Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 402/04 FET

CLAIMANT: Philip Crawford

RESPONDENT: Chief Constable of the Police Service of Northern Ireland

DECISION

The unanimous decision of the Tribunal is that the claimant was not discriminated against on the ground of his religious belief or political opinion.

Constitution of Tribunal:

Chairman: Mr D Buchanan

Members: Mr J Collins

Mr M Roddy

Appearances:

The claimant appeared in person.

The respondent was represented by Ms N Murnaghan, Barrister-at-Law, instructed by The Crown Solicitor's Office.

1. The claimant is a Constable in the Police Service of Northern Ireland (PSNI). He has been a police officer since joining the Royal Ulster Constabulary GC (RUC) in 1983.

By an application presented to the Fair Employment Tribunal on 19 September 2002, he complains that he has been discriminated against on the ground of his religious belief and political opinion by the respondent. The claimant is a Protestant, and his perceived political opinion would be Unionist.

2. The claimant's case revolved around the introduction of a new uniform for the PSNI, which replaced that previously worn by members of the RUC. He alleged that as a result of the provision by the respondent of a new uniform comprising the colours green, white, and gold, he was subjected to discriminatory treatment by being required to work in an environment which he found offensive.

3.	(i)	In order to determine this matter the Tribunal heard evidence from the claimant. It heard evidence from Mr Gordon Miles (former Superintendent, PSNI), Mr Andrew McGuigan (a serving Superintendent, PSNI), Mr Colin Ashe (former Acting Principal, Force Supplies Officer), Mr Michael Murray (Technical Research Officer, PSNI) and Mr Alan McQuillan (a former Assistant Chief Constable, PSNI, who was Programme Director for the Uniform Project). The Tribunal also had regard to the documentary evidence submitted by the parties and referred to in the course of the proceedings.
	(ii)	The relevant applicable law is set out in the Fair Employment (Northern Ireland) Order 1998, Articles 3 and 19, as amended by the Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003. In applying the law on discrimination Courts and Tribunals are required to have regard to the so-called Barton guidance (see Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332 EAT, approved by the Court of Appeal in England and Wales in amended form in Igen Ltd (formerly Leeds Careers Guidance) and Others v Wong; Chamberlain Solicitors, and Another v Emoxpae, Brunel University v Webster [2005] IRLR 258)
	(iii)	The Tribunal finds the facts set out in the following paragraphs.
4.	(i)	The Patten Report on Policing in Northern Ireland proposed new policing structures in the Province. This led to the reconstituting and renaming of the police force as the Police Service of Northern Ireland. The PSNI, among other changes, was to have a completely new uniform, replacing that of the former RUC. The design, adoption and provision of the new uniform was a huge logistical exercise. For example, the procurement costs for material alone was £8m. The exercise had to be carried out urgently, within the timeframe laid down for police reform, and against the background of an existing organisation which was in a state of flux.
	(ii)	It appears that there had always been a uniform committee in existence within the former RUC. Mr Miles had been secretary of that committee. Following the Patten Report, he was directed to chair a uniform sub-committee, which would produce recommendations for a practical uniform for policing. This uniform sub-committee, which was made up of all ranks and sections of the force, and which included representatives of the Police Federation, held regular meetings against the background of the fluid situation to which reference has already been made.
	(iii)	Mr Miles was someone who had always taken an interest in uniforms. He seems to us to be someone who adopted a very rational approach. He felt that in the past changes to the police uniform had been hindered by conservative and traditional attitudes. He saw Patten's proposals as an opportunity to get a practical uniform, suitable for everyday policing, for example in the context of cross-country policing, or in the circumstances which obtained in some border areas, where much patrol work involved boarding and alighting from helicopters. Among other matters which he had in mind was that RUC officers had never worn a badge on their shirts or uniforms, and unlike other UK or international police forces, their garments did not have a strip with the word 'Police' on them. Another important factor in the debate about a new uniform, and one which was highlighted by the respondent's witnesses, was that it provided an opportunity to get a uniform which did not differentiate between officers on the basis of their sex and rank, as had been the case in the RUC.
5.	(i)	The members of the uniform committee looked at the proposed uniform on an almost daily basis. Ultimately the colours proposed were green (eg pullovers/tunics) white (eg shirts) and gold (eg 'Police' strip across police garments, and sergeants' chevrons). The gold strip was chosen for reasons of colour co-ordination or aesthetic reasons. It was felt that it stood out particularly well against green. Historical reasons also came into play. Gold had featured on the RUC cap badge, albeit on a much smaller scale, and the dress uniform of female sergeants in the former RUC had been a combination of green white and gold. The Police Federation was also keen to preserve the combination of green white and gold (chevrons) in the PSNI sergeants' uniform.
	(ii)	Road shows were held, at which Powerpoint presentations were given, and proposed uniforms (comprising some 30 – 40 items) were modelled. At the road shows, Mr Miles, mindful that the introduction of a new uniform against the background of extensive change was controversial, made specific reference to the colour combination of green white and gold, and pointed out that these had been the colours of female sergeants' dress uniform in the RUC. The proposed choice of colours was not raised by officers at the road shows and was not therefore seen as an issue. Any controversy surrounding the uniform related to the proposed baseball cap and whether or not ties should be worn. Some of the criticism of the former was quite scathing. Mr McQuillan, who as ACC went round police stations in his command area on a regular basis, encountered no criticism of the proposed colour combination.
	(iii)	In addition, the road shows were backed up by surveys and a force questionnaire which were assessed by independent statisticians. The main issues raised by members were in relation to the proposed jumpers, which were felt to be too cold. There were also issues about their flame retardancy. Of 12,000 officers surveyed, somewhere in the region of 3,000 – 4,000 responded and 40 of these raised the issue of the colour of the uniform. This figure is not statistically significant in view of the level of consultation carried out.
6.	(i)	While the choice of colours of the new uniform was a matter for the police service, devising a badge for the force was the responsibility of the newly created Policing Board. The formation of the Policing Board had been delayed, so the new garments had to be ordered without knowing what the badging would be.
	(ii)	Ultimately a new badge was devised around December 2001. April 2002 was the date for the introduction of a new uniform. The new badge, or crest, was largely silver and white in colour. The proposed silver on the badge and the gold strip on the newly designed uniform clashed – in the words of former ACC McQuillan, "silver and gold beside each other looked awful".
	(iii)	The matter was referred to the then Chief Constable, and a decision was made to switch to a silver strip instead of gold. However, as garments had already been ordered (for example, the number of jumpers ordered was in the region of 25 – 30,000) it was decided that as existing pullovers with gold strips became worn out, they would be replaced by ones with silver strips. This did not in fact happen as quickly as anticipated, for the life span of the pullovers turned out to be longer than expected.
	(iv)	We find that the change from gold to silver was not made for any 'political' reason, for example because of a belated realisation following complaints that the green/white/gold colour combination was offensive. Nor was it made, as suggested by the claimant, because of pressure from the Police Federation, who in any event wanted to retain gold on the dress uniform. We are satisfied that the decision to change from gold to silver was made for purely aesthetic reasons. This has been emphasised clearly and concisely by the respondent's witnesses, and we accept their evidence in this regard. We are also satisfied from the evidence of Mr Ash that there were compelling logistical reasons, including reasons relating to practicality, cost, and the security of officers explaining why, as an interim measure, silver strips could not be sewn over the existing gold ones.
7.	(i)	The claimant's complaint about the uniform is that he found the colour scheme extremely offensive, and contrary to all policies within the Police Service which had been designed to promote neutrality and good working relations. He alleged that "the colour scheme has become directly representative of Sinn Fein and the Irish Republican Army".
	(ii0	We accept the evidence of Mr Miles and former ACC McQuillan that the choice of the colour gold in combination with green and white had not been decided upon as an act of appeasement. They were both highly experienced police officers, and rational and reasonable men. Like the claimant, they had known police colleagues murdered by IRA terrorists, and would have been no less likely than the claimant, or any other law-abiding person, police officer or not, and irrespective of community background, to have been angered and distressed by such events.
8.	(i)	In this case the claimant has not identified any named comparator. If a hypothetical Roman Catholic police officer of Nationalist background is taken as the comparator, then it has not been shown that such an officer would have been any less offended than the claimant was by the choice of colours.
	(ii)	We do not doubt the sincerity of the claimant's views, nor do we think that he himself is acting from any political motivation. We have no reason to doubt him when he says that he accepts that changes in policing were inevitable, that he believes there should be a police force acceptable to the whole community, and that there should be a neutral working environment where people of all walks of life can work together in harmony.
	(iii)	While subjectively, the claimant honestly believed that there was an offensive working environment, we consider, having regard in particular to the overall minimal lack of reaction to the colour combination, that he is oversensitive.
	(iv)	It also has to be said, that notwithstanding the honesty and sincerity of the claimant's beliefs, he has not been altogether consistent. He did not object to gold on the PSNI dress uniform, or on the Gortex coat. He also sought to minimise any suggestion that green/white/gold existed as a colour combination in the uniform of the former RUC. Additionally, when it was put to him by the respondent's counsel that his objection to green white and gold was unfounded in that the colours of the Republic of Ireland and its tricolour were green white and orange, he stated that he had noted that Sinn Fein were moving towards gold (as opposed to orange) and produced some recent Sinn Fein election literature which he claimed was indicative of this tendency on their part.
9.	(i)	We are satisfied that the claimant was not unlawfully discriminated against by the respondent on the grounds of his religious belief or political opinion. Indeed, we have not found any facts from which the tribunal could infer that the respondent had committed an act of unlawful discrimination. We therefore dismiss his claim.
	(ii)	The respondent made an application for an Order for Costs against the claimant. The basis of the application was that the claimant's application to the tribunal was misconceived, and that in bringing and conducting the proceedings he had acted unreasonably. Having considered this matter, and having regard to all the circumstances of the case, we have concluded that it is not appropriate to make such an Order.

Chairman:

Date and place of hearing: 5 – 9 December 2005, Belfast

Date decision recorded in register and issued to parties: