Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 00056/98 FET

CLAIMANT: Kevin Curley

RESPONDENTS: 1. Chief Constable of the Police Service of

Northern Ireland

2. Chief Superintendent Houston

3. Superintendent Lamont

DECISION

The unanimous decision of the Tribunal is that the claimant was not unlawfully discriminated against on grounds of religion.

Constitution of Tribunal:

Chairman: Mrs P Smyth

Members: Dr T Cradden

Mr B McGuire

Appearances:

The claimant appeared in person.

The respondents were represented by Mr N McCombe, Barrister-at-Law, instructed by The Crown Solicitor's Office.

The issue

1. The issue to be determined by the Tribunal is whether the claimant was unlawfully discriminated against on grounds of religion in his failure to be promoted to the rank of Sergeant in the Police Service of Northern Ireland.
2. The Tribunal heard evidence from the claimant and from Constables Purcell and Thompson on his behalf. The Tribunal heard evidence from Mr Lamont and Miss L on behalf of the respondents. Miss L is not named for legal reasons.
3. Having heard the evidence of both parties, and having considered the agreed bundle of documents, the Tribunal found the following facts proved on a balance of probabilities:-

(3.1) The claimant is a Catholic man who joined the Police Service as a Constable in 1986. He passed the exam for Sergeant in January 1989. This claim arises out of his application for promotion in 1997.

(3.2) Three members of the Police Service were detailed to conduct the promotion exercise, namely Chief Superintendent Houston (P), Superintendent Lamont (P) and Chief Inspector L (RC).

(3.3) At the time that she was detailed to conduct this promotion exercise, Miss L was about to retire from the Police Service. Miss L did not wish to be involved in the promotion exercise because she was about to retire, she had an existing workload and she had not been trained as an Assessor or sat on a promotion exercise previously. However, the Tribunal accepts that she was told by the Human Resources Department that she was required to carry out this duty. Miss L did receive a briefing from the Equal Opportunities Unit. Miss L was not informed that the claimant had issued proceedings until 2003, six years after the event.

(3.4) Chief Superintendent Houston (now deceased) was the Chairman of the panel. Although Mr Houston's record does not indicate that he was a trained assessor, Mr Lamont gave evidence that he believed him to be. In the absence of any other evidence the Tribunal is not satisfied that Mr Houston was a trained assessor. The Tribunal accepts that Mr Lamont was a trained assessor.

(3.5) There were 269 applications for promotion. The community background of the candidates was as follows:-

Protestant 234

Catholic 28

The selection process consisted of two stages, a paper sift and if the candidate was successful a board (interview).

(3.6) The claimant was one of 187 Constables who passed the paper sift stage and proceeded to the board. The community background of those candidates who passed the paper sift stage was as follows:-

Protestant 161

Catholic 23

(3.7) Following the board, 144 candidates were promoted to the rank of Sergeant. The community background of those candidates who were promoted was as follows:-

Protestant 125

Catholic 17

The claimant was not promoted to Sergeant as his overall mark, taking into account both the paper sift and the board, was two marks short of the cut-off to enable him to be promoted.

(3.8) The claimant did not challenge the marks awarded by the panel at the board stage. He told the Tribunal that he did not do so because he did not have typed copies of the interview notes at the time that he was preparing his case. The claimant based his case on the paper sift stage and alleged that he was treated less favourably than 31 Protestant Constables.

(3.9) At the time of applying for promotion, the claimant had been Acting Sergeant for approximately nine months. His reporting officer commented that "Kevin has been Acting Sergeant since October 1996, being appointed over other more senior members, reflecting the esteem in which he is held …". His Sub-Divisional Commander commented:-

" … It was my decision to give him the responsibility to act-up to the rank of Sergeant. From a personnel point of view, that was one of the best decisions to have been made by me. Constable Curley grasped the opportunity to confirm my faith in him as a professional police officer and as a very competent supervisor. He has given complete loyalty to me and to the force. His fellow officers conform to his directions and guidance without any hesitation and the respect they had of him has increased since October 1996. I have observed Constable Curley in many stressful operational situations. He displays very good qualities in decision-making; calmness in the face of adversity; confidence in his own ability; and that of others and resolute leadership. An excellent young officer."

(3.10) On the face of the application form, all candidates were informed that the following documents would be supplied to the promotion board:-

(a) Details regarding education standard.

(b) Police service:-

(i) Previous appointments in the Police Service (including secondments).

(ii) Police and other relevant courses attended.

(iii) Headquarters, favourable records, commendations, awards and decorations.

(c) Service in HM Forces and/or Emergency Services.

(d) Details of other employment and specialist skills.

(e) Sickness records.

In block capitals, candidates were also informed that "THE ONUS IS ON EACH INDIVIDUAL TO ENSURE THAT THEIR PERSONAL RECORDS ARE ACCURATE PRIOR TO THE CLOSING DATE FOR APPLICATIONS".

(3.11) The Tribunal infers that the panel was expected to take the information into account in assessing the candidates. The Tribunal also infers that the warning to candidates to ensure that their personal records were accurate was necessary because it was anticipated that the panel would rely on the personal records to confirm information supplied by the candidates.

(3.12) The panel did not take into account each candidate's complete record. The only documents which were considered were the educational attainment record and the posting record along with the application form.

(3.13) The application form consisted of two parts. The first part contained personal details, and the second part was a self-assessment form. Candidates were asked a series of 10 questions, and asked to provide examples to demonstrate various skills and abilities. Each candidate's reporting officer and Sub-Divisional Commander was asked to provide written recommendations on promotion.

(3.14) A proposed marking sheet was drawn up by Mr Lamont and forwarded to the Equal Opportunities Unit. On 28 July 1997 an Inspector from the Unit made recommendations regarding the marking of sub-headings and also in relation to the marking of the candidates' written application and self-assessment. In particular, it was noted that 'the marking system gives very favourable advantage to candidates with higher education qualifications, particularly Postgraduates. Such weighting could be biased against candidates who have undertaken more community based or other self-development'. The proposed marking system provided for two marks for a HND or equivalent, four marks for a degree or equivalent and six marks for a postgraduate degree. On 29 July 1997, in a further memo, a Superintendent from Career Management confirmed to the panel that, " … Force Policy precludes financial assistance to Constables for degree courses. It is the opinion of Force Policy that HND (or equivalent) is appropriate for Constables and Sergeants".

(3.15) Consequently, the potential marks for qualifications were reduced from two, four and six to one, two and three in respect of each level of qualification.

(3.16) The Tribunal accepts that no member of the promotion panel marked any candidate's complete application form. The panel decided that each member would mark the same sections on each of the 269 applications. However the Tribunal is not satisfied that the handwriting in respect of some candidates is consistent with the same panel members marking the same section in each candidate's forms. However the Tribunal accepts that this practice affected both Protestant and Catholic candidates.

(3.17) The Tribunal accepts that apart from the instances referred to at Paragraph 3.16 above Miss L marked the section entitled 'Experience' and Questions 1, 2 and 3 of the self-assessment form. Mr Lamont marked the sections entitled 'Communication Skills', 'Managing People' and 'Implementation and Managing Tasks'. Chief Superintendent Houston marked the sections entitled 'Appraising and Collecting Information', 'Decision-making', 'Handling Risk and Stress', 'Writing Exercise' and 'Reporting Officers' Recommendations'.

(3.18) The claimant alleged that Miss L treated him less favourably than Protestant candidates in relation to marks awarded for experience and answers to Questions 1, 2 and 3 of the self-assessment form. The Tribunal deals with each of those sections below.

(3.19) Experience (which consisted of two parts):

(a) Beat and Patrol

(b) Specialisms/Administration

The experience of each candidate was marked under the heading of 'Beat and Patrol' and 'Specialisms/Administration'. In the Statutory Questionnaire, the respondent was asked to define the term 'relevant experience'. In its reply, the respondent stated:-

"The term used in the marking guide was 'experience' and looked at in what areas of the Police Service and for how long an applicant had served. This was divided over beat and patrol, specialist departments and administration roles. This would be capable of being reinforced by evidence given under the various competencies."

The Tribunal is satisfied however that when Miss L awarded marks she did not take into account the length of time a candidate had served in a particular area of beat and patrol. This applied to all candidates.

(3.20) In response to a request for further clarification by the claimant, the respondent stated by letter dated 16 May 2006 from The Crown Solicitor's Office:-

"The response required from applicants to attain the full five marks for Beat and Patrol duties would be to identify five different locations where they were assigned to beat and patrol duties provided the policing was different (one mark each). Candidates would therefore have to have served in five different policy experiences with Beat and Patrol."

(3.21) The claimant gained four marks out of a maximum of five for beat and patrol which he accepted was justified according to his posting record. However, he compared himself to nine Protestant candidates whom he alleged were given more marks than their posting records could justify.

(3.22) The Tribunal found Miss L's evidence to be unsatisfactory in a number of respects. She changed evidence which she had given in her witness statement when giving oral evidence to the Tribunal. Furthermore, marks which she had stated were accurate in a previous document were changed in respect of some candidates. The Tribunal is satisfied that despite the fact that Miss L stated in her witness statement that experience was marked from 'a computer print-out', in reality she gave marks for experience if candidates provided evidence of it in response to Questions 1, 2 or 3 on the self-assessment form. She did not confine her assessment to the posting record. In addition she awarded one mark to any Constable who had 15 years experience and one mark for any Constable who had acted-up as Sergeant.

(3.23) However, the Tribunal is satisfied that this method of marking applied to both Protestant and Catholic candidates. Constable R (RC) was awarded four marks for beat and patrol, yet his posting record could only justify at most three marks, and arguably could only justify two marks since beat and patrol at Clogher and Fivemiletown would be similar. Constable H (RC) was awarded four marks yet his posting record could only justify two marks.

(3.24) The claimant specifically criticised Miss L for awarding separate marks to Constable P H (P) for beat and patrol postings in Newcastle and Kilkeel because he contended that the policing experience would be similar in both towns and therefore only one mark was justified. However, Constable McG (RC) was awarded four marks for beat and patrol and his posting record states that his experience in beat and patrol was in Newcastle, Kilkeel, Grosvenor Road and Shantallow. Therefore whether or not she was entitled to give separate marks this is an example of a Catholic and a Protestant being treated similarly.

(3.25) The claimant also criticised Miss L for awarding a mark to Constable DS M (P) because he said he had 'acted-up' to tutor constable. The claimant contended that there is no such role as 'acting-up' to tutor constable. An officer is required to complete a tutor constable's course before he can assume that role. However, Constable R (RC) was awarded two marks for specialisms whilst his record only stated experience in drugs squad. He had stated that he was a tutor constable and for that reason was awarded a mark despite the fact that there was no evidence of a tutor constable course having been completed. Again whether or not a mark ought to have been given it is clear that she treated a Catholic and a Protestant in a similar way.

(3.26) The respondent accepted that the claimant ought to have received a mark for his 'crime team' specialism which he was not given. This information was clearly apparent from his answer to Question 1 and the Tribunal is satisfied that this is evidence of less favourable treatment in comparison to Protestant comparators whose experience was fully taken into account.

(3.27) The claimant also alleged that he ought to have been given a mark for his specialism of 'relief collator'. The respondent disputed his entitlement because the specialism did not appear either on his posting record or in response to Questions 1, 2 or 3 of the self-assessment form which were the areas taken into account by Miss L in assessing experience. The claimant had mentioned this specialism in response to Question 7.

(3.28) This case had previously been part-heard by the President to the Tribunals but had to be aborted during the claimant's cross-examination. The claimant contended that at that previous hearing it was specifically put to him that if he had mentioned his experience of 'relief collator' on the form, he would have received a mark for it. The respondent did not accept that this was a fair reflection of what had occurred.

(3.29) The claimant requested the President of the Tribunal's notes of evidence relating to this issue from the previous hearing. The President provided those notes, and the Tribunal admitted them in evidence.

(3.30) Having considered those notes it is apparent that in the sequence of questions, it was initially put to the claimant that if it had stated on the form that he was a relief collator he would have got a mark. When it was pointed out to the respondent's counsel that the information was included in relation to Question 7, counsel for the respondent remarked, "did you expect her to go hunting for it?" It was then put to the claimant, "you should have got a point if you put it into the right place. You should have ensured it was on the computer print-out. It was not Miss L's fault that it was tucked away in a question she did not mark".

(3.31) The respondent accepts that Constable SL B received a mark by Miss L for experience because of information he had given at Question 5 which was not one of the questions which Miss L ought to have assessed. Miss L also accepted that Constable SL B was given two marks from having acted as a Sergeant whilst the claimant only received one mark. The Tribunal is satisfied that this is evidence of less favourable treatment in comparison to Constable SL B.

(3.32) The claimant lodged proceedings in January 1998 alleging that he had been subjected to unlawful discrimination. In February 1998 he attended a 'feedback' interview with Mr Lamont. The Tribunal accepts that this was a heated discussion and that Mr Lamont became very frustrated at what he perceived as the claimant's inability to accept deficiencies in his performance. Mr Lamont accepts that he used words to the effect, "I don't care if you are a Catholic, a Protestant, Black or … ". The claimant attached great significance to these words and contended that this was evidence that the claimant's religion had played a part in the marks awarded. Although the Tribunal accepts that in certain circumstances these words could indeed be very significant, the particular context in which the words were said must be considered. Mr Lamont was aware that the claimant had lodged a claim with the Fair Employment Tribunal concerning this promotion exercise at the time the feedback interview took place. He was therefore aware that an allegation was being made about religious discrimination. Against that background, the Tribunal does not conclude that the fact Mr Lamont used these words is evidence that the claimant's religion had influenced the marks awarded by the panel during the promotion exercise.

(3.33) Personal Development

The scoring sheet provided for marks to be awarded on the following basis:-

HND or equivalent (one mark)

Degree or equivalent (two marks)

Postgraduate or Higher (three marks)

The claimant has 'A' levels and he accepted that according to this scoring sheet he ought not to have received a mark. He did not receive a mark. However, he pointed to the fact that 23 Protestant candidates received marks in this category despite the fact that they did not have a HND or equivalent qualification, a degree or equivalent qualification or a postgraduate degree.

(3.34) Having heard evidence from Miss L, the Tribunal accepts that the score sheet does not accurately reflect the basis on which marks were allocated for 'personal development'. The Tribunal also accepts that the information provided to the claimant by letter dated 16 May 2006 from The Crown Solicitor's Office regarding the method of scoring was inaccurate and misleading. It is apparent that Miss L did not award marks for personal development solely on the basis of academic qualifications although that was taken into account. Miss L awarded marks on the basis of information provided by candidates in response to Questions 1, 2 and 3 of the self-assessment form which in her view revealed evidence of activities which could be considered relevant to personal development. Examples of activities which Miss L considered worthy of marks under this category included involvement in a Parent-Teacher Association, organising a trip for children's gymnastics event and taking children on organised rambles.

(3.35) Miss L contended that she was entitled to award marks on this basis because of the memo received from the Equal Opportunities Unit regarding the proposed score sheet (referred to at Paragraph 3.14 above). She understood that she was entitled to take account of information which she believed indicated evidence of community based or other self development.

(3.36) Miss L confirmed that no further correspondence was entered into with the Equal Opportunities Unit, nor communications received. As already stated at Paragraph 3.15 the proposed marks of two, four and six for each category of qualifications were reduced to one, two and three respectively in view of the comments made regarding weighting. The concern raised by the Unit related to the proposed 'weighting' of academic qualifications. At no time did the Unit recommend that marks for personal development should be awarded on a vague and unspecified basis for activities such as arranging children's trips and taking part in a Parent-Teacher Association.

(3.37) However, the Tribunal was provided with the score sheets and self-assessment forms of a number of Catholic candidates. Constable McG (RC) was awarded one mark for personal development despite the fact that his educational background consisted only of 'O' levels and therefore according to the written score sheet he was not entitled to any marks. Constable D (RC) and Constable R (RC) also received one mark for personal development despite the fact that they did not satisfy the written criteria regarding qualifications on either the score sheet or the letter from The Crown Solicitor's Office dated 16 May 2006. The marks were based on information contained in answer to Questions 1, 2 and 3.

(3.38) The claimant was particularly critical as regards Protestant candidates who had received a mark for personal development because they had either completed or were in the process of completing a HNC in Police Studies. The claimant submitted, and indeed provided evidence, that a HNC is an inferior qualification to a HND and therefore no mark was justified. The respondent submitted that a HNC in Police Studies is at least as relevant as any HND in a non-related subject. What is clear however is that Constable R (RC) also received a mark and he had indicated at Question 3 of his self-assessment form that he was in the process of completing a HNC in Police Studies. Therefore whether or not a mark was justified, and arguably a qualification specifically in police studies would be very relevant, this is an example of a Protestant and Catholic being treated similarly.

(3.39) The Tribunal is also satisfied that one of the Protestant candidates, Constable C (P) ought to have received two marks according to the written criteria because he was a graduate. In fact he received no marks. Miss L accepted that mistakes were made, and relied on Constable C as an example of a Protestant candidate who was under marked.

(3.40) Steps undertaken for self-development as a Constable

The claimant scored one mark out of a possible two marks under this category. He alleged that he was treated less favourably than Protestant comparators by being awarded this mark. Miss L gave evidence that she awarded him one mark because he said that he had 'requested to be transferred from Ballymena RUC Station to P1 Mobile Support Unit'. The remainder of his answer related to the experience he had gained whilst carrying out his duties as an Acting Sergeant. Miss L stated that he had already received a mark for acting as a Sergeant at Question 1 'reason for applying for promotion at this time'.

(3.41) It appears to the Tribunal that candidates who gained the full two marks in this category did so mainly because they had highlighted courses which they had either completed, had applied for or had considered applying for. An example may be seen in the case of Constable KA H (P) who described courses which he had attended and assistance which he had given to other Constables who wished to advance themselves. The Tribunal accepts that the detailed evidence of the tasks which the claimant had performed as an Acting Sergeant would suggest considerable steps undertaken for self-development and would have justified the full two marks.

(3.42) However, Constable D (RC) received the full two marks under the category, and his answer simply describes how he volunteered for a course, and involvement with various military units. Constable H (RC) appears to have been given three marks despite the fact that the maximum was two. Miss L contended that the mark of three included a mark for personal development. His answer simply describes knowledge he had gleaned as a result of surveys he has completed in relation to police matters and the fact that he undertook the 'Presentation Skills' course. The Tribunal does not consider that Constable H's answer to Question 2 was as good as the claimant's reply and yet this is an example of a Catholic officer who was awarded full marks. Constable GK (P) received one mark under this section for describing two-week attachments to various units, undertaking courses and being in the process of completing a HNC in Police Studies. Arguably, Constable GK's answer was at least as good as Constable H (RC) and yet he gained less marks.

(3.43) The Tribunal accepts that apart from the instances referred to at Paragraph 3.16 above, Mr Lamont marked the following questions:-

- communication skills

- managing people

- implementation and managing tasks

(3.44) Communication skills

The claimant obtained four out of a possible six marks. He alleged that he was less favourably treated in relation to a number of Protestant comparators. The Tribunal accepts that the assessment of communication skills is necessarily a very subjective matter. The heart of the dispute between the parties appears to be whether the example described by the claimant demonstrated excellent communication skills and whether his 'A' Grade at 'O' Level English ought to have been regarded as evidence of this skill. The example related to the claimant's control of a riot situation and how he managed to advance his 16 officers and clear the barricades. He then described how the crowd dispersed following the claimant's discharge of a baton round and a rioter's subsequent arrest. Mr Lamont gave evidence that this was more an example of how the claimant solved a problem by using force, rather then by using his communication skills. The claimant's point was that his ability to control and advance his officers towards the rioting crowd and clear the barricades could only have been successfully achieved by excellent communication skills with those officers. Mr Lamont accepts that he awarded marks on the basis that he assumed good communication skills must have been used in order to control the officers. However, he submitted that the answers given by the Protestant candidates referred to by the claimant were better and that is why he gave them more marks.

(3.45) Having studied the answers given by the comparators, the Tribunal is satisfied that their answers provided more detail of the communication skills employed by the candidate in this particular example given. The claimant did not specify the communication methods which he used in order to control his 16 men. Had he done so, he may well have gained additional marks. As regards the issue of the claimant's 'O' Level qualification in English, although the Tribunal accepts that this is a fact which could have justified a mark there is no evidence that a Protestant comparator with a similar qualification was awarded an extra mark. There is therefore no evidence of less favourable treatment.

(3.46) Managing people

The claimant also complained that Constable S (P) ought not to have received marks under the category of 'managing people' even though he himself received full marks. The claimant contended that the example provided by the Constable suggested that he had helped to 'cover up' an unlawful arrest. It is evident from the assessment form that Mr Lamont noted this issue and the Tribunal accepts that this subsequently formed a basis for questioning the Constable at interview. Arguably it would have been unfair to the candidate to assume that a cover-up had occurred without allowing the Constable an opportunity to explain the matter, which he was given at interview.

(3.47) Implementation and management of tasks

The claimant gained three marks out of a total of six marks. Candidates were asked to describe a situation where they were involved in such 'tasks'. The key skill required was the ability to 'respond positively to changes using experience and knowledge, take control, giving clear concise directions and monitor tasks to the required standard'.

(3.48) The claimant relied on five Protestant comparators who were awarded marks and who he alleged had not provided any example or described any situation where this skill was demonstrated. Mr Lamont denied that their answers lacked an example, although he accepted that there was no evidence that Constable P H had demonstrated evidence of having monitored the task described in her example. The Tribunal has examined the answers given by each of the comparators and is satisfied that examples were given by each candidate to demonstrate this ability albeit that in her example Constable P H did not demonstrate monitoring the task.

(3.49) The claimant complained that one Protestant officer who was a member of Special Branch received more favourable treatment in that an assumption was made that his failure to provide specific details by way of example was because of the covert nature of his work. The Tribunal accepts that this officer was treated more favourably. However, he was treated more favourably than both Protestant and Catholic candidates.

(3.50) The claimant also complained that Constable DS M (P) had provided an example which contained a legal error relating to a drink-driving offence. This was in relation to 'implementation and management of task'. There was a dispute between the parties as to whether or not the terminology used by the candidate was such that he ought not to have received a mark notwithstanding his example of implementing and managing a task. Whilst the Tribunal accepts that the claimant may be technically correct the Tribunal is satisfied that Mr Lamont was satisfied that the candidate had used a valid example.

4. The law

Article 3(2) of the Fair Employment and Treatment (Northern Ireland) Order 1998 provides that a person discriminates against another person on the grounds of religious belief or political opinion in any circumstances relevant for the purposes of this Order if:-

(a) on either of those grounds he treats that other less favourably than he treats or would treat other persons; …

[Emphasis added]

(b) …

Article 3 provides that a comparison of the cases of persons of different religious belief or political opinion under Paragraph (2) must be such that the relevant circumstances in the one case are the same, or not materially different in the other.

5. The Burden of Proof Regulations

Article 38A of the Fair Employment and Treatment Order states:-

"63A(2) Where, on the hearing of a complaint, 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 discrimination against the complainant which is unlawful by virtue of Part III; or

(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination against the complaint;

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."

Guidance on the application of these Regulations has since been given by the Court of Appeal in Barton v Investec Henderson Crosthwaite Securities Ltd and Igen Ltd v Wong [2005] IRLR 258. In Igen Ltd v Wong [2005] IRLR 258 the Court of Appeal ruled that the guidance issued by the EAT in Barton v Investec Henderson Crosthwaite Securities Ltd should be applied in amended form as follows:-

(1) Pursuant to Section 63A of the 1975 Act, it is for the claimant who complains of [sex] discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant which is unlawful by virtue of Part 2, or which, by virtue of Section 41 or Section 42 of the 1975 Act, is to be treated as having been committed against the claimant. These are referred to below as 'such facts'.

(2) If the claimant does not prove such facts he or she will fail.

(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that 'he or she would not have fitted in'.

(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.

(5) It is important to note the word 'could' in Section 63A(2). At this stage the Tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a Tribunal is looking at the primary facts before it to see where inferences of secondary facts could be drawn from them.

(6) In considering what inferences or conclusions can be drawn from the primary facts, the Tribunal must assume that there is no adequate explanation for those facts.

(7) These inferences can include, in appropriate case, any inferences that it is just and equitable to draw in accordance with Section 74(2)(b) of the 1975 Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within Section 74(2) of the 1975 Act.

(8) Likewise, the Tribunal must decide whether any provision of any relevant Code of Practice is relevant and, if so, take it into account in determining such facts pursuant to Section 56A(1) of the 1975 Act. This means that inferences may also be drawn from any failure to comply with any relevant Code of Practice.

(9) Where the claimant has proved facts which conclusions could be drawn that the employer has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the employer.

(10) It is then for the employer to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.

(11) To discharge that burden it is necessary for the employer to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive.

(12) That requires a Tribunal to assess not merely whether the employer has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.

(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a Tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or Code of Practice.

The Tribunal also considered the following authorities Madarassy v Nomur International PLC [2007] EUCA Civ, Laing v Manchester City Council [2006] IRLR 748 and Mohmed v West Coast Trains Limited [2006] UKEAT 0682053008. It is clear from those authorities that in deciding whether a claimant had proved facts from which the Tribunal could conclude in the absence of an adequate explanation that discrimination had occurred, the Tribunal must consider evidence adduced by both the claimant and the respondent.

6. The Tribunal is not satisfied that the claimant has proved facts from which the Tribunal could conclude in the absence of an adequate explanation that the claimant was subjected to unlawful discrimination. We have reached that conclusion for the following reasons:-

(a) the proportion of Catholic candidates who were appointed to the rank of Sergeant (60.7%) is greater than the proportion of Protestant candidates (53.4%);

(b) the member of the panel who received greatest criticism for her method of marking – Miss L – is a co-religionist of the claimant. In RUC Chief Constable v A [2000] NI, , LCJ Carswell as he then was criticised the Tribunal for accepting "that a senior officer of one religious faith was biased against a junior officer on the ground that he shared adherence to that faith. This is on its face so extraordinary a proposition that one must look for some evidence to support it or some compelling reason why it might be accepted. One finds only the remark in Paragraph 11 of the case that:-

"The Tribunal was further aware that although co-religionists may be less likely to discriminate against each other on the ground of religion, such discrimination could occur."

The reasoning in our opinion falls far short of a sufficient ground for acceptance of such a remarkably unlikely conclusion."

In this case, we have heard no evidence to support the conclusion that Miss L treated the claimant less favourably on grounds of his religion. The claimant contended that Miss L was the junior person on the panel and therefore would have been unduly influenced by her Protestant colleagues. The Tribunal does not accept this contention. Miss L was a senior ranking police officer and we are not satisfied that the mere difference in rank is sufficient to justify a conclusion that the reason for any deficiency in her marks was the claimant's religion.

(c) It must be borne in mind that unlawful discrimination requires a finding of less favourable treatment in comparison to others of a different religion, in similar circumstances, and also a finding that the ground for the treatment was religion. The Tribunal is satisfied that the claimant did suffer less favourable treatment in that he did not receive a mark for his crime team specialism and he did not receive a mark for relief collator whilst Constable S L B (P) received a mark for a specialism which was not cited in answer to Questions 1, 2 or 3, and also received more marks for acting as a Sergeant. However the Tribunal is not satisfied that the claimant has proved facts from which in the absence of an explanation the Tribunal could conclude that the reason for that treatment was the claimant's religion. It is clear from the facts proved by the respondent that in respect of areas where the claimant alleged Protestants were over marked, Catholics also benefited on the same basis. There are also examples of Protestants who did not get the marks they were clearly entitled to, such as Constable C who was a graduate and got no marks for personal development, whereas he ought to have received two marks. Flawed though the system may have been, there is no basis for concluding that the reason for less favourable treatment was religion.

(d) The selection process for the promotion of Constables to the rank of Sergeant consisted of two parts, a paper sift exercise and if the candidate gained sufficient marks, an interview. The claimant gained sufficient marks to be invited to attend an interview. However, the interview process was not challenged by the claimant and consequently we have heard no evidence from either party as to whether the marks awarded at the interview stage were justified. The claimant has focused only on the marks awarded at the paper sift stage on the basis that if he can show that he ought to have received two extra marks at this stage, he would have gained sufficient marks to be promoted. In our view, that approach is unhelpful. It would be very difficult for any Tribunal to be satisfied that the claimant has proved facts from which in the absence of an adequate explanation the Tribunal could conclude that discrimination has occurred in circumstances where the Tribunal has only examined part of the selection process in which the claimant was involved.. Furthermore, if the claimant is correct that he was marked down by reason of his religion it is odd that they gave him sufficient marks to go forward to the interview stage.

The claim is therefore dismissed.

7. However, although the Tribunal accepts that the claimant was not unlawfully discriminated against, it is not satisfied that the promotion exercise was conducted in a systematic, objective or transparent manner. Nor, is the Tribunal satisfied that the procedures adopted were likely to result in the best candidates being promoted. Our reasons are as follows:-

(a) Neither the panel, nor any individual member of the panel considered the full contents of any candidate's application forms. Whilst we appreciate that with 269 candidates to be assessed, it took less time for each member of the panel to read certain sections of the application form rather than the whole form, the consequence was that the panel did not get a full picture of the suitability of each candidate. An obvious example of the deficiency in the procedure is the fact that the claimant's specialist experience as a 'relief collator' was simply not taken into account because he had provided the information in response to Question 5, and Miss L who was responsible for marking experience, did not mark Question 5. If this experience had been taken into account, and if the claimant had received the mark for experience in 'crime team' he would have gained enough marks to have been promoted.

(b) No objective yardstick was used to measure the extent of a candidate's experience in specialist departments. A candidate was given a mark for a specialist department whether he was there for two weeks or two years. The Tribunal accepts that the claimant had previously been told that only secondments of at least three months were taken into account. Whether this is an appropriate yardstick is not for the Tribunal to say, but there ought to be an objective standard against which the experience of candidates can be measured.

(c) Insufficient weight was attached to a candidate's acting-up experience to the role of Sergeant. The claimant set out in detail the roles which he had carried out as a Sergeant in the nine month period before the promotion exercise. He got one mark. A candidate who had applied for a course – even if he did not get a place on the course – got the same mark. There can be no doubt that the claimant had demonstrated to his reporting officer that he was an outstanding Sergeant while acting-up to that role. When one considers the extensive roles the claimant had carried out, in addition to the glowing recommendation of his superior officer who had appointed him to act-up as Sergeant, it is difficult to reconcile the marking system at the paper sift stage with the principle of merit. This is particularly so, when the line manager of one of the candidates appointed did not recommend her for the promotion, albeit that the Sub Divisional Commander did not share this view.

(d) As the Tribunal has stated, the panel was provided with all official records pertaining to each candidate. The panel chose not to read all the documents provided. There can be no doubt that the reason each candidate was told in 'block capitals' to ensure that the personnel record was correct was because it was envisaged that the assessment of candidates would be based on the official record. If Miss L had assessed candidates in an objective and systematic manner, she would have relied only on that record. The record ought to have contained details of each candidate's beat and patrol experience and specialist departments and if it was incomplete the responsibility lay with the candidate. However, Miss L did not restrict her assessment to the records. In so doing, she introduced a wholly subjective element into the process. The panel did not agree in advance what additional information Miss L could take into account, nor had Miss L any means of corroborating what a candidate stated, if it differed from the official record. It was assumed that the supervisory officer who signed the form would have spotted any false assertions.

(e) Because the panel chose not to consider all the documents provided to it, the panel was not aware that one of the candidates promoted had a sickness record of 209 days in a period of six years, ten months. Another officer promoted had been off sick for three months in a total period of 22 months service and had experience in only one area of beat and patrol. Of course, there may have been good reason for the periods of sickness, but the panel did not even take the sick records into account although they were provided with them.

(f) The panel did not record reasons for the marks given. As a result, it was very clear to the Tribunal that neither Miss L nor Mr Lamont really knew why they had made the assessments of candidates, and were reduced to effectively 're-marking the papers' in order to justify the marks. It was also clear that there was no consistency in the manner in which marks were awarded nor was there any objective basis for marks, particularly in relation to Miss L's assessment.

(g) However, in the Tribunal's view, fault with this process should not be laid solely at the door of this panel. Miss L had not been trained as an assessor and had not previously sat on a promotion panel. The Tribunal heard no evidence from the respondent why she was required to carry out this duty in these circumstances. Furthermore, Miss L was not informed by her employer that a claim had been brought until 2003. It should have been apparent that as part of the promotion panel, Miss L would be required to give evidence and justify her assessment of candidates.

(h) The Human Resources Department played no role in this promotion process, and the input from the Equal Opportunities Unit was minimal. The panel was left to design the procedure itself without any guidance from those whose responsibility it was to ensure objective and systematic promotion procedures.

(i) The Tribunal is also concerned that the claimant was provided with inaccurate and misleading information in relation to the scoring method adopted by Miss L. Miss L accepted that she had provided erroneous information to her legal advisers, but explained that she had been retired for some years and had not read all the relevant documents at the material time. She said that it was only as the case progressed that she recalled the detail of her scoring method. Clearly, if the scoring method had been recorded at the time of the promotion exercise this situation would not have arisen. The consequence was that the claimant prepared his case on the basis of incorrect information and it was only during his cross-examination that he was made aware of the actual scoring system. In our view, this placed the claimant at a considerable disadvantage in presenting his case. Furthermore, the misleading information fuelled the claimant's belief, though erroneous, that he had been discriminated against on grounds of religion.

Chairman:

Date and place of hearing: 29 January 2007 – 2 February 2007;

5 – 9 February 2007;

12 – 16 February 2007;

19 February 2007; and

20 March 2007

Date decision recorded in register and issued to parties: