of persons not of that religious belief or, as the case requires, not of that political opinion who can comply with it; and
(ii) which he cannot show to be justifiable irrespective of the religious belief or political opinion of the person to whom it is applied; and
(iii) which is to the detriment of that other because he cannot comply with it.
2A. - A person also discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of any provision referred to in paragraph (2B) if-
(a) on either of those grounds he treats that other less favourably than he treats or would treat other persons; or
(b) he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same religious belief or political opinion as that other but-
(i) which puts or would put persons of the same religious belief or of the same political opinion as that other at a particular disadvantage when compared with other persons;
(ii) which puts that other at that disadvantage; and
(iii) which he cannot show to be a proportionate means of achieving a legitimate aim.
2B. - The provisions mentioned in paragraph (2A) are-
(a) Part III;
(b) Article 27, so far as it applies to vocational training or vocational guidance;
(c) Article 32; and
(d) Part V, in its application to the provisions referred to in sub-paragraphs (a) to (c).
(3) A comparison of the cases of persons of different religious belief or political opinion under paragraph (2) or (2A) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.
(4) A person ("A") discriminates by way of victimisation against another person ("B") in any circumstances relevant for the purposes of this Order if-
(a) he treats B less favourably than he treats or would treat other persons in those circumstances; and
(b) he does so for a reason mentioned in paragraph (5).
(5) The reasons are that-
(a) B has-
(i) brought proceedings against A or any other person under this Order; or
(ii) given evidence or information in connection with such proceedings brought by any person or any investigation under this Order; or
(iii) alleged that A or any other person has (whether or not the allegation so states) contravened this Order; or
(iv) otherwise done anything under or by reference to this Order in relation to A or any other person; or
(b) A knows that B intends to do any of those things or suspects that B has done, or intends to do, any of those things.
(6) Paragraph (4) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.
(7) For the purposes of this Order a person commits unlawful discrimination against another if-
(a) he does an act other than an act of harassment in relation to that other which is unlawful by virtue of any provision of Part III or IV; or
(b) he is treated by virtue of any provision of Part V as doing such an act."
[22] It is unlawful in Northern Ireland to discriminate, in the field of employment, against a person on grounds of religious belief or political opinion or by way of victimisation. The provisions making discrimination on grounds of religious belief or political opinion unlawful are unique to Northern Ireland within the employment law of the United Kingdom. The provisions making discrimination by way of victimisation unlawful mirror other UK-wide legislative provisions making discrimination on grounds of sexual orientation or race or victimisation for such, unlawful. For the purpose of the 1998 Order victimisation is another form of discrimination. Article 19(1)(b) of the Order makes it unlawful for an employer to discriminate against a person employed by him (whether on grounds of religious belief, political opinion or by way of victimisation) in the terms of employment or benefits afforded to the employee, by dismissing him or by subjecting him to any other detriment. Detriment is not defined. Article 3 defines discrimination and discrimination by way of victimisation. For the purposes of this appeal the latter occurs where an employer, in any circumstances relevant for the purposes of the Order, treats an employee less favourably than he treats or would treat other employees and does so for the reason, inter alia, that the employee has brought proceedings against the employer. The respondent's complaint related to the 'comments' made by the Chief Fire Officer before the sub-committee, which was an appeal in respect of internal grievances raised against the Service and individual Service officers.
[23] The primary object of the victimisation provisions is to ensure that employees who have taken steps to exercise their statutory rights under the 1998 Order are not penalised for doing so (see Lord Nicholls in Khan v Chief Constable of West Yorkshire Police [2001] UKHL 48 at paragraph 16). Article 3(1) defines discrimination as discrimination on the ground of religious belief or political opinion or by way of victimisation. Article 3(4) provides that a person discriminates by way of victimisation against another in any circumstances relevant for the purposes of the 1998 Order if he treats him less favourably than he treats or would treat another person in those circumstances and does so for one of the reasons mentioned in Article 3(5). The circumstances relevant for the purposes of the 1998 Order include, inter alia, combating discrimination in the field of employment and education, as well as in the provision of goods, services and premises. The test for victimisation discrimination also requires that the perpetrator treats the employee less favourably for one of the reasons mentioned in Article 3(5). The reasons mentioned in Article 3(5) are collectively referred to as the protected acts. In other words if an employee has taken one of the acts mentioned in Article 3(5) he is protected against discrimination because he has carried out that act. The relevant act in the context of this appeal is Article 5(a) – that the respondent has brought proceedings under the 1998 Order against his employer, the Service, namely his claims of religious and political discrimination, lodged with the Tribunal on 2 March 2007 and 28 September 2007. Thus the question for the Tribunal was whether the respondent was treated less favourably (if he was so treated) because he had brought the proceedings under the 1998 Order claiming religious and political discrimination against his employer. The protection against victimisation is in relation to those proceedings and their continuance, not just the commencement of the proceedings. However the protection afforded by the Order does not extend to allegations made by an employee which are false and not made in good faith - see Article 3(6). False allegations made in good faith remain protected, but an employer could not rely on the restriction contained in Article 3(6) of the Order, in the absence of a positive finding that the allegations were not made in good faith.
[24] The circumstances giving rise to the claim of victimisation discrimination were the remarks made by the Chief Fire Officer before the sub-committee of the Board, which have been set out at paragraph 9 above. At paragraph 19(22) of the case stated the Tribunal found on the balance of probabilities that an important reason for the victimisation of the respondent was the fact that the respondent had made allegations in support of his first two claims relating to religious and political discrimination. This finding must be an inference from the surrounding circumstances. A question arises as to whether it was a reasonable inference to draw. At paragraph 19(17) the Tribunal identify the treatment to which they found the respondent to have been subjected, namely that he was sharply criticised and humiliated. They find that treatment served no useful purpose. The Tribunal does not appear to have considered that statement in the context of the serious allegations made by the respondent, which they had dismissed as untrue. The Tribunal found that the statement, implicitly, was an invitation to the sub-committee not to engage with the allegations. Read as a whole it is difficult to discern such an invitation, explicit or implicit. Rather it is a very strong refutation of the allegations against the Service and various officers and made by the Chief Fire Officer, a fellow serviceman. The Tribunal found the statement "reeks of anger and retaliation". They identify three matters which support that finding. It is difficult to identify that it reeks of anger and retaliation. The first matter was that the Chief Fire Officer said that the allegations were "blatantly untrue" and "verging on slanderous". Was this not true, when one considers the nature of the serious allegations? The Tribunal found the reference to the assault charge as gratuitous and designed to humiliate the respondent. The assault charge was true and the sub-committee were entitled to know the character of the person making these serious allegations. The fact that it was 14 years ago may lead, on one view, to the matter being somewhat stale, but it has to be remembered that the allegations made by the respondent were going back even before that time. Furthermore it would appear that it was the respondent who first raised the assault incident during the course of his long history of events and the appellant was emphasising the fact that the respondent was fortunate not to have been dismissed as being inconsistent with his conspiracy allegations. The Tribunal found this statement amounted to unreasonable treatment. A fair reading of the entire statement does not bear out the conclusions reached by the Tribunal about it. While the Tribunal heard evidence from both the appellant and the respondent, the statement speaks for itself and this Court is in as good a position as the Tribunal to judge the nature of its contents. It is clear that the Tribunal concluded that the Chief Fire Officer was angry about the respondent's allegations. Considering they were untrue was he not justified in defending the Service and his fellow officers and doing so in robust terms. The respondent exposed himself to this by bringing allegations that the Tribunal found to be unfounded. We do not consider that a Tribunal properly directing itself could reasonably come to the conclusion that the statement of the Chief Fire Officer constituted unreasonable treatment of the respondent nor do we consider that it went beyond the taking of honest and reasonable steps in defence of the false claims.
[25] At paragraph 19(17) of the case stated the Tribunal found that the treatment was a detriment because an employee who suffered it could "reasonably conclude that he had thereby been disadvantaged in the circumstances in which he would thereafter have to work". The finding was not that the respondent so concluded. It is difficult to see how the Tribunal could reach the conclusion that the respondent could reasonably believe that his standing among his colleagues would be reduced as a consequence of the appellant taking honest and reasonable, albeit robust, steps to refute a catalogue of allegations against his fellow officers which were completely unfounded or that he would be disadvantaged in carrying out his work as a fireman. The phrase used by the Tribunal and set out above is in similar terms to that used by May LJ in De Souza v Automobile Association [1986] ICR 514 at 522G (and referred to by Lord Hope in Shamoon at paragraph 34). In De Souza the employee who was a coloured woman alleged that she overheard one of her managers refer to her as "the Wog". She brought a claim of unlawful racial discrimination alleging that the expression was a racial insult which constituted a detriment. Her complaint was dismissed and she appealed. Dismissing the appeal it was held that the expression "some other detriment" was not limited to circumstances akin to dismissal, disciplinary action, constructive dismissal or the need to apply for a transfer, but included any situation in which a reasonable worker would or might feel disadvantaged in the circumstances and conditions in which he had thereafter to work; that for the employee's description as "the wog" to have constituted such a detriment it had to be shown both that she had been intended to hear it and that having heard it a reasonable coloured employee in the same situation would have felt disadvantaged in the circumstances and conditions of her employment; but that such a conclusion was not supported by the findings of the industrial tribunal.
[26] In Shamoon Lord Hope considered the question of detriment in the context of an allegation of sex discrimination arising from the removal of the complainant/appellant, an Inspector in the traffic branch of the Royal Ulster Constabulary, of her role as a counselling officer in the appraisal of constables in the Urban Traffic Branch:
"34. The statutory cause of action which the appellant has invoked in this case is discrimination in the field of employment. So the first requirement, if the disadvantage is to qualify as a "detriment" within the meaning of article 8(2)(b), is that it has arisen in that field. The various acts and omissions mentioned in article 8(2)(a) are all of that character and so are the words "by dismissing her" in section 8(2)(b). The word "detriment" draws this limitation on its broad and ordinary meaning from its context and from the other words with which it is associated. Res noscitur a sociis. As May LJ put it in De Souza v Automobile Association [1986] ICR 514, 522G, the court or tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work.
35. But once this requirement is satisfied, the only other limitation that can be read into the word is that indicated by Lord Brightman. As he put it in Ministry of Defence v Jeremiah [1980] QB 87, 104B, one must take all the circumstances into account. This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to 'detriment': Barclays Bank plc v Kapur and others (No 2) [1995] IRLR 87. But, contrary to the view that was expressed in Lord Chancellor v Coker and Osamor [2001] IRLR 116 on which the Court of Appeal relied, it is not necessary to demonstrate some physical or economic consequence. As Lord Hoffmann pointed out in Khan's case, at p 1959, para 52, the employment tribunal has jurisdiction to award compensation for injury to feelings whether or not compensation is to be awarded under any other head: Race Relations Act 1976, section 57(4); 1976 Order, article 66(4). Compensation for an injury to her feelings was the relief which the appellant was seeking in this case when she lodged her claim with the tribunal. Her complaint was that her role and position had been substantially undermined and that it was becoming increasingly marginalized.
36. The question then is whether there was a basis in the evidence which was before the tribunal for a finding that the treatment of which the appellant complained was to her detriment or, to put it more accurately as the tribunal did not make any finding on this point, whether a finding that the appellant had been subjected to a detriment could reasonably have been withheld.
37. It is clear that the treatment of which the appellant complains was in the field of her employment. The practice by which she did the appraisals of constables as part of her job in the Urban Traffic Branch had been terminated. As for the question whether a reasonable person in her position might regard this as a detriment, the background is provided by the fact that not only was it the practice for the appraisals to be done by the chief inspectors but this was, as the tribunal put it, endemic in the Force. There was evidence that the appellant had carried out as many as thirty five appraisals since she was promoted to the rank of chief inspector. Once it was known, as it was bound to be, that she had had this part of her normal duties taken away from her following a complaint to the Police Federation, the effect was likely to be to reduce her standing among her colleagues. A reasonable employee in her position might well feel that she was being demeaned in the eyes of those over whom she was in a position of authority. The tribunal did not make an express finding to that effect, but there was material in the evidence from which this conclusion could reasonably be drawn. The respondent did not lead any evidence to the contrary, so he is in no position to resist the drawing of these inferences from the evidence. In my opinion the appellant was entitled to a finding that she was subjected to a detriment within the meaning of article 8(2)(b)."
[27] As in Shamoon the Tribunal in this appeal has made no express findings relating to whether the respondent felt that he was disadvantaged in the circumstances in which he would thereafter have to work. In Shamoon there was material in the evidence from which it could be inferred that the Inspector might feel that she was being demeaned in the eyes of those junior to her. In the instant appeal there is no such evidence.
[28] The issue of detriment was considered again by the Houses of Lords in Derbyshire & Oths v St Helen's Metropolitan Borough Council [2007] UKHL 16. Over 500 women brought equal pay claims against the Council. The Council settled the claim with 470 of the women by payment of a lump sum divided between them. The remaining 39 women proceeded with their claims. About two months before the claims were due to be heard the Council sent out two letters. The first sent to all staff said that the continuance of the claims would have a severe impact on all staff and the second sent to the 39 women described the council as greatly concerned about the likely outcome of the claim as stated in the first letter to all the staff. The 39 women brought claims under the Sex Discrimination Act that they had been victimised. The issue was whether the letters caused the employees a detriment by putting pressure on them to settle their claims as the other women had done. In his speech Lord Neuberger, with whom three other members of the House expressly agreed, considered at length the decision in Khan v Chief Constable of West Yorkshire Police 2001 4 AER 834, which was referred to the Tribunal in the instant appeal and the question of detriment. At paragraphs 66 - 69 he said –
"[66] Secondly, under the victimisation provisions, it is primarily from the perspective of the alleged victim that one determines the question whether or not any 'detriment' (in this case, in s 6(2)(b) of the 1975 Act) has been suffered. However, the reasoning in Khan's case suggests that the question whether a particular act can be said to amount to victimisation must be judged from the point of view of the alleged discriminator. Of course, the words 'by reason that' require one to consider why the employer has taken the particular act (in this case the sending of the two letters) and to that extent one must assess the alleged act of victimisation from the employer's point of view. However, in considering whether the act has caused detriment, one must view the issue from the point of view of the alleged victim.
[67] In that connection, Brightman LJ said in Ministry of Defence v Jeremiah [1979] 3 All ER 833 at 841, [1980] QB 87 at 104 that 'a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment'. That observation was cited with apparent approval by Lord Hoffmann in Khan's case at [53]. More recently it has been cited with approval in your Lordships' House in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, [2003] 2 All ER 26, [2003] ICR 337. At [35], my noble and learned friend, Lord Hope of Craighead, after referring to the observation and describing the test as being one of 'materiality', also said that '[a]n unjustified sense of grievance cannot amount to 'detriment'. In the same case, at [105], Lord Scott, after quoting Brightman LJ's observation, added '[i]f the victim's opinion that the treatment was to his or her detriment is a reasonable one to hold, that ought, in my opinion, to suffice'.
[68] In my judgment, a more satisfactory conclusion, which in practice would almost always involve identical considerations, and produce a result identical, to that in Khan's case, involves focussing on the word 'detriment' rather than on the words 'by reason that'. If, in the course of equal pay proceedings, the employer's solicitor were to write to the employee's solicitor setting out, in appropriately measured and accurate terms, the financial or employment consequences of the claim succeeding, or the risks to the employee if the claim fails, or terms of settlement which are unattractive to the employee, I do not see how any distress thereby induced in the employee could be said to constitute 'detriment' for the purposes of ss 4 and 6 of the 1975 Act, as it would not satisfy the test as formulated by Brightman LJ in Ministry of Defence v Jeremiah, as considered and approved in your Lordships' House. An alleged victim cannot establish 'detriment' merely by showing that she had suffered mental distress: before she could succeed, it would have to be objectively reasonable in all the circumstances. The bringing of an equal pay claim, however strong the claim may be, carries with it, like any other litigation inevitable distress and worry. Distress and worry which may be induced by the employer's honest and reasonable conduct in the course of his defence or in the conduct of any settlement negotiations, cannot (save, possibly, in the most unusual circumstances) constitute 'detriment' for the purposes of ss 4 and 6 of the 1975 Act.
[69] As already mentioned, it seems to me that in practice, the 'honest and reasonable' test suggested by Lord Nicholls at para [31] of Khan's case would, at least in any case I can conceive of, be very likely to yield precisely the same result as the approach, having had the benefit of argument in support from [2007] 3 All ER 81 at 104 Mr Hendy and Ms Gill focusing on the word 'detriment' in the present appeal, I would prefer. It is hard to imagine circumstances where an 'honest and reasonable' action by an employer, in the context or conduct of an employee's equal pay claim, could lead to 'detriment', as that term has been considered and explained in the cases to which I referred, on the part of the employee. In this case, at any rate, I am content to proceed on the basis that the council would succeed in defeating the claims if it could establish that, in sending the two letters, it had acted as an honest and reasonable employer in the circumstances."
[29] Later at paragraph 78 Lord Neuberger stated that he could not improve on the way Mummery LJ had expressed himself in the Court of Appeal when he said at paragraph 39 of his judgment –
"But the objection is not to the council seeking a settlement of the proceedings brought by the applicants. It is to the particular means by which it sought to achieve the settlement. It is reasonably clear from the extended reasons, when read as a whole, that the tribunal did not regard the council's treatment of the applicants as a reasonable means of protecting its interests in the litigation. The council could have protected its legitimate interests in the conduct of its defence to the litigation by seeking to achieve a settlement with those bringing proceedings against them by other means that were reasonable, such as negotiations with the applicants' union or their legal representatives. The council went further than was reasonable as a means of protecting its interests in the existing litigation and the reason for it doing so was, the tribunal found, that the applicants had brought the equal pay claims against the council and were continuing to bring them."
[30] Much of the discussion in Derbyshire concentrated on the words in the English legislation 'by reason that' in relation to why the employer acted as he did. Those words do not appear in the legislation in force in Northern Ireland. Here a person discriminates against another by way of victimisation if he treats him less favourably and does so for one of the reasons mentioned in paragraph 5. Nothing much turns on this difference in the legislation. The court must look at why the employer has taken the particular act from his standpoint and whether the act has caused detriment from the point of view of the alleged victim. What is clear is that an unjustified sense of grievance by the employee at the act of the employer cannot amount to a detriment. However, if it is the victim's opinion that the treatment was to his detriment and that was a reasonable opinion to hold, then that ought to suffice to prove detriment. But it would require positive evidence and findings to that effect. Mental distress and worry induced by honest and reasonable conduct of an employer in the course of his defence of a claim on its own cannot amount to detriment. There would have to be something more, at the very least the distress would have to be objectively reasonable.
[31] The Tribunal concluded at paragraph 98 of its decision that the statement of the Chief Fire Officer went far beyond the taking of honest and reasonable steps in defence of the proceedings. It has not been suggested that the Chief Fire Officer was anything other than honest. For the reasons that we have given earlier we do not think a Tribunal, having properly directed itself about the statement and the context in which it was made, could have concluded that it was gratuitous and served no useful purpose. That was an overstatement. A finding that it amounted to detrimental treatment required more than the unsupported statement of the Tribunal that an employee who suffered such treatment could reasonably conclude that he had thereby been disadvantaged in the circumstances in which he would thereafter have to work. There is a requirement for objective evidence to that effect which is reasonable in the circumstances. That is absent in the findings of the Tribunal. Therefore there is no basis in fact or in law for finding that the respondent suffered a detriment. No reasonable Tribunal properly directing itself in fact and law could have reached the conclusion that the respondent had been unlawfully victimised by the Chief Fire Officer in the course of the grievance appeal.
[33] For all these reasons we answer the question posed in the case stated 'Yes'.