Fair Employment Tribunal Northern Ireland Decisions

 


FAIR EMPLOYMENT TRIBUNAL

CASE REF: 00174/98FET

APPLICANT: Malachy Fleming

RESPONDENTS: 1. Kevin Halus

2. Staff Sergeant Neely

3. Ministry of Defence

DECISION

The unanimous decision of the Tribunal is that:-

a) The applicant was subjected to sectarian harassment.

b) The applicant was unlawfully discriminated against on the grounds of his religious belief contrary to the provisions of the Fair Employment and Treatment Order (Northern Ireland) 1998.

Appearances:

The applicant was represented by Mr M. Wolfe, Barrister-at-Law instructed by the Equality Commission

The respondent was represented by Mr S. Ritchie, Barrister-at-Law instructed by Crown Solicitors Office.

1. By Originating Application submitted on 16 April 1998, the applicant claimed that he had been discriminated against by the respondent on grounds of his religion. The applicant had been a member of the Territorial.Army (TA) 211 Squadron for a period of 11 years from 1 November 1987 until his resignation on 26 October 1998. At the time of his resignation, he was a corporal based at Coleraine. The applicant claimed that throughout his service in the T.A., he was subjected to sectarian harassment contrary to the provisions of Article 19(1)(b) of the Fair Employment and Treatment Order Northern Ireland 1998 (the Order). His second claim was that he had been unlawfully discriminated against by the respondent by being passed over for promotion to the rank of sergeant despite having achieved the necessary qualifications also contrary to the provisions of Article 19(1)(b) of the Order.
2. The tribunal firstly considered the case of sectarian harassment. The applicant is a Catholic and was one of a small number of Catholic members of the T.A. There were approximately 10 Catholics of a membership of 147 in the Squadron. The applicant gave evidence that when he joined the T.A., he was warned by another member, Bertie Smith, who has since died, that he would need to be 'thick skinned'. He gave evidence of an episode in approximately 1988 when he was talking during drill and was told by Mr Patrick

"If that's the way the provos march it's not the way we do it in Ballymoney".

He gave evidence that throughout his time in the T.A., he was subjected to sectarian abuse in the form of name-calling. He said that over the years he had been called 'bullet stopper', 'pope head', 'token taig' and Fenian on a regular basis. The applicant told us that he had been present when Protestant sectarian songs had been sung while travelling with the T.A., on buses and boats and also while billeted at camps. The applicant gave evidence of flags being displayed in billets and flutes and drums being played. He said that he was frequently the subject of sectarian jokes and that these culminated in an incident at the other ranks Christmas dinner in December 1997. This was an annual dinner at which the other ranks were served by the officers. The applicant gave evidence that after the lunch it was customary for the piper to be asked to play requests. The applicant stated that there was a request for the sash to be played and the applicant was approached by Mr Burnside to sit on the floor in front of the piper to object to him walking into the hall in an enactment of the political difficulties current in the Province at that time. The applicant was offended by this and complained to Mr Colin Neely about his treatment and then left. The applicant gave evidence that officers were present during the incident.

3. The evidence in relation to these incidents was supported by four ex-members of the T.A., who are all Protestant. They all supported the applicant's evidence in relation to the parade ground incident and also the sectarian name calling which the applicant complained of. Some of them confirmed the playing of the sash at the Christmas dinner in 1997 but none of them witnessed the incident where the applicant was asked to sit on the floor. The applicant also complained about a pub quiz evening which consisted of teams of five players. The applicant stated that his team was called 'Four Prods and a Taig' and he used this as an example of the culture of sectarianism which existed in the organisation.
4. Witnesses were called by the respondent who denied any knowledge of sectarian harassment. Several of them were Catholic and they gave evidence that they had no difficulties during their time in the T.A., while accepting that the sash was played on occasions they stated that they were not offended by this.
5. Mr Patrick gave evidence denying that the parade ground incident took place or that he would have used the words attributed to him in relation to the .IRA. He denied any sectarian approach to his service in the T.A. The tribunal balanced this evidence against that of the four witnesses for the applicant and found that such an incident did take place. The evidence of all these witnesses was consistent and we were convinced that they honestly remembered at least one incident of this nature.
6. The tribunal considered the evidence of Mr Kevin Halus in respect of sectarianism at that time. He denied ever having witnessed any sectarian incidents or name-calling. He told us how he had attempted to recruit Catholics to the T.A., although he did not appear to have had any success. Mr Halus also denied being present when the Christmas dinner incident took place giving evidence that he was dealing with another problem elsewhere on the camp at the time. The tribunal was not satisfied that Mr Halus at that time focused on equality issues and in this regard was mindful that the organisation in general, had not developed an effective equal opportunities system. In one particular aspect of the evidence, we found Mr Halus' evidence to be unbelievable and we found that it was perhaps indicative of the culture at that time. This related to Mr Greene who had the word 'token' printed on his helmet. He was a Catholic and he denied that this nickname referred to his religion in his own evidence rather claiming that it related to his being a character. The tribunal did not accept this explanation and when Mr Halus was asked about soldiers being allowed to have such names on their helmets he stated that he never looked above their eyes on inspection and, therefore, had not noticed the word on the helmet. It appeared from his evidence that he was reluctant to admit to anything which could have been perceived to have sectarian overtones. Another witness suggested that she thought that the word "token" related to "milk tokens". While such actions as the nickname on the helmet may have been meant in jest the tribunal found that there were issues which required to be addressed by the organisation at that time and which were indicative of the culture which pertained.
7. The tribunal considered the evidence of witnesses who denied any sectarianism in the organisation and contrasted that with the evidence of Mr Stephen Boyle who is a Catholic with a long history of T.A., membership – both in the applicant's area and before that, in Belfast. The tribunal agreed that Mr Boyle's evidence most accurately reflected the position at that time.

Mr Boyle did not join 211 Squadron until 1998 after the applicant made his claim to the tribunal. He found that 211 Squadron was religiously aware and sensitive and he confirmed that the applicant's case was discussed with him. He was, however, able to present a picture of difficulties during his earlier career and gave evidence of a sectarian assault against him while at camp in Germany. He told the tribunal that he had experience of sectarian songs being sung. He also gave evidence of approaching the applicant at camp to enquire of any difficulties which the applicant had experienced because of his religion. The tribunal found that the evidence that Mr Boyle contrasted with that of the other respondents witnesses who denied any sectarianism taking place and we found that this evidence lent credence to the evidence of the applicant in relation to the historical context of his claim, mindful as we were that he did not give evidence of sectarianism in 211 Squadron when he was there. We do not accept the evidence of the respondents' witnesses who denied that there was any sectarian conduct in the organisation.

8. Throughout the respondents conduct of the case, reference was made to "banter" taking place. It was suggested that the applicant was a joker who gave as good as he got and frequently participated in sectarian jokes and quips. The applicant gave evidence of the effect that the jokes with sectarian overtones had upon him and how he had informed Mr Ramsay and also

Mr Boyle that he intended to deal with them in his own way and hoped to make changes to the situation when he became a sergeant. This evidence was confirmed by both Mr Ramsay and

Mr Boyle in evidence. The tribunal found that because these activities were perceived by others as banter and because the applicant did not make a complaint about them, does not, in some way, negates their impact upon him. The tribunal understood that someone in a minority situation in an organisation would not necessarily wish to draw attention to himself by making an official complaint where he still had aspirations to progress to a higher rank. We accepted the applicant's evidence that he wished to be promoted in the Organisation because of his father's army background.

9. It was also suggested that it was the applicant who frequently initiated jokes with sectarian or political overtones. It was suggested that there were no other sectarian comments or actions by other members of the organisation. The applicant accepted in his evidence that he defended himself and reacted when such issues were raised but the tribunal was not convinced by the evidence of witnesses for the respondent that it was the applicant who initiated the sectarian incidents. We did not accept that the respondents' witnesses' evidence in the manner in which they portrayed the work place. Finally, in respect of this, the tribunal accepted the applicant's evidence that he was not responsible for creating the team name on the quiz night although he did not actively object to its use at the time and was not cross-examined about it. It was again, indicative of how the respondents' witnesses wished to place responsibility for such actions on the applicant and their evidence in respect of this was rejected by the tribunal.
10. The tribunal considered the evidence of two pipers who were called in relation to the playing of the sash. The tribunal accepted the evidence of Mr Lland who told the tribunal that he did play the sash at official functions and when he did so played a tune called 'the wearing of the green' as a counter balance. He gave evidence that this was part of the tradition of the organisation and was not intended to cause offence. The tribunal accepted that the evidence was fairly given and accurately reflected his understanding of the traditions. The evidence of the other piper, Mr Carnraith was that he refused to play the sash because he would not play 'the wearing of the green' as he objected to it. This witness also was disparaging about the applicant presenting his case to the tribunal and we had concerns about his appreciation of the validity of the Equality legislation. This highlighted to us the issues which can arise where something such as the playing of a tune with particular religions or political connotations is allowed in the work place and the interpretation which can be put upon it, even if it was traditionally being done.
11. In conclusion, therefore, in respect of this aspect of the claim the tribunal preferred the evidence of the applicant to that of the respondents' witnesses and accepted that during his time with the T.A., he was subjected to sectarian acts including the incident at Christmas 1997. The tribunal considered these findings in the context of the Equality legislation and the Equal Opportunities codes in place in the organisation at that time. The tribunal considered the documentary evidence supplied by the respondent starting with the Equality Opportunities Directive for Northern Ireland dated 15 October 1997 and an associated Equal Opportunities Policy Statement issued by Mr Humpherson in October 1998. These documents and the requirements that they contain were therefore not in force during the time of the applicant's complaint. The tribunal also heard evidence that equal opportunities training did not commence until March 1999. It is clear, therefore, that for the relevant period before us there was no effective Equal Opportunities Policy in operation and no training had been provided. There was no explanation given as to the respondent's failure to have such a Policy in place at an earlier date and the actions which the applicant complains of must be seen in the context of this lack of awareness of equal opportunities issues.
12. It was argued in submissions on behalf of the respondents that the respondents had complied with the provisions of Article 36 1 and 4 of the 1998 Order. The tribunal considered whether the respondents took any steps to prevent the sectarian acts complained of by the applicant and if so whether there were other steps which could have been taken. In the proceeding paragraph the tribunal have found that sectarian harassment did take place during the applicant's employment. We considered whether the evidence of the respondents indicated that they had taken steps to prevent such actions in the Organisation. It must be stated that the tribunal are mindful that our findings relate to the position at the time but before the hearing at the time before the tribunal. We noted from the evidence of Mr Boyle that changes did take place and that by the time that he joined the Organisation it was sensitive to equality issues which were discussed with him in the context of the applicant's case. However, we had to take into account the apparent lack of equality awareness which existed at the relevant time, the lack of any equality policies and particularly, the lack of equality training. We were not satisfied that at that time Mr Halus was actively addressing these issues. For these reasons the tribunal found that the respondents failed to establish that any steps were taken to address equality issues.
13. The second part of the applicant's case was that he was not promoted to the rank of sergeant and was therefore unlawfully discriminated against contrary to the provisions of Article 19(1)(b) of the Order because he was the best qualified and most experienced candidate for promotion. It was not his case that he should have been promoted but that he ought to have been considered fairly. There were six corporals in the applicant's troop. To be considered for promotion it was necessary to hold the senior military qualification. Off the six corporals only two held that qualification, the applicant who received this in 1992 and Mr Baird. It was common case that

Mr Baird was a "dad's army corporal Jones" type character who would not be suited to promotion. There had been two previous promotion opportunities to the rank of sergeant but the applicant was not considered on either of these occasions and Mr Ramsay and Mr Gilmore were promoted. While the applicant had considered these promotions to be unfair, he took no action in respect of them because those who were promoted at that time also had the necessary qualifications.

14. In early 1998 the troop was aware that a vacancy was going to arise as Mr Gilmore was to be moved. The applicant hoped to be promoted this time. However, as discussed earlier in this decision, he was informed by Mr Neely on 12 February 1998 that the promotion was going to

Mr Morrison even though he did not hold the senior military qualification which was the pre-requisite to promotion. The applicant was told that Mr Morrison was to be promoted and would undertake the then necessary qualification before the promotion was finalised. The applicant's evidence was accepted in relation to this incident which was denied by Mr Neely in evidence. In particular we accepted the applicant's evidence that had he not been told of his failure to be promoted he would not have walked out and subsequently taken his tribunal case. The tribunal also found that the applicant's evidence was confirmed by Mr Ramsay who had been approached by Mr Neely on that evening. We did not accept the evidence of Mr Neely that the applicant was merely told that the promotion was being considered but that others were performing much better. Had this evidence been accurate there would have been no urgency to tell the applicant of this on the day that the discussions between Mr Halus and Mr Neely took place. Mr Neely returned from discussing promotions with Mr Halus, informed Mr Ramsay of what had taken place and Mr Ramsay was instrumental in ensuring that the applicant was informed. Mr Ramsay was a close friend of the applicant who was aware that the applicant was hopeful of obtaining this promotion. A mere comment to the applicant that others were performing better would not have been seen by Mr Ramsay as needing to be disclosed to the applicant so urgently. For these reasons, we reiterate our earlier findings that the applicant was told that he was not to be promoted. It is this finding which was one of the most significant aspects of the case because, firstly, it showed that a decision not to promote the applicant was taken in February 1998 and secondly, disclosed that the respondents witnesses did not accurately state the position in their evidence to the tribunal.

15. In February 1998, when the promotion opportunity became known, there had been in place a long-standing procedure whereby promotions were decided by Mr Halus on the recommendations of either Mr Ramsay or Mr Neely in respect of promotion of lower ranks. The applicant was confident that holding the senior military qualification at that time and with the likelihood of Mr Baird not being considered meant that he would be the only one to be considered for promotion. The applicant gave evidence that normally if a promotion vacancy arose and a number of a lower rank met the necessary qualifications they would be promoted. The applicant gave evidence that this had happened to him on his promotions from lance corporal to corporal and also to lance corporal. There was no history of a board considering applications. The applicant also gave evidence that he had acted up to the rank of sergeant at camp and performed the duties of sergeant. The applicant gave evidence that he had recently completed his MT Management Course which he was told would be a feather in his cap regarding promotion. He was then told that he was not to be promoted. The applicant accepted that his attendance had dropped off near the end of his time in the T.A. However, he stated that this was due to his having been passed over for promotion and he gave evidence that he still did all the necessary courses to receive his annual bounty payment. It was common case that he had been allowed to complete short camps due to ill health in his family. The applicant gave evidence that throughout his time in the T.A., he was never spoken to about his efficiency or about any failure to make an effort and this was not challenged by the respondents witnesses.
16. The tribunal heard evidence from the respondents that there was no promotion vacancy in February 1998 because the vacancy had not yet arisen. However, both Mr Halus and Mr Neely accepted that the prospect of promotion was discussed between them on the night of 12 February 1998, therefore, while it was argued that no promotion existed and technically this was so, it did not prevent Mr Halus and Mr Neely deciding who was to be promoted when the vacancy arose. Therefore, while the promotion did not come into effect until October 1998 on its ratification by Mr Humpherson it was decided in February 1998 in the way that these matter had always been decided namely by Mr Halus on recommendation by Mr Neely.
17. The respondents argued that the applicant was not suited to be promoted to sergeant. Particularly, it was stated that while he had the senior military qualification he had achieved only a pass in this and not a higher mark. This was contrary to the applicant's evidence that he had been told that it was a very difficult course and that a pass in it was sufficient. The respondents argued that Mr Morrison's scores when he did the sergeant's qualification were better. He completed the course in May 1998. The applicant argued that by then Mr Morrison knew that he was to be promoted and was therefore motivated to perform well. We accepted the applicant's evidence that in the past the successful person was called in and told of their promotion and having found that the decision was made in February 1998, we found that it was more likely that Mr Morrison would have been informed of this promotion and this would have had an effect on the effort which he made to obtain his senior military qualification.
18. The respondents argued that it was decided this time to widen the field of choice and that this was why the applicant was not promoted in the manner that had taken place previously. Throughout the case the applicant's evidence was that if there had been others who were qualified when the decision was made he would have accepted that a choice had to be made between them. However, at the time the decision was made the only other person with the qualification was Mr Baird. The applicant argued that when the others were not qualified they should not have been considered.
19. It was accepted by the respondents that the promotion procedure described by the applicant had existed in the past but that Mr Halus had decided to change the manner of the appointment s to widen the field. There was a dispute between two of the respondents witnesses Mr Halus and

Mr McBride as to who had developed the new promotion procedure. There was no training for the members of the panel and no prior warning to them that they would be required to sit on a panel. There was no notification to the prospective candidates that this procedure was to be adopted and this procedure was introduced after the applicant had submitted his Originating Application to the tribunal and had not attended for several months. The Board consisted of

Mr Halus, Mr McBride and Mr Patrick. All six corporals in the applicant's troop were considered. He was the only Catholic. By this time Mr Morrison had obtained his senior military qualification as had Mr Cole and Mr McClements. The Board considered all other lower ranks promotions. Not just those of sergeant. Mr Morrison was promoted to sergeant as a result of the recommendations of this Board to Mr Humpherson in October 1998. It was necessary for the promotion to be ratified by Mr Humpherson before it could take effect.

20. Finally, in relation to the promotion Board it was noted that Mr Morrison was not the preferred candidate of either Mr McBride or Mr Patrick both of whom scored Mr Reilly the highest before Mr Morrison. However, Mr Morrison was appointed. The explanation for this was that

Mr Reilly was too young to be appointed. The tribunal found it difficult to accept that a promotion procedure would consider someone who was actually not going to be eligible to be appointed. The decision in relation to this was taken by Mr Halus the only member over the Board not to vote for Mr Reilly. The tribunal found this to be further indication of the flaws which existed in the whole promotion procedure.

21. The tribunal having considered the totality of the evidence found that the evidence of the applicant's witnesses was preferred to that of the respondents. We found in respect of the incident on 12 February that the applicant's evidence and that of Mr Ramsay accurately described the events of that evening culminating in the conversation between the applicant and

Mr Neely as set out earlier in this Decision. We found that this together with the long-standing harassment which the applicant suffered and the incident at the Christmas dinner motivated the applicant to approach the Equality Commission and submit his application to the tribunal. We found that subsequent to these events, Mr Morrison undertook the necessary course to become a sergeant the decision to promote him having already been taken. We found, therefore, that the applicant suffered less favourable treatment because the decision was taken not to promote him at a time when he was qualified to be selected and the candidate who was selected was not so qualified. We found that the procedure adopted operated unfairly against him in that he was not told that he should endeavour to improve his performance if that was necessary, rather he was removed from the selection before Mr Morrison's ability to pass the necessary test had been proven. The senior military qualification was a necessary qualification for appointment to sergeant and it must have been unfair to the applicant if he had this qualification and yet was rejected before the person who was selected had been tested in this area. The applicant made it clear at the hearing that he did not object to being tested with others who had the same qualifications as himself as had happened previously. What he did object to and where the unfairness lies is that there was no equality of treatment and he was rejected prematurely. The tribunal were mindful of the guidance given by the Lord Chief Justice in the case of The Royal Ulster Constabulary and Assistant Chief Constable A H and Sergeant A 2000 NI at page 261 which sets out observations about the way tribunals should approach cases such as this. Having firstly found that the applicant suffered less favourable treatment the tribunal had to proceed to consider on the evidence whether the treatment was on the basis of his religion bearing in mind that such treatment may be for other reasons. We were aware that an inference of religious discrimination should not be lightly drawn. Like many cases there was no evidence of actual discrimination, none of the respondents witnesses gave direct evidence of active discrimination or an intention to discriminate. The tribunal therefore consider the circumstances of the applicant's case and that of Mr Morrison to establish whether an inference should be drawn.

22. The tribunal found that both the applicant and Mr Morrison were corporals of long-standing. The respondents argued that Mr Morrison was the better candidate for promotion, in short that he was the better all round soldier based on the assessment of the members of the Interview Panel. It was difficult for the tribunal to accept that the applicant was the worst soldier in the assessment even behind Mr Baird given the history of his qualifications. The explanation that the applicant came so low in the assessment because he had not attended since February 1998 compounded for us the unfairness of the manner in which this selection took place where the applicant could never have achieved a credible mark given that the situation in which he found himself at that time. This evidence has to be balanced against our findings but the decision was taken before the successful candidate was qualified. It was also taken in a manner which resulted in the applicant's immediate withdrawal and claim to the tribunal. The applicant also made a complaint to Mr Halus about Mr Neely's comments. Therefore, in all these respects and immediately after the incident, the applicant acted consistently. We also took into account the fact that had the procedure been left as it had been before the applicant would have been the most likely candidate for promotion. It was argued that it was an attempt to attract the right person which resulted in the Board system being introduced. The tribunal considered that the change to a Board system was not unfair and indeed could have resulted in a fairer outcome than previously had it been introduced with training of the members, notification of the candidates for consideration and not after a decision had already been taken. It was accepted by the respondents witnesses that equal opportunity issues were not in the minds of the respondents until after the applicant submitted his Originating Application. It therefore seemed at least to be a strange coincidence that having received the applicant's Originating Application these changes were all introduced in a rushed and haphazard way and with Mr Halus being aware of the allegations made by the applicant against Mr Neely that the promotion decision had already been made. The tribunal were forced to return to the discrepancies in the evidence of Mr Halus and Mr Neely and that of the applicant and Mr Ramsay regarding the events of 12 February to which we keep returning but which are central to the determination of this case. The tribunal found that those events followed by the applicant's tribunal application and his allegations against the respondents coloured the respondents actions in relation to the promotion procedure. While it is not open to the tribunal to merely speculate on motives and we found that the facts as set out above lead us to draw the inference but the applicant failed to be fairly considered for the post of sergeant because of his religion. The tribunal therefore found that the applicant had been unlawfully discriminated against by the respondents contrary to the provisions of Article 19(1)(b) of the 1998 Order.

Chairman:

Date and place of hearing: 12-16 August 2002, 18-20, 25-26 November 2002, 6 January 2003 and 10 February 2003 in Belfast.

Date decision recorded in register and issued to parties: