Fair Employment Tribunal Northern Ireland Decisions

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Cite as: [2006] NIFET 406_, [2006] NIFET 00406_00

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FAIR EMPLOYMENT TRIBUNAL

CASE REF: 00406/00FET

02410/00

CLAIMANT: Joseph Edward Gibson

RESPONDENTS: 1. Police Authority for Northern Ireland

2. Inspector J M O'Grady

3. Sergeant J E D McIlwrath

4. Chief Constable of Royal Ulster Constabulary

DECISION

The unanimous decision of the Tribunal is that the decision to transfer the claimant from the RUC Motor Transport Depot was unlawful discrimination on grounds of religious belief. The second and third respondents are dismissed from the proceedings. The tribunal will reconvene to consider the appropriate remedy.

Constitution of Tribunal:

Chairman: Mrs M Watson

Members: Mrs D Adams

Mr I Foster

Appearances:

The claimant was represented by Mr B McKee Barrister-at-Law, instructed by John Boston & Co., Solicitors.

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

Issues for Determination –

(i) Whether the claimant was directly discriminated against when he was

transferred from the Royal Ulster Constabulary (hereinafter referred to as RUC) Motor Transport Depot while Reserve Constable Scates was retained.

(ii) Whether membership of the Masonic Order is a religious belief within the meaning of the Fair Employment and Treatment (Northern Ireland) Order 1998.

(iii) Whether the application is within time and if not, whether it would be just and equitable in all the circumstances to extend the time for lodging the application.

Assertions of the Parties –

The claimant was a Constable in the R.U.C. Reserve employed as a driver in the Motor Transport (hereinafter referred to as 'M.T.') Depot. In late September 1999, because it had been decided to transfer the function of prisoner escort to the Northern Ireland Prison Service, a reduction in the establishment (or staffing levels) of the M.T. Depot was required. As service in the Depot was generally favoured, the planned reduction was not welcomed by the officers.

From an initial forecast of twenty officers, the reduction was progressed by various means so that by 1 November 1999, six officers remained to be selected for transfer from the Depot. By the end of that day, five officers, including the claimant were identified and subsequently notified that they were to be transferred. The claimant alleges that this decision to transfer him was an act of unlawful direct discrimination in that he believes that he was better trained than Reserve Constable Scates, his comparator, and therefore more suited for retention.

The claimant alleges that Reserve Constable Scates was retained because:-

(a) he was a member of the Masonic Order and

(b) he was vehemently opposed to -

(i) the Good Friday Agreement,

(ii) political power-sharing in Northern Ireland,

(iii) the participation of Sinn Fein in any political process,

(iv) the Parades Commission,

(v) the reform of the Police in Northern Ireland, and

The claimant further alleges that membership of the Masonic Order is a religious belief within the meaning of the Fair Employment and Treatment (Northern Ireland) Order 1998.

Sergeant McIlwrath, the third-named respondent, is also a member of the Masonic Order and is alleged to share the above political opinions.

At the material time, Sergeant McIlwrath was Operation Planning Sergeant in the M.T. Depot. As such he was responsible for the daily allocation of duties in the Depot and therefore familiar with all the officers affected by the reduction, i.e. their qualifications, experiences, abilities and qualities that would make them more-or-less suitable for retention. Sergeant McIlwrath had been with the M.T. Depot for some eighteen years at this time.

Even though the second-named respondent, Inspector O'Grady, was the senior

officer in the M.T. Depot, the claimant alleged that with regard to the day-to-day running of the M.T. Depot, Sergeant McIlwrath's word was law. He alleged that during the process of deciding who was to be retained, Sergeant McIlwrath would have had an input and used that input to ensure that the comparator, Reserve Constable Scates, who shared his religious belief and political opinion, was retained rather than the claimant.

The claimant lodged an internal appeal against the decision to transfer him out of the M.T. Depot. He was unfit to attend the proposed hearings. While on sick leave, the claimant's application for a further extension of his service beyond age sixty was refused because of his poor attendance record. His service ended on 17 June 2000.

The respondents deny that the claimant was more suitable for retention than the comparator. They allege that both men were qualified to drive the same categories of vehicles and that the comparator was more suitable for retention and better qualified than the claimant in that he had been trained to participate in Public Order duties while the claimant had not.

The claimant, Sergeant McIlwrath and the comparator are all Protestant. The respondents deny that membership of the Masonic Order is a religious belief and deny that there is any real difference in the political opinions they hold as alleged.

With regard to the selection process, the respondents maintain that Sergeant McIlwrath had little input or involvement in the process. Inspector O'Grady is a Roman Catholic who is not a member of the Masonic Order and does not share the political opinions allegedly held by the third respondent. The respondents claim that the criterion of public order training was an essential criterion and was applied as part of a fair selection process.

Sources of Evidence

The tribunal heard oral evidence from the claimant and his witness Sergeant Karl Lipsett, his former line manager, who had also made a statement on his behalf during the appeal process. Both made witness statements and were cross examined.

For the respondents, oral evidence was given by Inspector O'Grady, the second respondent, Sergeant McIlwrath, the third respondent, Superintendent Kearney of Road Policing, Reserve Constable Scates, Inspector McCune of Career Management who had all been involved in the selection process, and Constable Erwin from the Traffic and Driver Training Unit who had been the claimant's driving instructor. They too had provided witness statements and were cross examined.

The tribunal was also provided with written statements from other officers who had dealt with the claimant's appeals against transfer and service extension refusal. Their evidence was not disputed by the claimant, so their oral evidence was not heard by the tribunal.

The documentation available was copious; we had ring files from both sides and another file of respondent's witness statements, two sets of submissions from both counsel and a leaflet published by the Grand Lodge of Ireland for candidates, provided by Mr Scates. In total, the tribunal had almost 1000 pages of documentation.

In spite of the volume of material available to the tribunal, there was no evidence available from Chief Inspector Wilkinson, one of the persons from whom the inclusion of the disputed criterion of public order training emanated. The tribunal was informed that he is ill, but no medical report was provided. Witness statements had been ordered at the Case Management Discussion on 1 November 2005. Those from the respondents' witnesses were dated March 2006, several months after that ordered by the tribunal. No indication was given as to when this person became ill. We were informed, by way of questions posed by Counsel for the respondents of another witness, that Chief Inspector Wilkinson has heart problems and is not a member of the Masonic Order. The tribunal did not regard this situation as satisfactory and shall return to it later.

It was also noticeable that most of the witnesses had great difficulty recalling events that took place over six years ago. They had to rely on the documentation before the tribunal to refresh their memories and were seldom able to recall any of the meetings or decisions referred to. In addition, it was evident to the tribunal that the central issue in the case was very contentious and had generated bad feeling among the witnesses. These matters contributed to making an already difficult task even more so.

Preliminary Findings

At the conclusion of the claimant's case, Mr Ritchie, Counsel for the respondents asked the tribunal to rule on three matters:-

(i) Whether the application had been made within time or, if not, whether, in all the circumstances, the tribunal considered it just and equitable to extend time.

(ii) Whether a prima facie case of discrimination had been made out against the second respondent, Inspector O'Grady.

(iii) Whether a prima facie case had been made that the Masonic Order is a religious belief for the purposes of Article 3 of the Fair Employment and Treatment (Northern Ireland) Order 1998.

Both Counsel made written and oral submissions on these issues. After consideration, the tribunal found that the application was out of time.

The tribunal then took into consideration the following factors:-

(i) The respondent accepted that they had been caused no prejudice by the delay.

(ii) The claimant had no other forum in which he could seek a remedy for his claim of religious discrimination.

(iii) The claimant was suffering from a severe depressive illness for some time after the acts of alleged discrimination.

(iv) The claimant's assertion that he was reluctant to "take on" either or both of the Royal Ulster Constabulary and the Masonic Order. He delayed making the claims of unlawful discrimination until after he had exhausted his alternative internal appeals.

(v) The respondents were not prejudiced in their ability to respond to the complaint by the delay.

After consideration of the above, the tribunal extended the time limit for the presentation of the claim on the grounds that it was just and equitable in all the circumstances to do so.

The tribunal refused to dismiss Inspector O'Grady as a named respondent or make any ruling with regard to any weakness in the claim at that stage.

Findings of Fact

The claimant who is now sixty six years old joined the RUC Full Time Reserve in 1985. In 1993, he applied for a post of Driver at their Motor Transport Depot. At that time, the essential criteria for selection to that post included the successful completion of a four week driving course provided by the Force Training Unit.

The RUC's classification and authorisation of drivers is contained in Force Order

No. 59/98. This states, at Paragraph 3(1), that no-one may drive a police vehicle unless, in addition to a current driving licence, they have a valid authorisation card issued by Force Transport Branch.

These authorisation cards show the category of vehicles the holder may drive ranging from Large Goods Vehicles to Motor Cycles. In addition, the Force Order defines, at Paragraph 4(6), three categories of drivers -

(i) Test Only Driver – has passed a police driving test.

(ii) Standard Driver – has also completed a four week driving course at standard level.

(iii) Advanced Driver – has completed the standard course and a further four week course at advanced level.

Paragraph (7) then states -

"Supervisory ranks are reminded that when detailing driving duties, only the best trained drivers available should be used".

As stated above, the claimant was employed as a Driver. His comparator, Reserve Constable (R/Con) Scates, was appointed to the M.T. Depot as an Escort in or about 1991 when he had been in the Full Time Reserve some five years. This had included an earlier period of eighteen months in M.T. Depot. Escorts did not have to meet any driving criteria as their duties were mainly to provide armed escort to drivers. Both the claimant and R/Con Scates however, were authorised to drive the same categories of vehicles. The relevance of these facts will feature largely later.

In late September 1999, it was decided that the performance of prisoner escort duties would be transferred to the Northern Ireland Prison Service in or about October 1999. This removal of one of its duties would result in a reduction in the number of officers required by the M.T. Depot.

In a letter dated 23 September 1999, Chief Inspector Harvey of Human Resources Planning wrote to Chief Superintended Houston, Head of Traffic Policy, to confirm the establishment would be reduced by twenty officers from 25 October 1999. (The figure was reduced to fifteen soon after.)

The letter states that -

"Career Management will liaise with Inspector O'Grady regarding the selection and movement of personnel". (emphasis added)

They, Career Management, were also to advise Human Resources Planning of the officers "selected" so that establishment adjustments could be made. (emphasis added.)

The letter was copied to Inspector McCune of Career Management by her senior officer, Chief Inspector Wilson, who tasked her with progressing the matter. Inspector McCune had no background in Personnel matters and, at that time, had been in Career Management some ten months. She could not remember whether during that time she had been given any Equal Opportunity training on Recruitment and Selection.

That same day, 23 September 1999, Inspector McCune was unable to contact Inspector O'Grady with whom she was to liaise. She was informed that Inspector O'Grady was on leave and that Sergeant McIlwrath was deputising but he, in turn, referred her to Chief Inspector Wilkinson.

Staffing at the M.T. Depot consisted of almost seventy officers. One document before the tribunal noted the following breakdown:-

Sergeant Constable Reserve Constable

Despatches 2

Drivers 3 18 36

M.T. Escorts 7

Ops. Planning 1.

Documentation was produced which set out the constant daily duty requirements of the depot. The tasks performed by the M.T. Officers over several months from January 1998 to May 1999 were tabulated. A wide range of tasks was included in the tabulation, even 'football' and 'choir', but Public Order duties did not feature.

On 4 October 1999, a meeting took place to ascertain how the required reductions in staff could be achieved. Those present were:-

(i) Superintendent Kearney, Road Policing Development Branch, who chaired most of the meetings in this process and who was responsible for liaising with more senior ranks.

(ii) Chief Inspector Wilkinson, Transport Liaison Officer (to whom Inspector O'Grady reported).

(iii) Inspector O'Grady.

(iv) Sergeant McIlwrath.

(v) Inspector McCune.

No minutes were taken at this or any other meetings during this process.

In her evidence, Inspector McCune said that M.T. Depot informed the meeting that there was no basis for differentiating between the officers in the depot as they were equally qualified. It was decided that volunteers for transfer would be requested and that random selection would then be used. The tribunal were surprised by both these decisions.

It was ascertained that the depot was under strength by three officers, two other officers volunteered for transfer and another officer was being considered for medical retirement. Following this meeting the reduction required was nine officers.

Chief Inspector Wilkinson wrote to Superintendent Kearney on 8 October 1999 confirming that nine transfers were required, two Constables and seven Reserve Constables. It is not clear when, by whom or on what basis this division was decided. He also requested that "Personnel Branch be asked to advise as (to) what system/criteria should be used … bearing in mind Equal Opportunities etc".

Inspector McCune responded to this request by Memorandum dated 11 October 1999 advising that the Equal Opportunities Unit recommended that random selection should be used to achieve the required reduction and that an independent person such as a Police Federation Representative would be "responsible for selecting the remaining officers". The tribunal accepted her evidence that she consulted the Equal Opportunities Unit on this and other occasions during the process.

On that date, 11 October 1999, Inspector O'Grady produced a report setting out the vehicles to be driven by staff of the depot and the details of the driving qualifications of the current staff. This was discussed between Superintendent Kearney, Chief Superintendent Houston (Traffic Police) and Inspector O'Grady at a meeting on 15 October 1999.

Following this meeting, Superintendent Kearney informed Inspector McCune that "job and skills related criteria" would be applied. Three criteria had been identified:-

(i) Motorcyclists (Class 7) for dispatch duties.

(ii) Drivers holding Class 1 licence.

(iii) Drivers holding PCV licence.

Those officers remaining were to be included in two separate random selection processes (one for Regular Constables, one for Reserve Constables) for transfer out of the depot.

When Inspector McCune examined the information supplied, she was able to identify three Reserve Constable Escorts who were least qualified in terms of driving entitlements. She suggested to Superintendent Kearney that these three should be automatically transferred. This was agreed by the Equal Opportunities Unit who advised that the remaining twenty three officers, (seven Constables and sixteen Reserve Constables) would be in the random selection processes for transfer out of the Unit.

The tribunal found it surprising that Inspector McCune was able to identify job related criteria for selection for transfer when officers from the relevant section said they were unable to do so.

The Police Federation Representative for the constables in the M.T. Depot met with Inspector McCune on 25 October 1999 and informed her that the Federation was concerned that it had not been consulted with regard to the reduction in staff of the depot. In addition, the Federation was dissatisfied with random selection on grounds of fairness and because officers holding strong religious/Christian beliefs would be offended as they viewed that process as a form of gambling. As a result, the Federation had taken legal advice and were considering a judicial review.

Later that day, the Police Federation representative also raised with Inspector McCune the concerns of two officers one of whom was the claimant. His concern related to the four remaining Reserve Constables who were employed as escorts and who had not sat 'boards' for entry to the Depot. Inspector Mc Cune's initial response was that if this was correct, these four officers would transfer out, leaving two Regular Constables for selection. She sought clarification on this point.

In his response, Inspector O' Grady provided details of these four officers and the three other escorts. He advised that some long serving Regular Constables had not sat boards either. He added that apart from two of the escorts already identified by Inspector Mc Cune as least qualified and to be transferred, the other escorts were "used as drivers". No indication of the extent to which any were so used was provided.

Chief Inspector Wilkinson also addressed this point to Chief Superintendent Houston of Road Policing. He stated; "…It could be argued that escorts were accepted for another purpose and should not be included in the process. …Having said that however, it is an advantage at the M.T. Depot if the escorts are also capable of driving duties."

Again, no information is provided of the actual driving done by the escorts or their performance of those duties compared to other officers. Mr Scates's evidence was that he drove 'from time to time' while at the M.T. Depot.

On 29 October 1999, Chief Inspector Wilkinson again wrote to Chief Superintendent Houston to advise that Inspector O'Grady had revised the lists to exclude Class 2 drivers. He goes on, "…It could be argued that advanced driving category should take precedence over standard driving course or test only." This is the first, and only, reference to the classification of drivers in Force Order 59/98 in this process.

The tribunal were very concerned to find that the senior officers in M. T. Depot were only beginning, at this late stage in the process, to provide information regarding the driving qualifications of their officers while at the same time providing reasons for departing from objective criteria set out in the Force Order and failing to provide any detail of the driving experience or abilities of officers.

It was clear from her oral evidence that Inspector Mc Cune found these officers less then helpful to her in her efforts to progress this process. She had not been provided with the tabulation of the daily duties of the depot, the table showing the organisation of the depot, the fact that there were differences between drivers and escorts or that the essential criteria for their appointment were different. The information given to her was often misleading and/or wrong.

The tribunal also find that the involvement, assistance or guidance that she should have been given by her senior officers or the Equal Opportunities Unit was lacking.. This was the first time Inspector McCune, or indeed the RUC, had been involved in a downsizing exercise. She had only been in her post for 10 months yet she was tasked to progress a difficult and contentious process while she was "…unsure of (her) place or role" in it. Indeed, even though it had been identified as a selection process by Chief Inspector Harvey on 23 September 1999, Inspector McCune used the Force Transfer Policy as her guidance. This was the only policy provided to this tribunal. When asked why the Recruitment and Selection Policy had not been used or provided to us, Mr Ritchie asked why the tribunal considered it relevant. The tribunal found this surprising.

Inspector Mc Cune described her role as she had seen it to the tribunal as follows, "To make sure that M.T. Depot reduced their establishment by 15 posts, working in consultation with M.T. Depot and Road Policing and trying to do it in a way that ensured M.T. Depot retained people with the skills and driving qualifications that ensured the depot operated efficiently and effectively". The tribunal found that this was a fairer description of her efforts in this process than those of her colleagues.

On 1 November 1999, Inspector Mc Cune met with Superintendent Kearney at 9 a.m. The list before them at this meeting now excluded Class 2 drivers. Superintendent Kearney's intention at this meeting (as noted by Inspector McCune) was to ask Chief Inspector Wilkinson for "… any other relevant criteria in relation to driving classifications which would separate the officers further". (emphasis added)

They met again at 2 p.m. and were joined by Chief Inspector Wilkinson, Inspector O'Grady and Chief Inspector Wilson. Inspector McCune noted that "M.T. have produced a list of names whom they have identified as the least qualified (5 R/Consts.) They are to forward the documentation to Career Management type written + in report form outlining the rationale. It will then be made available to PFNI for their views. If they are satisfied with the selection procedure, the 5 identified will transfer out of the depot."

This list referred to, contained the names of the five officers, including the claimant, who were subsequently informed that they were being transferred out of the depot. The criteria used to identify these officers included the criterion of public order training. This was the first time it had been introduced in the process, No minutes were taken of this meeting and no one could give evidence of the source of this criterion or the reason for its introduction.

Chief Inspector Wilkinson forwarded to Inspector O'Grady, a Memorandum he had received from Superintendent Kearney asking him to consider (i.) advanced driver status and (ii) public order training. A report was requested and provided bearing the date 1 November 1999. Both Superintendent Kearney and Inspector O'Grady had had discussions with Mr Wilkinson that day. Neither could recall times or content but were in agreement with Sergeant McIlwrath that he was not involved in these discussions. The tribunal had only been able to put the events of 1 November 1999 in any semblance of order during Inspector McCune's evidence. Sergeant McIlwrath had given his evidence earlier. Chief Inspector Wilkinson did not give evidence to the tribunal so the tribunal heard no evidence as to whether these two men had any discussions on this point on this date.

At this time, Sergeant Mc Ilwrath had been at M.T. Depot for over 17 years while Inspector O' Grady had been there for almost 4 years. All witnesses agreed that Sergeant McIlwrath was very good at his job and that the depot ran 'like clockwork'. Inspector O'Grady acknowledged that while he was the senior officer, he 'rarely interfered' in the planning of the depot's operations. The tribunal would have expected someone with that expertise and knowledge of the depot and its operations would have be invaluable to this process.

The Police Federation were satisfied with the process and the five officers were informed on or about 12 November 1999 that they were to be transferred out of the depot.

The claimant had a career counselling meeting with Inspector McCune on 16 November at which he told her that he believed the criteria used to transfer him were unfair and that he was seeking legal advice. Under the Transfer Policy used, grounds of appeal were limited. He lodged his appeal on 19 November 1999 pointing out that he had completed a five week intensive driving course, had previously performed public order duties on many occasions and that his lack of training in this area was not through any fault on his part. He stated that the only escort not transferred was Reserve Constable Scates who had not done any driving course and so was less qualified that he was.

When that appeal was rejected, the claimant appealed again. This time he referred to Force Order 59/98, claimed he was better trained than Mr Scates and so under Paragraph 4(7), should have been preferred. He also mentioned there were 'certain issues' that 'could evolve into highlighting irregularities which would not be in the interests of the RUC.' The claimant told the tribunal this was his attempt to suggest Masonic influence. By the end of November 1999, the claimant was on sick leave and was still off when his service was terminated for poor attendance on 17 June 2000. The second appeal was never heard.

Inspector McCune prepared a report for the first appeal where she noted that Inspector O'Grady had informed her that approximately 50% of his officers were public order trained so that there was 'no operational requirement' for other officers to attend initial public order training. In his tabulation of the daily duty requirements in the depot, the Inspector had not included any instances of public order duties but the tribunal accept that in the period covered, there were two days when 15 and 16 officers respectively were so detailed.

As previously stated, the tribunal were surprised that the RUC policy on Recruitment and Selection was not referred to. Even more worthy of note by a Fair Employment Tribunal is the fact that none of the officers who took part in this process paid any heed whatsoever to the relevant Code of Practice. Rather than listing departures from the Code, the tribunal would have set out any instances when its recommendations had been followed if any had been found.

Legal Principles

Article 3(2) of the Fair Employment and Treatment (Northern Ireland) Order 1998 states that a person discriminates against another person on the ground of religious belief or political opinion if, " in any of the relevant circumstances, on either of those grounds, he treats that other less favourably than he treats or would treat other persons."

Absence of religious belief or political opinion is included under Schedule 1 of the Order. 'Relevant circumstances' includes employment and the provisions of the Order apply to the office of constable which is to be treated as employment (Article 94). Under Article 37 of the Order, employers and principals are to be treated as doing or authorising acts done in the course of the employment. The first and fourth respondents are thereby liable for the actions of the personnel who conducted this selection process in the course of their employment.

Neither religious belief nor political opinion is defined in the Order. The tribunal is unaware of any previous decision regarding the interpretation of the phrase 'religious belief' but has considered the comments of the Northern Ireland Court of Appeal in McKay -v- Northern Ireland Public Service Alliance [1994] NI 103 relating to 'political opinion'. The Court held that those words were neither ambiguous nor obscure and giving them their ordinary natural meaning would not lead to absurdity in the context of the legislation. We have therefore followed this guidance in our interpretation of the phrase 'religious belief' as did the Mrs Price, Vice President, in the case of Neill -v- Belfast Telegraph Newspapers Ltd (00554/00 FET).

Mr Ritchie submitted that the question for the tribunal was whether the Masonic Order was a religion or a similar philosophical belief. He referred the tribunal to two cases where English courts had considered whether Freemasonry was a religion or was concerned with the advancement of religion. Both cases involved local government and were to do with local taxation. Neither was of assistance as the issue for consideration here was not whether it was a religion but whether it is a religious belief for the purposes of fair employment legislation. Mr Ritchie acknowledged that at its height, the evidence in this case was that the Masonic Order has religious beliefs but that the religious belief of the claimant, R/Con Scates and Sgt. McIlwrath were identical in that they were all Protestant.

The tribunal accepts that all are Protestant but that is far from saying that their religious beliefs are identical. In the same way, it could be argued that since both Protestants and Roman Catholics are Christian in their religious belief, they are identical. The tribunal are aware that even within Protestantism, there are major differences in religious belief between denominations and sects. Some groups follow more fundamentalist beliefs while others are more ecumenical. The tribunal does not accept that the religious beliefs of all Protestants are identical.

For the claimant, Mr McKee questioned Sergeant McIlwrath on the beliefs and practices of the Masonic Order. Mr McIlwrath had obvious difficulty with regard to the concept of 'whole truth' when answering these questions and had to be reminded of what was expected of him by the tribunal. Mr McKee read from a book written some time ago which purported to contain details of the Biblical origins of the beliefs of Freemasons, oaths taken by persons on admission to each degree of the craft, whether an open Bible was used to swear the oaths and the symbolic items used. Mr McIlwrath, with obvious reluctance, informed the tribunal that he had been a mason for some 35 years. He could not remember the words used in his initiation all those years ago or when he last attended such a ceremony. He had progressed to the Third Degree but could not recall how long this took or how progression was determined or by whom. He was asked about the 3 Great Duties of Masons, first to God who was to be esteemed as one's Chief Good; second one's neighbour , doing unto him as you would he do to you and third, to oneself by avoiding irregularity and intemperance. He could recall 'something along those lines'. The Bible was always present at meetings and the square and compass were laid on the open Bible when oaths were taken. The tribunal heard a list of the things that were said would happen to any member who broke any of his promises. These included dire events such as the body being cut in two. Mr McIlwrath described much of the language used as symbolic rather than literal. The essence was that members looked after fellow Masons, the young, the elderly and infirm and including '…the atheist, a madman or fool'. Mr McIlwrath had never heard that. He did accept that meetings opened and closed with prayer. The God that he prayed to at these meetings was the same God he prayed to in his Church on Sunday. In his view, people were free to practice their own religion outside the lodge. He said he was not aware that Cardinal Ratzinger, as he was then, had decreed that membership of the Masonic Orders was incompatible with membership of the Roman Catholic Church but accepted that there were no Roman Catholic members of his lodge.

Mr Scates was less inhibited in his evidence regarding his membership of the Order and provided the tribunal with a pamphlet prepared by the Grand Lodge of Ireland for candidates. He had joined the Order for social reasons about the same time as he joined the police and let his membership lapse from about 2001 when he was injured on duty. He retired on 1 June 2002 and did not continue his membership after that. He told the tribunal that he was aware that the roots of Freemasonry were in the Biblical story of Hiram Abiff and the building of the Temple of Solomon. He was not familiar with the extracts from Freemasonry and Its Etiquette by William Preston Campbell (1978) read by Mr McKee as he believed this referred to another Grand Lodge's practices. He then provided the pamphlet for candidates and with assistance from that, his evidence was that belief in a unitary God was an essential requirement for members and that people such as Hindus who believed in more than one God, or Buddists, who do not believe in God, could not join. Women were also excluded but we were not told why. He confirmed the use of the Bible and prayers at meetings.

The claimant gave evidence that he had been invited to join the Order and told it would help his career. His perception was that members helped each other, they all believed in a Supreme Being called the Great Architect, meetings opened with prayers and various religious practices were carried out at meetings. The claimant did not take up the invitation to join.

The tribunal was also mindful of the fact that in Northern Ireland, many people feel excluded and marginalised because they do not share the religious beliefs and/or political opinions of others in their workplace or locality. The Code of Practice recognises this 'chill factor'. For many people in Northern Ireland, especially but not only Roman Catholics, a workplace where Masonic membership is extensive, would not be seen as welcoming. The claimant and Sergeant Lipsett gave evidence that they felt excluded, even ostracised, in their workplace because they did not share in the Masonic membership of many of their colleagues or the right wing political views expressed by them. Both Inspector O'Grady and Sergeant McIlwrath denied there was much Masonic or political discussion and certainly not to the extent claimed. Constable Scates's evidence, while not in total agreement as to the extent, accepted such discussions did take place and was more corroborative of the claimant's and Sergeant Lipsett's version of events. He would also have been more likely to have been familiar with what took place during the day than the others who had their own offices.

Sergeant Lipsett described the Masonic influence in the police as pervasive and said he was often asked by officers to arrange their duties so that they were free for Masonic functions and meetings. Officers whom he knew to be members had engaged in preparatory work for Masonic functions during working hours on the premises. He produced a Masonic magazine which he claimed had been left at work.

As Mr Ritchie acknowledged, the Masonic Order has religious beliefs. In Northern Ireland, there will be many people who do not share those religious beliefs or who feel excluded from the practices or expression of them. The tribunal is satisfied that membership of the Masonic Order is a religious belief for the purposes of the Fair Employment and Treatment (Northern Ireland) Order 1989.

BURDEN OF PROOF

Section 38A of the Fair Employment and Treatment (Northern Ireland) Order 1998 provides that:

Where, on the hearing of a complaint under Article 38, the complainant proves facts from which the Tribunal could, apart from this 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 claimant, or

(b) is by virtue of Article 35 or 36 to be treated as having committed such an act of discrimination or harassment against the claimant,

(c) 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.

The Court of Appeal in England in the case of IGEN Ltd & Ors -v- Wong [2005] EWCA Civ 142, revised the guidelines for tribunals applying this section of the statute. These guidelines require a tribunal to go through a two stage process. Firstly, the claimant is required to prove such facts from which a tribunal could, in the absence of an adequate explanation from the respondent, conclude that the respondent has committed, or is to be treated a having committed, an unlawful act of discrimination. If the claimant has proved those facts, the second stage requires the respondent to prove that he did not commit, or is not to be taken as having committed, the unlawful act.

The tribunal has set out its findings of facts above in great detail. The first question for consideration is whether the claimant has proved such facts from which it could conclude that an act of unlawful discrimination has taken place.

It found the following;

(a) The claimant suffered a detriment in his employment in that he was selected for transfer from his post of driver at the first respondent's M.T. Depot.

(b) The comparator was treated more favourably in that he was retained in the M.T. Depot.

(c) The claimant was better trained than the comparator in that he was a Standard Test driver and the comparator was not.

(d) The comparator was a member of the Masonic Order while the claimant was not. The tribunal have found that there is a difference in their religious beliefs for the purposes of the Fair Employment and Treatment (Northern Ireland) Order 1998.

(e) There was at least one other person who was also a member of the Masonic Order who had some involvement in the selection process.

(f) The process of selection of those to be transferred was not systematic and not in accord with the first respondent's Policy on Recruitment and Selection or the Fair Employment Code of Practice.

(g) There was no evidence before us from Chief Inspector Wilkinson. We were informed that he was ill but no medical report was provided. We were also informed that he was not a member of the Masonic Order but no evidence was laid to that effect. Inspector McCune was only available to give her evidence after all the other witnesses and it became clear during her evidence that Chief Inspector Wilkinson had a much greater role in the process than had previously been realised, not least his involvement in the introduction of the disputed criterion and his role in not supporting the automatic transfer of the escorts proposed by Inspector McCune.

(h) The tribunal was satisfied that the claimant and Sergeant Lipsett felt uncomfortable in their workplace because they were not Masons.

The tribunal finds that it could conclude from the above that an act of unlawful discrimination has taken place and now considers the respondent's explanation.

The claimant has named Inspector O'Grady and Sergeant McIlwrath as respondents in this case. There was no evidence before us from which we could draw a conclusion that these two officers had greater personal responsibility for the decisions made than others. The tribunal dismisses the claims against the second and third respondents.

As already stated, there was a total disregard by the first and fourth respondents' officers of both the RUC Policy on Recruitment and Selection and the Fair Employment Code of Practice. Failure to observe any provision of the Code does not of itself infer unlawful conduct but the tribunal find it unbelievable that such a large public body in Northern Ireland in 1999 was still not fully compliant with its core components of best practice, some ten years after its introduction.

The tribunal was particularly hampered in our task by the absence of any minutes or proper records of decisions made, by whom, when and for what reason but the respondent has a greater difficulty in presenting cogent evidence of the fairness of the process and the absence of discrimination. Much of the evidence of the respondents' witnesses concerned the role or otherwise of Sergeant McIlwrath but it was obvious to the tribunal that the documentation provided only covered part of what took place and that other meetings or discussions took place and decisions were made and there was no way of knowing who was involved or why decisions were made particularly with regard to the role of Chief Inspector Wilkinson.

Superintendent Kearney chaired most of the meetings. His evidence was that he was pushing the process forward and that he probably was responsible for the introduction of the public order criterion as he reported to the senior management and would have been aware that they would have considered this of strategic importance. He told the tribunal that the bulk of his service of over 30 years was connected to vehicles and driving yet he was not aware that there was a difference in the qualification of drivers. With regard to the Force Order 59/98 stricture that supervisory ranks should use the best trained drivers, the Superintendent said that he was never comfortable with it and he often used test only drivers whom he had identified as safer. The tribunal were surprised that such a senior officer would consider ignoring a Force Order but even if that is overlooked, the witness was saying he would do so based on his knowledge of the abilities of the individual drivers. There was no attempt in this process to make any objective assessment of skill levels or driving experience of any of the personnel in the depot.

When Inspector McCune was tasked with progressing the selection, she was not provided with any of the documentation relating to the structure or organisation of the depot or its core duties. She was not informed of the criteria for appointment of staff or that there were non drivers in the depot. She was told that there was no way to differentiate between the staff yet she was able to identify enough difference to make recommendations which formed the bulk of the selection criteria. She was not informed that the Police Federation had not been consulted. Most alarming was the failure of her senior officers to advise her that this was a selection rather than a transfer process and train her in the way it should have been conducted.

No cogent evidence was provided of the reason for the introduction of the disputed criterion of public order training or why it was preferred to the more relevant and objectively measured driving qualification and/or experience.

While there was no evidence given in relation to the percentage of members of the Masonic Order in the depot, the tribunal was satisfied that of the seven escorts, at least three were members. As found above, the respondents did not provide a neutral working environment. As a result, those officers who did not belong to the Masonic Order felt uncomfortable and excluded because of the actions of those who did.

From the outset of this process, there was a marked reluctance by the respondents' officers to follow any best practice and indeed random selection was the preferred option for some time. However, by the first meeting on 1 November 1999, criteria were in place and only six officers remained to be selected. If, as suggested by Superintendent Kearney, a driving criterion had been chosen, it is likely that the claimant would not have been selected and R/Con. Scates would have been transferred. The reason given for the choice of the disputed criterion was that it was appropriate and essential. The tribunal find that it was less appropriate and less essential than a driving qualification.

In the case of Dresdner Kleinwort Wasserstein Ltd -V- Adebayo [2005] IRLR 514, the EAT stated in the headnote;

"The shifting of the burden to employers means that tribunals are entitled to expect employers to call evidence which is sufficient to discharge the burden of proving that the explanation advanced was non-discriminatory and that it was the real reason for what occurred. Equivocal or evasive answers to legitimate queries in statutory questionnaires, failures to follow recommendations in relevant codes of practice, or the failure to call as witnesses those who were involved in the events and decisions about which complaint is made will all properly assume a greater significance in future …"

The tribunal is not satisfied that the explanation given by the respondent was in no sense whatsoever on the grounds of religious belief. The tribunal concludes that the claimant was unlawfully discriminated against in the procedures used to select officers to be transferred out of the RUC Motor Transport Depot in or about December 1999. The tribunal will decide on appropriate remedies at a later date.

Chairman:

Dates and place of hearing: 20-24 March, 2006

12-13 April, 2006

15-19 May, 2006

24 May, 2006 all Belfast.

Date decision recorded in register and issued to parties: