Fair Employment Tribunal Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIFET/2008/00140.html
Cite as: [2008] NIFET 140_00 FET, [2008] NIFET 140_ FET

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THE FAIR EMPLOYMENT TRIBUNAL

CASE REF: 140/00 FET

CLAIMANT: Kevin Curley

RESPONDENTS: 1. Chief Constable of the Police Service of Northern Ireland

2. Superintendent McCallum

DECISION ON REMEDY

The decision of the Tribunal is that it is ordered that the first-named respondent shall pay to the claimant the sum of £10,605.32.

Constitution of Tribunal:

Chairman: Mr P Kinney

Members: Mrs McFarline

Mrs McCormick

Appearances:

The claimant appeared and represented himself.

The respondents were represented by Mr Dunlop, Barrister-at-Law, instructed by Crown Solicitors Office.

This hearing was convened pursuant to a Decision of the Tribunal that the claimant was discriminated against by the first-named respondent on the grounds of religious belief. This hearing is to consider Remedy.

The Tribunal heard evidence from the claimant, Mr McKeown, Ms McLearnon and Ms Boyce. The Tribunal was also referred to documents contained in the respondent’s bundle. The Tribunal only considered those documents in the bundles to which it was specifically referred.

The facts

It was accepted by the parties at this hearing that the first act of discrimination by the first-named respondent was in the appointment of Constable MH on 10 January 2000. The claimant was not promoted to the rank of Sergeant until 10 April 2000.

The difference between the pay the claimant actually received and what he would have been paid if promoted on 10 January 2000 was a gross figure of £282 and a nett figure of £193.

The claimant’s overtime for the six months prior to his appointment as Sergeant in April 2000 was £3,378.32. In the six months immediately after his promotion to Sergeant his overtime was £2,477.80. The difference in pay based on the differing rates for Sergeant and Constables for the overtime the claimant worked between 10 January 2000 and 10 April 2000 is a figure of £84.83 gross and £65.32 nett.

The claimant was not able to do his Inspector’s exam in March 2000. However he would not have been entitled to sit the Inspector’s exam even if appointed on 10 January 2000 by virtue of the Royal Ulster Constabulary (Promotion) Regulations 1995. To be eligible for the 2000 Inspector’s exams, the claimant would have to have been a Sergeant from 1 November 1999.

The claimant sat the Inspector’s examination in 2001 but did not pass it. The claimant attributed the main reason for his failure to the impact on him of other events (not the subject of these proceedings) which occurred in or around the time of the exam.

He eventually obtained Part 1 of the Inspector’s examination in 2005 and Part 2 in 2006 and was appointed Inspector on 17 September 2007.

The claimant applied to go to Kosovo and was in Kosovo in November 2001 until May 2003.

The claimant did not sit the Inspector’s exam in 2004.

The claimant was entitled to receive a competency-related threshold payment from January 2005, this was £88.00 per month.

The claimant contended that he should be paid a further three months of this threshold payment if he had been promoted in January 2000. The first-named respondent contended that there was no loss.

The claimant had to attend the substantive hearing in this matter, the Remedies hearing and a number of Case Management Discussions. In order to attend these hearings he had to avail of paid leave and paid rest days. He did not use unpaid leave.

The claimant is a dedicated police officer who was subjected to unlawful discrimination by his employers. A large part of his life is his work. He is a resilient and strong-minded person, very focussed on his career.

Conclusions

The Tribunal assess the claimant’s financial loss in the sum of £193 for lost wages and £65.32 for lost overtime.

The claimant had contended that the Tribunal should award overtime on the basis of overtime eligibility as a senior Sergeant. His argument was that had he been promoted on 10 January 2000 he would have been a Sergeant for three months longer and therefore a senior Sergeant for three months longer. The Tribunal did not accept this argument. It considered that insufficient information was provided. There was no information regarding the level of overtime that was payable to a Sergeant as opposed to senior Sergeant to see what difference the additional three months in that grading may have made. The figures offered related to end of 2007 rather than the figures that may have applied at the date when the claimant was in fact appointed as a senior Sergeant. The Tribunal considered that it was impossible to accurately calculate any measure of loss on such a nebulous basis. However at the time of the discriminatory act the difference in overtime between Constable and Sergeant has been quantified and the Tribunal consider that to be a proper measure of the financial loss.

The tribunal did not make any orders in relation to the competency related threshold payment. It was not satisfied that any such loss had been proved by the claimant on the balance of probabilities.

The Tribunal then considered an award for injury to feelings. In considering this, the Tribunal paid particular regard to the guidelines set out in Vento v Chief Constable of West Yorkshire Police [2003] IRLR 102. The Tribunal was also mindful that it must be satisfied that the injury to feelings is properly attributable to the unlawful act. The Tribunal considered that there was significant hurt and distress caused to the claimant. There was discrimination over a period of two months. The discrimination in relation to the promotion of Constable MH on 10 January 2000 was compounded by the promotion of a second officer after the claimant had queried the first appointment but before the claimant himself was subsequently promoted. However the claimant was able to continue with his post and indeed gained further promotions. He made no allegation that he suffered ill-health effects. The Tribunal considered that the case should not be placed in the lowest band of Vento but should be assessed in the lower part of the middle band. The Tribunal considered that the appropriate compensation for injury to the claimant’s feelings is £6,000.

The claimant asked the tribunal to require the first-named respondent to reinstate his paid leave and rest days utilised in attending hearings relating to these proceedings. The tribunal does not consider that it has the power to make such an order.

The Tribunal is required to consider whether to award interest on the compensation order, regardless of whether or not either party has applied for the same. The Tribunal considers it appropriate to award interest for the injury to feelings aspect of the award from the date of the unlawful act (being 10 January 2000) to the date on which the interest is calculated at the applicable interest rate of eight percent. The interest on the compensation for pecuniary loss is awarded from the day which falls half way through the period of time from the date of the act of discrimination to the date on which the interest is calculated. It is payable at the same rate. The Tribunal calculates the interest on the injury to feelings award as £4,250.40 and the interest on the pecuniary loss as £96.60, having calculated these sums as follows:-

£6,000 @ 8% per annum = daily rate of £1.32 x 3220 days = £4,250.40

£258.32 @ 8% per annum = daily rate of £0.06 x 1610 days = £ 96.60

21. The total award made by the Tribunal is therefore £10,605.32

22. This is a relevant decision for the purposes of the Fair Employment Tribunal (Interest) Order (Northern Ireland) 1992.

Chairman:

Date and place of hearing: 6 October 2008, Belfast

Date decision recorded in register and issued to parties: