Fair Employment Tribunal Northern Ireland Decisions

 


FAIR EMPLOYMENT TRIBUNAL

CASE REF: 00310/98FET

APPLICANT: James Willis

RESPONDENT: 1. Police Authority for Northern Ireland

2. Sir Ronnie Flanagan

3. Mr Colin Smith

DECISION

The unanimous decision of the Tribunal is that the applicant was unlawfully discriminated against by the respondents in the arrangements made to appoint an Assistant Chief Constable on the grounds of religious beliefs and by way of victimisation. The hearing is adjourned to a date to be fixed for consideration of remedy.

APPEARANCES:

APPLICANT: Mr Patrick Ferrity, Barrister-at-Law, instructed by the Equality Commission.

RESPONDENTS: Mr Nicholas Hanna, QC, instructed by the Crown Solicitor

1. The applicant was a member of the Royal Ulster Constabulary from August 1966 until 2 November 1998. He was a Chief Superintendent from 1991 and resigned at the age of 51 years because he believed that he was being victimised by senior command, Her Majesty's Inspector of Constabulary and members of a Police Authority selection panel on account of a previous complaint which he made to the Fair Employment Tribunal in 1996. He complained to the Fair Employment Tribunal on 2 July 1998 that he had been unlawfully discriminated against by the first respondent in April 1998 when he was again not selected as an Assistant Chief Constable on the grounds of his religious belief(s) and/or victimised because of an earlier complaint to the Fair Employment Tribunal in 1996 against the first respondent. On the application of the applicant, the President of the Tribunals joined the Chief Constable, Sir Ronnie Flanagan and Her Majesty's Inspector of Constabulary, Mr Colin Smith, as parties to the proceedings. All respondents denied the allegations made against them.
2. The applicant's complaints of unlawful discrimination on the grounds of his religious belief and by way of victimisation fell into a number of categories which had both an independent existence and formed part of a comprehensive allegation. He alleged such discrimination by -

(a) the Chief Constable - the second respondent - in a report prepared by him on candidates for use at the shortlisting and interview.

(b) the Chief Constable because of his oral contribution at shortlisting and interview.

(c) HM Inspector of Constabulary, Mr Colin Smith, the third respondent, because of the assessments prepared by him for the information and use of the shortlisting and interview panels and because of the procedure which he employed in formulating his report.

(d) HM Inspector because of his oral contribution at shortlisting and interview.

(e) the shortlisting panel in shortlisting the successful candidate when he did not fulfil the essential shortlisting criteria.

(f) the shortlisting panel in using summary sheets extracted from the reports prepared by the Chief Constable and HMI and in accepting the advice given by the Chief Executive of the Police Authority on the question of the candidate's eligibility for shortlisting.

(g) the shortlisting panel in accepting oral comments from the Chief Constable/HMI which were themselves discriminatory.

(h) the interview panel in treating the successful candidate more favourably than he at interview on marking his presentation and his answers to the questions posed.

(i) the interview panel in using assessments prepared by the Chief Constable/HMI which were, in themselves, discriminatory.

(j) the interview panel in relying upon the oral discriminatory assessments of the Chief Constable/HMI given at interview.

(k) the interview panel and the first respondent in the arrangements made to decide who the successful candidate should be.

3. There were five applicants for the post of Assistant Chief Constable in 1998. Three, including the applicant, were Protestants, one was a Roman Catholic and one, the successful candidate was undetermined. The applicant described himself as a 'born again Christian' and it was this belief which formed the basis of his religious belief discrimination complaint. Applicants were required to be serving police officers at Superintendent level, to have relevant experience of operational policing, policy and planning and to have completed either the Senior Command Course, the Strategic Leadership Development Programme or the Strategic Command Course. The only issue taken by the applicant in relation to these requirements was whether or not the successful candidate had relevant experience of operational policing, policy and planning. Operational was not defined but the information issued to candidates stated that relevant experience of operational policing, policy and planning related to experience gained in these areas at the superintendent rank.
4. The shortlisting panel and the interview panel were identical. They consisted of six persons bring the Chairman and Vice-Chairman of the Police Authority and four other members. The Chief Constable and HMI attended both the shortlisting exercise and the interviews. Both were invited to comment on the competence of each candidate at shortlisting and both were asked questions at the end of each interview. At the end of all the interviews both were asked to comment and the Chief Constable was present again after the panel reached their recommendation. The Chief Executive of the Police Authority was present at both shortlisting and at interviews. He addressed the shortlisting panel and advised that

"at the outset it was clear that all of the applicants had satisfied certain set criteria: all were of superintending ranks, all had passed or had completed the Senior Command Course or equivalent, all had a broad range of policing experience, as was declared by CVs, all were of satisfactory health and all had the support of their Chief Constables. That being the case, it would be appropriate for members to consider the competences disclosed by each individual candidate and to have comments from both the Chief Constable and HMI."

5. There were eight competences involved at shortlisting and interview namely judgement, self confidence, strategic perspective, ability to achieve objectives, communication and inter-personal skills, information management, team building and ability to influence others. At interview each candidate was required to make a presentation to the panel of ten minute duration on the following -

"Identify the key elements of a strategy for addressing under-representation of Roman Catholics, women and minority groups in the RUC.

Describe the actions you would take to implement your strategy."

The panel assessed the candidates' performance in delivering this presentation under the headings of communication and interpersonal skills, ability to influence others, self confidence, strategic perspective and judgement. None of the panel, in assessing each presentation, graded solely for presentation but gave a single grade in respect of the presentation, the response to set questions, the assessment by the Chief Constable/HMI, the contents of the application forms and the oral comments of the Chief Constable/HMI.

6. There were six questions asked of each candidate, namely

(1) describe an example of a policing problem you faced which required a revision of existing strategy.

(2) describe an experience where you had insufficient resources to meet the demands placed on you and how did you deal with it.

(3) describe the circumstances surrounding the most difficult operational decision you have made, the key factors taken into consideration and the process used.

(4) give an example from your personal experience where a planned operation was judged to have damaging implications for a local community's perception of and confidence in the police and the steps taken in planning and implementing.

(5) describe your leadership style using examples from your personal experience where you provided leadership in difficult circumstances and give an example from your experience where you had responsibility for introducing an organisational change, and

(6) what changes will be necessary to enable the RUC to cope with a peacetime role.

7. Each panel member afforded one of four grades to their assessment of each candidate upon both the presentation (on five competencies) and the answers to questions (on eight competencies) and on the assessments provided by the Chief Constable/HMI, the candidates' application forms and the clarifications/observations of the Chief Constable/HMI. The four markings were exceptional, more than satisfactory, satisfactory and less than satisfactory. The interviews were scheduled for 60 minutes with 10 minutes allowed for the presentation. The applicant and the successful candidate both took their allotted time. The process for making appointments at Chief Officer level in the RUC is set out in the Secretary of State's Procedures for the appointment of ACPO ranks which were promulgated by the Northern Ireland Office on 23 January 1996. Inter alia it requires -

(1) applicants to advise the Chief Constable of their application.

(2) Her Majesty's Inspector to co-ordinate the promotion/assessment forms with each applicant's Chief Constable.

(3) the assessment form on each candidate by the Chief Constable had to assess the degree to which the applicant had the qualities, skills, knowledge and experience necessary for the post and had to be shown to and discussed with the applicant before being forwarded to HMI.

(4) Using this form and any other information available from other job relevant sources (such as extended interview or attendance on national/regional training course) HMI had to provide a narrative assessment of the applicant and a marking for the applicant's suitability for promotion/appointment. Copies of the assessment had to be given to the applicant and the Chief Constables of the candidates - significant disagreement requires that the applicant/Chief Constable be given an opportunity to discuss the appointment with HMI before the shortlisting.

(5) The Police Authority is required to consult the Chief Constable before appointing to ACC or DCC ranks. It is suggested that the Authority should invite the Chief Constable to the shortlisting meeting to advise on technical and professional matters and that HMI should also attend in an advisory fashion It suggests that the Chief Executive and a personnel expert should also be available at shortlisting to advise on legal and technical matters.

(6) At shortlisting applications should be independently evaluated by panel members and then collectively reviewed before a consensus decision is reached. The panel will have available the assessments compiled by the Chief Constable and HMI.

(7) At interview selection panels should have the advice of professional police officers. In ACC appointments, the panel is required to consult the Chief Constable before an appointment is recommended.

8. The applicant was promoted to Chief Superintendent in 1991. In April 1994 he applied for appointment as Assistant Chief Constable, was shortlisted but ultimately was unsuccessful. In July 1994 a further ACC vacancy arose and the applicant again applied. In September 1994, he was informed that he had not been shortlisted. The applicant sought a judicial review of that decision on the basis that the Police Authority had made the recommendation of the Chief Constable a pre-requisite for shortlisting. He withdrew his judicial review when the Police Authority decided to re-advertise the post. In May 1996 the applicant again applied for ACC vacancies but was informed in July 1996 that he had been unsuccessful. The applicant made a complaint to the Fair Employment Tribunal that he had been unlawfully discriminated against on religious grounds.
9. The applicant had also applied for ACC posts in Central Scotland and Lancashire and in April 1997 applied for an ACC vacancy in Merseyside. He was not shortlisted for the vacancies in Scotland, Lancashire or Merseyside. The applicant applied in February 1998 for a further ACC vacancy in the RUC and withdrew his 1996 complaint to the Fair Employment Tribunal. His lack of success in this competition led to his present complaint. It was the applicant's belief that his lack of success in 1998 was as a result of his 'born again Christian beliefs' and/or his complaint to the Fair Employment Tribunal in 1996. The respondents accepted that his complaint in 1996 constituted a 'protected act' within the meaning of the victimisation legislation.
10. The candidates were asked in completing their application forms to describe their previous experience in each of the (eight) competence areas after outlining their experience of operational policing, policy and planning. Both applicants did so in extensive detail and both application forms were considered by both the shortlisting and interview panels and the interview panel's final grading of candidates was based on those application forms, the Chief Constable's report, HMI's report, presentation and answers to interview questions.
11. The Chief Constable assessed the applicant as markedly better than acceptable under 7 competencies and as outstanding in one. He marked the successful candidate as outstanding in 4 competencies and as markedly better than acceptable in 4 competencies. He assessed the successful candidate as overall outstanding and the applicant as overall markedly better than acceptable. In his narrative overview, the Chief Constable noted that

(1) as training officer the applicant demonstrated the highest level of strategic thinking and innovation.

(2) the applicant was undaunted by change.

(3) the applicant's performance in a range of highly challenging posts both operationally and in Headquarters Departments left him in no doubt as to his suitability to face the challenges posed for Chief Officers in contemporary policing, and

(4) his determination to achieve results was best exemplified by his most impressive academic achievement.

In his overview of the successful candidate, he noted that

(1) this candidate was a product of the Special and Senior Command Courses. [The applicant also attended the Senior Command Courses.]

(2) he had obvious intellectual ability, impressive clarity of thought and the capacity to tackle diverse and complicated issues in his stride.

(3) he gained wide experience in London lately as Detective Chief Inspector.

(4) his total commitment to the RUC was exemplified by the fact that he transferred to the RUC without promotion and moved with his wife and family to settle here. [The applicant's commitment to the RUC was not commented upon.]

(5) he served as Deputy Sub-Divisional Commander at Lisburn where his obvious talent and leadership was soon recognised and he was moved on promotion to Superintendent to Headquarters where his work was of an exceptionally high standard. [The applicant had been SDC in Lisburn at Superintendent rank. He had been further promoted but no obvious talents or leadership qualities were considered nor was the standard of his work.]

(6) on return from the SCC in 1994 he was especially selected for transfer to Special Branch which was a clear indication of the respect in which he was held and the absolute reliance in his ability to tackle new challenges confidently and without fuss. [The applicant's selection as Head of Training and Head of Traffic was not commented upon in such terms.]

(7) his interpersonal skills were finely tuned, he was at home in any company, was a first class negotiator and he achieved admirably in a most sensitive task. [The applicant was not assessed under such headings.]

(8) he was one of the most able officers in the RUC. His operational and Headquarters experience was complemented by a quiet though determined personality with the most desirable facets of flexibility, vision and receptiveness to new ideas. [The applicant was not considered under such headings.]

(9) he was an officer of outstanding ability and potential and was highly recommended for appointment to ACC.

12. It is abundantly clear from a comparison of these two assessments that the Chief Constable preferred the successful candidate for, whilst he did believe that the applicant was appointable, both the gradings and the narrative comments placed the successful candidate in an entirely different league. But the evidence presented by the Chief Constable fell far short of satisfying us that the successful candidate merited all of these extremely positive assessments and comments - or that the applicant did not. The shortlisting and interview panels did not need to be satisfied that the candidates merited the assessments given to them by the Chief Constable for under the Secretary of State's Guidelines the Chief Constable was required to assess the degree to which the applicants had the qualities, skills, knowledge and experience necessary for the post. On the evidence they did not question the Chief Constable on his assessments yet he did not apply his mind to similar considerations between the applicant and the successful candidate, ie. obvious intellectual ability, ability to tackle diverse/complicated issues, commitment to RUC, his talent for leadership, the standard of his work, the respect he was held in, his interpersonal skills, his ease in company, his negotiation skills, his personality, his flexibility or his vision. This apart, the Chief Constable, in his report, in our opinion, actively promotes the successful candidate in his comments upon his career quite differently and more favourably than he does the applicant. There is no equivalent in the applicant's assessment to the descriptive words used for the successful candidate, ie. obvious intellectual ability, impressive clarity of thought, total commitment, obvious talent, exceptionally high standard, especially selected, clear indication, absolute reliance, first class negotiator, most able and outstanding, etc. If the Chief Constable's evidence had established these attributes for the successful candidate to our broad satisfaction and had shown that he considered the applicant broadly under similar terms, the difference in assessment obviously would not have amounted to less favourable treatment. Because he has failed to do so, we believe that we are entitled to conclude that he treated the applicant less favourably than he treated the successful candidate and we do so conclude.
13. The significance of the Chief Constable's assessment to the entire selection procedure can scarcely be overstated. The Chief Constable assesses the degree to which an applicant has the qualities, skills, knowledge and experience necessary for the post. The Secretary of State's Code of Procedure for the selection of senior officers itself recognises the importance of selection panels having the advice of professional police officers. The Chief Constable of the RUC in this procedure assessed both the applicant and the successful candidate, communicated those assessments to HMIC, the shortlisting panel and the interview panel, commented upon interview performance and, on the panel evidence - though not in the evidence of the Chief Constable - was consulted on the proposed recommendation of the panel. The arrangements made for the selection of senior officers clearly value the role of the Chief Constable and it is obvious why the views of professional police officers are important in the context of a selection by a lay non-professional police panel. We have a serious reservation in terms of transparency and equality of opportunity about the involvement of the same Chief Constable in assessing the degree to which a candidate has the qualities necessary for the post and then in commenting thereafter upon interview performance knowing that the panel will rely also upon his assessment. We shall return to this matter later.
14. The applicant was very clearly of the belief that the Chief Constable was not well disposed towards him. The Chief Constable sought to stress his high regard for the applicant as a policeman and a colleague and a friend. On the evidence which we heard we have great difficulty in accepting that the Chief Constable's regard for the applicant was as he stated in his evidence. There is very clear evidence to the contrary. A Sgt AK informed the applicant that the Chief Constable referred to him, the applicant, as 'a balloon' in terms as 'How do you work with that balloon?' The Chief Constable could not recall making any such remark but accepted, on what he knew of Sgt AK, that if AK said that he said it, then he did say it. But he would not have intended it in a derogatory manner. Be that as it may, and it is difficult to believe that an Assistant Chief Constable would address a Sergeant in those terms about his Superintendent 'line manager' without intending at least to diminish respect, Sgt AK in his evidence went on to say that the Chief Constable made a further derogatory remark about the applicant at the same time. He could not recall the precise terms of that remark but did recall that it was derogatory. Given the Chief Constable's acceptance of the credibility of Sgt AK, we find that he did make this further derogatory remark. The fact however that a senior officer makes a derogatory remark about another senior officer to a more junior colleague may be unfortunate and unfair - it does not mean that such unfairness will be carried into a selection process or that the officer involved will unlawfully discriminate on the grounds of religious belief or by way of victimisation. This incident happened in June 1994 so it was not generated by any act giving rise to a claim of victimisation.
15. In February 1996 at an event at the Training Centre in Garnerville the applicant and the Chief Constable discussed a number of matters including applications which the applicant had made for ACC posts in Central Scotland and Lancashire in which he had not been shortlisted. Shortly after they both sat down at a table with the Superintendent in charge of operational training, Supt C, and others, the Chief Constable said to the applicant 'Jimmy you don't fucking challenge the Chief Constable'. The Chief Constable believed that this comment was passed by him in relation to a suggestion that the applicant had made to the effect that he, the applicant, might have taped a conversation with the previous Chief Constable. It is possible that the Chief Constable did make such a reference in relation to the possibility that the applicant might have made a tape of a conversation with a previous Chief Constable some 18 months before because the applicant did lead him to believe that he might have done so. It seems to us more likely that the comment referred to the applicant's ongoing lack of success in applying for ACC posts, given that the applicant had challenged his Chief Constable - by legal action, in the full glare of publicity and with the result that the recruitment procedure was changed. The significance of the remark, for the applicant, was that it confirmed for him that he had violated a police culture in lodging a judicial review against PANI in relation to the need for a Chief Constable's recommendation. So far as this Tribunal is concerned, the Chief Constable's remark (he was then Assistant Chief Constable) was a frank and forthright opinion communicated at a bad time and in an unfortunate way. On its own it appears to have nothing to do with the applicant's religious beliefs and it does not amount to victimisation either within the meaning in the Fair Employment Act or otherwise. The applicant was not interviewed for the post about which he complained in 1996 until 3 July 1996 and did not complain until 2 October 1996. But it does seem to be an unqualified recognition by the then Assistant Chief Constable that there could be a price to be paid for challenges to the Chief Constable. It seems to us that the applicant's interpretation of the Assistant Chief Constable's remark was more likely than the Assistant Chief's explanation.
16. At Christmas 1997 the Chief Constable asked the applicant into a Christmas party at Headquarters. There were about 12 people there and the Chief Constable was the focus of attention. He looked at the applicant and asked him if what he had in his glass 'was a wee smidgen of wine'. The applicant replied that it was coke. The Chief Constable then allegedly mentioned a case where an officer had taken a case to a tribunal and was awarded a sum of money. The Chief Constable allegedly described such actions as a load of nonsense and joked that he should have taken action in respect of victimisation for baldness. The applicant felt that this joke was at his expense. The Chief Constable accepted that he may have said the words complained of - 'smidgen of wine'. The Chief Constable knew the applicant did not drink alcohol - so this was clearly a joke at the applicant's expense. He did not recall talking of a case being taken by an officer to a tribunal and would certainly not have described the exercise of such a right by an officer as a load of nonsense. He did recall the reference to baldness which was a story he told on a number of occasions arising out of his selection for the FBI academy when under J Edgar Hoover baldness was something of a barrier.
17. The applicant's account of the incidents at the Christmas party in 1997 is substantially accepted by the Chief Constable but the inference from the Chief Constable's evidence is that the applicant has made up the bits about the mention of an officer who went to a tribunal and the comment from the Chief Constable that such actions were a load of nonsense. Clearly at Christmas 1997, the applicant had made a complaint to the Fair Employment Tribunal, ie. in October 1996. If such a remark was made, he is, on that account, more likely to remember it. In December 1997, the applicant was a Chief Superintendent in "D" Department which post was designated "Deputy Assistant Chief Constable - Operations". He had taken judicial review proceedings in 1994 by way of challenge to the right of the then Police Authority to shortlist only those candidates who had a recommendation from their Chief Constable. He had withdrawn his application but, despite objections from the Police Authority, he had been awarded costs by the court as his case had not insignificant merit. The Chief Constable denied that the complaint made by the applicant was drawn to his attention and stated that he did not become aware of this 1996 complaint prior to the conduct of the current proceedings. He accepted that everyone probably knew of the judicial review proceedings but there was no reason why anyone would know of his 1996 complaint to the tribunal.
18. Unanimously we were impressed by the testimony of the applicant. We have some difficulty with the Chief Constable's evidence in relation to his regard for the applicant and his derogatory remarks. We have some difficulty with his explanation for the advice that you should not challenge the Chief Constable. We have some difficulty in accepting that the Chief Constable would not have been made aware in 1996/1997 that an officer of the applicant's rank had made a complaint that the Police Authority had unlawfully discriminated against him on the grounds of religious beliefs in not appointing him to a post as Assistant Chief Constable. Members of the Police Authority knew and at this stage the Chief Constable had been in post for over a year. It seems to us that the world of policing in Northern Ireland at high rank is a very small world. Apart from the fact that that it would make good sense to alert a person in charge to the fact that a senior officer had made such a complaint, it would, in our opinion, be more likely than not that the grapevine would do so. On balance of probability we think the Chief Constable did know in December 1997 of the applicant's 1996 complaint.
19. When the Chief Constable assessed the internal interview candidates in March 1998, we believe that he -

(a) saw the applicant as an officer who did not exactly fit the mould he had in mind for his Assistant Chief Constables. In the context of the long parallel careers of both men from the mid-sixties to 1998, we have no reason at all for thinking that the Chief Constable changed his opinion of the applicant between 1994 and March 1998. A Chief Constable is scarcely likely to want 'a balloon' for an Assistant Chief Constable.

(b) knew that the applicant had made a complaint to the Fair Employment Tribunal in 1996 in relation to the same level of post as he was now competing for in 1998.

(c) believed that the taking of complaints by police officers to tribunals was a lot of nonsense, and

(d) would not be surprised himself by the fact that if you challenged your Chief Constable, there was a price to be paid.

20. In paragraph 12 above, we explain why we believe that the Chief Constable treated the applicant less favourably than the successful candidate in assessing for HMI, the shortlisting panel and the interview panel the degree to which each candidate had the qualities, skills, knowledge and experience necessary for the post of Assistant Chief Constable. We believe that in considering the qualities necessary for appointment it is more likely than not that the Chief Constable was influenced by his opinion of the applicant as a 'balloon' and that this opinion related to the applicant's religious beliefs and by the fact that he had made a complaint to the Fair Employment Tribunal in 1996.
21. We so believe for the following reasons -

(a) the Chief Constable's use of the word 'balloon' in 1994. As explained to us, this comment was made instantaneously when the Chief Constable met Sgt AK on a visit to deliver papers. It conveys to us an impression of a longstanding opinion which the Chief Constable held about the applicant. Yet it is not an opinion of which the slightest trace can be found in the contents of the assessment.

(b) jocular or not, its use in 1994 by the Chief Constable suggests to us that the Chief Constable was distinguishing the applicant from his colleagues in a way which was not to the applicant's advantage. We do not know whether it was his style of policing, his judgement, his personality or whatever which incurred the dislike of the Chief Constable but in our opinion it cannot be interpreted other than as a serious reservation by the Chief Constable for, in common sense, a Chief Constable would not want a 'balloon' as one of his most senior officers.

(c) we do not know why the Chief Constable used the word. We do not have an explanation from him other than his suggestion that it was really only a joke. We reject that explanation principally because it was followed by a further derogatory remark. And as we have said, there is nothing in the assessment itself which suggests an answer. The only matter, on the evidence, which we believe distinguished the applicant from his colleagues is his 'born again' Christian convictions.

(d) the applicant obtained a PhD in Theology from an American University in 1994 which, if anything, must have rendered him unique amongst senior officers in the RUC so that from 1994 his 'idiosyncratic side' had increased rather than diminished. We make clear that we do not believe the undertaking or gaining of a qualification in Theology constitutes a religious belief - but it would, and in our opinion most likely did, draw attention to the Christian beliefs already held . In the end, there is no other explanation put forward to explain this remark so we conclude that the Chief Constable's assessment of the applicant in 1994 to Sgt AK related to the applicant's religious beliefs. We draw the inference from these facts that the less favourable treatment in the 1998 assessment was related to those same beliefs.

(e) in between 1994 and 1998, the applicant had commenced judicial review proceedings and a religious discrimination claim against the Police Authority. The judicial review, though against the Police Authority, related to a perceived 'veto' which the Chief Constable held over eligibility for senior appointments. Likewise the complaint to the FET would involve consideration of the Chief Constable's assessment and contribution to the selection procedure. We believe the Chief Constable believed that there was a price to be paid for challenges to the Chief Constable. In our opinion, if you warn someone that he should not challenge the Chief Constable, it is because consequences will flow from his challenge and, whilst lack of advancement is not the only possible consequence, it is clearly a likely one. And the warning was issued, we believe, after a discussion about lack of advancement. Accordingly we draw the inference that the 1998 assessment was influenced to the applicant's detriment by the 1996 FET complaint.

(f) we believe that the Chief Constable did discriminate against the applicant on the grounds of his religious beliefs and by way of victimisation in drawing up his assessment of the applicant. We believe that the applicant did not fit the mould desired by the Chief Constable in a Assistant Chief Constable and but for his religious beliefs and his 1996 complaint he would have fitted that mould.

We are conscious that the Chief Constable did give the applicant a good assessment and that on this assessment the applicant was clearly appointable. However all assessments, in the context of a selection procedure, are relative where the same Chief Constable is assessing a number of candidates. Given the input of the Chief Constable to the selection process both as the applicant's and the successful candidate's assessor and as the Chief Constable to the appointing authority, it is unlikely, to say the least, that a non-professional panel - in policing terms - could see the applicant and the successful candidate in the same league.

22. Given the procedures employed in this exercise and, in particular, the undeniable fact that the Chief Constable influenced the interview panel and HMI, our finding in relation to the Chief Constable is fatal to the entire exercise. Neither HMI nor any member of the interview panel could show the extent to which they relied upon the Chief Constable's assessment in carrying out the tasks allotted to them by the procedure but their assessment of the candidates was based, inter alia, on the Chief Constable's assessment. But even if there was some means of isolating the effect of the Chief Constable's assessment, that assessment is an integral part of the entire process in the same way as interview performance. We cannot say whether, in the absence of discrimination by the Chief Constable, the assessments of the candidates would have favoured the applicant or the successful candidate. We cannot therefore reach a conclusion on whether the applicant would have been the successful candidate if the arrangements made for selecting the most suitable candidate had not resulted in discrimination. It follows from our finding that the first, second and third respondents all discriminated against the applicant on the grounds of his religious beliefs and victimised him because of his complaint in 1996 because of the unascertainable extent to which they relied on the Chief Constable's assessment.
23. Having heard evidence in relation to this complaint over some 11/12 days, we make the following findings in light of the above conclusions in relation to the other aspects of the applicant's claim -

(a) there is no evidence before us from which we could conclude that the Chief Constable discriminated in the oral comments which he made at shortlisting or at interview.

(b) HMI endorsed the Chief Constable's report largely on the basis of reports available only to him. He provided a one page, 4 paragraph report for each candidate in which the first three paragraphs traced career and the fourth paragraph contained an assessment. In his final paragraph, HMI did not challenge the Chief Constable's assessment. We can understand why the applicant felt that the assessments by HMI treated him less favourably in places, ie. references to various unskilled jobs before joining the police, passing interview at second attempt, but these are factual observations - though we believe that the entire selection process should ensure, as the Fair Employment Code of Practice recommends, that no extraneous or irrelevant requirements are included in the process. Of what possible relevance to a selection process in 1998 is a candidate's work history pre 1966? But we do believe that we could conclude from HMI's description of the applicant's policing experience - "very varied policing experience" as compared to the successful candidates - "with a wider experience of policing" that the applicant was treated less favourably. We have not pursued this matter since we do not believe that -

(i) the applicant's religious beliefs played any part in HMI's assessment, or that

(ii) we could draw any inference, on the facts, that HMI's overview was influenced by the applicant's 1996 complaint to the FET,

beyond the extent created by his reliance upon the Chief Constable's assessment. We have no evidence which would enable us to conclude that HMI treated the applicant less favourably at shortlisting or at interview.

(c) whilst recognising the effect on the applicant of a misunderstanding on the part of HMI in relation to the right of the first respondent to see his overview, we do not believe that this was other than a misunderstanding uninfluenced and unaffected by the applicant's religious beliefs or his 1996 complaint to the Fair Employment Tribunal.

(d) the successful candidate did satisfy the eligibility requirement for appointment in relation to experience of operational policing at Superintendent level. Whilst the issue is certainly not without ambiguity, we do not believe that experience, such as described by the successful candidate, in Special Branch could be termed 'non-operational' - though police officers may, in day to day terms, have a different understanding. The Chief Constable himself in his assessment of the applicant and the successful candidate differentiates between operational and Headquarters service, and HMI between police experience with "a strong operational bias" and a Headquarters post involving "significant operational decisions".

(e) the use of summary sheets, even including the selective use of information otherwise available, was not less favourable treatment, and

(f) as the successful candidate was eligible for shortlisting and appointment, we do not believe that the Chief Executive treated the applicant less favourably in advising the shortlisting panel to similar effect.

24. A considerable part of the hearing before this Tribunal related to the assessment of the applicant's performance at interview compared to the performance of the successful candidate. It was not a particularly fruitful exercise given the inability of most interviewers to recall in any detail the reasons for their assessments and the failure by most to make notes which would have assisted them in this task. The process involved a ten minute presentation by each candidate followed by 6 questions to each. The presentation was assessed under 5 competencies and the responses to the questions under 8 competencies. On the evidence this was done by each interviewer at the end of each interview without notes when they also took into account, under each competence, the Chief Constable's assessment, HMI's overview and the quite extensive contents of each application form. It is not surprising therefore that, without notes, recall was always going to be difficult. And to complicate matters, no interviewer attempted to relate his/her gradings to any particular part of the matters being assessed. We, as a Tribunal, certainly appreciate that no interview panel is concerned primarily about performance before the Fair Employment Tribunal when they are trying to select the best candidate for an important post. However, the Code of Practice for Fair Employment in Northern Ireland, which came into operation as far back as 1989, makes clear what is expected of interview selection panels. At paragraph 5.3.7 of that Code, employees are strongly recommended to -

(a) record the assessments and decisions of shortlisting, interviewing and selection panels in relation to the relevant factors and their importance, and

(b) retain all application forms and related documents for 12 months in order to be in a position to deal with any subsequent complaints about the implementation of the selection procedures.

It is impossible to tell from the documents which we saw the extent to which assessments were made on simple interview performance or on the Chief Constable's assessment or on application forms. It was impossible to tell from the evidence which illustrated a further difficulty in that, in assessing experience, the successful candidate's experience in Special Branch was not open to the same scrutiny as the applicant's police service both in relation to the contents of his application form and his interview performance.

25. After hearing evidence from each of the interviewers, we do not know the extent to which interview performance carried the day as distinct from the Chief Constable's assessment, HMI overview and confirmatory comments from both after interview. There was certainly no direct evidence of discrimination by the panel as a whole or by any particular interviewer and indeed the applicant did not proceed with an allegation that the panel members treated him less favourably on religious grounds. But if any interviewer in his assessment did treat the applicant less favourably than the successful candidate, and there are instances where such a conclusion would be open to the Tribunal, the obvious inference to draw from such conduct would be that the interviewer was impressed by the Chief Constable's assessments, as confirmed by HMI and not departed from by either after interview. Indeed such an inference would be irresistible. We think the applicant's religious beliefs were irrelevant to the panels deliberations and we draw no inference of discrimination from their knowledge that he brought a complaint in 1996.
26. As we mentioned above, we do have a concern at a procedure which requires assessments from a Chief Constable who also is involved in shortlisting, at interview and after recommendation in advising a lay panel as a professional police officer. Not only does his assessment form an integral part of the selection process by the interview panel but the Chief Constable has an additional opportunity to add to his assessment (1) after each interview; (2) after all the interviews, and (3) after the panel have reached a tentative recommendation. The influence of the Chief Constable as a professional upon a lay panel must be immense and subject only to the input of HMI who of course relies upon the Chief Constable's assessment and produces his own overview before interview. It does seem to us that the procedure would benefit in terms of fairness and transparency if a Chief Constable other than one who has provided an assessment could provide the necessary professional advice to the selection panel. Such a change would not affect the need for the panel to consult their own Chief Constables before making a recommendation to the Secretary of State. Whatever about this recommendation, we believe that future interview selection panels must identify the extent to which they were impressed by each of the matters they were required to consider ie. Chief Constable's assessment, HMI overview, application form and interview performance. In our opinion a procedure which tolerates one grade for all such considerations is not one which promotes equality of opportunity or allows for independent scrutiny thereafter.
27. We therefore conclude that the respondents unlawfully discriminated against the applicant in the arrangement which they made to decide who should be offered the post of Assistant Chief Constable. We cannot say with any degree of certainty that the applicant would have been successful in the absence of such discrimination. The proceedings are adjourned to a date to be fixed to determine the appropriate remedy.

_________________________________

J E MAGUIRE

President

Date and place of hearing: 28-31 January 2002, 1 February 2002, 10-11 February 2002 & 22, 25, 29-30 April 2002, Belfast

Date decision recorded in register and issued to parties: 29 May 2002