Fair Employment Tribunal Northern Ireland Decisions

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Cite as: [2008] NIFET 146_03FET

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FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 00146/03FET & 02219/01

CLAIMANT: Kevin Curley

RESPONDENT: Chief Constable of the Police Service of Northern Ireland

DECISION

The unanimous decision of the Tribunal is that the claimant’s claim of unlawful discrimination on the ground of religious belief and victimisation are dismissed.

Constitution of Tribunal:

Chairman: Mr S A Crothers

Members: Mr R Gourley

Mr J McClean

Appearances:

The claimant was present and represented himself.

The respondent was represented by Mr J Dunlop, Barrister-at-Law, instructed by the Crown Solicitor’s Office.

THE CLAIM

1. The claimant claimed that he had been unlawfully discriminated against on the ground of religious belief, and was victimised by the respondent. The respondent denied his allegations in their entirety.

THE ISSUES

The issues before the Tribunal, as agreed by the parties, were as follows:-

(1) Was the claimant unlawfully discriminated against on the ground of his religious belief in not being allowed to deploy to Kosovo on 8 May 2001?

Was the claimant victimised?

SOURCES OF EVIDENCE

3. The Tribunal heard evidence from the claimant. It also heard evidence on behalf of the respondent from a number of witnesses some of whom have since retired. The designations attached to their names are those pertaining to them at all material times for the purposes of this case. The respondent’s witnesses were Superintendent Terry Shevlin, (Sub-Divisional Commander at Magherafelt), Superintendent Dawson Cotton, (Chief Inspector ‘G’ Department (Complaints and Discipline)), Superintendent John Lindsay (DCU Commander at Magherafelt), Chief Superintendent Wesley Wilson, (Superintendent and Head of Career Management ‘B’ Department (Personnel)), and Acting Assistant Chief Constable (“ACC”) Wesley Lamont in charge of ‘B’ Department. The Tribunal was also presented with documentation from both parties and took into account only the documentation referred to in the course of evidence.

FINDINGS OF FACT

4. Having carefully considered the evidence insofar as same which was relevant to the issues before it, the Tribunal found the following facts proven on the balance of probabilities:-

The claimant who is Catholic presented his claim to the Tribunal on 25 May 2001. He was an Acting Sergeant employed by the respondent. Having applied for deployment in Kosovo and satisfied all the necessary criteria, Superintendent Roger McCollum of ‘B’ Department confirmed in writing on 2 March 2001 that the claimant would be deployed. This was scheduled to take place on 8 May 2001. On 5 March 2001 Reserve Constable Mary Bradley and Sergeant Hilda McDonald met with Superintendent Shevlin in his office. Reserve Constable Bradley, a female officer, made various allegations against the claimant. Some of these allegations related to assaults on members of the public. The most serious allegation related to her having entered a custody room upon hearing a scream and seeing the claimant holding a female prisoner by the throat. Following a Case Conference on 13 March 2001 involving Superintendent Peter Kane, Chief Inspector Tom Hughes, Lynn Curran from the Equal Opportunities Department and Superintendent Shevlin, a joint decision was made to temporarily transfer the claimant to Firearms Licensing Branch in Lisnasharragh. This took place on 14 March 2001. The Tribunal is satisfied that, in making this decision, those attending the Case Conference were aware of a serious complaint having been made by Reserve Constable Bradley when she was stationed in Greencastle. This became the subject of Tribunal proceedings and included serious complaints of sexual harassment and bullying.

The Tribunal is satisfied that Acting ACC Lamont played no material role in the decision-making process or in the decision itself to transfer the claimant on a temporary basis. Superintendent Shevlin, having made various enquiries on 6 March 2001, had already written to ‘B’ Department on 6 March 2001 as follows:- (following the text literally even though it contains certain errors)

“Due to allegations made by R/Const M Bradley RW 689 to me on Monday 5th March ammounting to victimisation by Sergt Curley (her Supervising Sergeant) and other related matters, and having consulted Equal Opportunities dept on 6th March as well as Divisional Commander ‘O’ I consider it imperative that Sergt Curley is removed from Magherafelt immediately.

Also due to some of the concerns raised by R/Const Bradley I would strongly recommend the Sergeant is temporarily removed from duties involved with contact with the public for the maintenance of the reputation of the organisation until a thorough investigation is conducted.

I have restricted the Sergeant on the late turn 6th March to indoor file duties with strict instructions via the D/SDC Magherafelt to have no contact with R/Const Bradley. This followed a request in person to C/Insp Hughes ‘B’ dept on 6th March at 1600hrs to transfer Sergt Curley.. The Chief Inspector requested a report in writing before proceeding with any transfer action supported by Divisional Commander ‘O’.

It was impracticable to proceed any quicker with a written request than first thing on 7th March.

Forwarded for necessary action”.

Again, in his report to ‘G’ Department dated 6 March 2001 Superintendent Shevlin states, inter alia, that:-

“I consider it imperative that these matters are investigated immediately and thoroughly and I have taken steps via DIV COMM ‘O’ and ‘B’ Dept to have Sergt Curley temporarily transferred pending an investigation”.

Superintendent Shevlin is Catholic.

(iii) In his direct discrimination claim on the ground of religious belief, the claimant named Acting Sergeant Samuel Sloan, a Protestant, as his comparator. He was allowed to deploy to Kosovo on 8 May 2001. At the time of his deployment Reserve Constable Dunseith had made a number of allegations against Sergeant Sloan. None of these involved allegations of serious assaults on members of the public. These allegations were also made the subject of an investigation. The Tribunal accepts Acting ACC Lamont’s evidence that whereas Acting Sergeant Sloan was abusing his authority leading to allegations including bullying and harassment, these were “not in the same league” as allegations made against the claimant involving members of the public which were also referred to the Office of the Police Ombudsman for Northern Ireland established in December 2000. Acting ACC Lamont was in charge of ‘B’ Department and had responsibility for the day to day running of ‘G’ Department.

(iv) On 20 March 2001 Acting ACC Lamont requested a suitability report regarding the claimant from Chief Superintendent Wesley Wilson who was then the Superintendent and Head of Career Management – ‘B’ Department. In the course of compiling his report, Chief Superintendent Wilson also received a report from the Acting Divisional Command Unit Commander at Magherafelt, John Lindsay. The Tribunal also carefully examined this report together with the evidence given by Superintendent Lindsay and Chief Superintendent Wilson. They, together with ACC Lamont, were Protestant. It is a consistent theme in these reports and in the respondent’s evidence that because of the serious allegations of assaults on members of the public, the claimant was deemed unsuitable for deployment to Kosovo. The claimant also gave evidence in relation to a number of other officers with complaints/allegations against them who were also deployed to Kosovo, and whom he named as comparators in his victimisation claim. The Tribunal is satisfied that the allegations/complaints against them did not, on the evidence, merit the threshold of concern raised in relation to the serious allegations made against the claimant involving members of the public. Apart from the serious allegation involving holding a female prisoner by the throat, the Tribunal accepts Acting ACC Lamont’s evidence that the allegations that the claimant had boasted that he had broken a prisoner’s jaw and that Reserve Constable Bradley saw him kicking another prisoner as he was being brought out of a police car in Magherafelt station, were also serious. A less serious allegation was that he had made a sexist and inappropriate remark to Reserve Constable Bradley. The allegation that the claimant referred to some of his section as “louts” was not a serious allegation. Allegations were also made that the claimant had overlooked Reserve Constable Bradley for driving duties during a time of shortage of drivers, and that he had not treated her fairly in detailing duty.

(v) The claimant referred to previous Fair Employment Tribunal proceedings in which Acting ACC Lamont and Superintendent Wilson had been involved. These were the protected acts for the purposes of his victimisation claim. The Tribunal is satisfied that Chief Superintendent Wilson was aware at the time of completing his suitability report of previous Fair Employment Tribunal proceedings involving the claimant. The Tribunal is not satisfied that Superintendent John Lindsay was also aware of previous Fair Employment Tribunal proceedings brought by the claimant against the Royal Ulster Constabulary/Respondent at the time of completing the report which he then sent to Superintendent Wilson. The Tribunal however accepts that Superintendent Shevlin was not aware of previous Tribunal proceedings at the relevant time and is satisfied, at any rate, that he would have taken the same action against any officer in the same or similar circumstances.

Acting ACC Lamont who was also aware of previous Fair Employment Tribunal proceedings brought by the claimant made the decision in the circumstances not to deploy the claimant. He was unaware of any complaint against Samuel Sloan prior to his deployment to Kosovo on 8 May 2001. The Tribunal accepts Superintendent Shevlin’s evidence that it would have been entirely inappropriate for him to have initiated his own investigation into the allegations made by Reserve Constable Bradley. Chief Inspector Cotton was appointed on 5 April 2001 to investigate the complaints against the claimant. He met with the claimant on 8 August 2001. Acting ACC Lamont retired on 3 September 2001. It subsequently became apparent to his successor that the position with the investigation was such that the claimant could be permitted to go to Kosovo in November 2001.

(vii) The Tribunal also had regard to the respondent’s Policies and Codes in so far as same were relevant to the issues before it.

THE LAW AND BURDEN OF PROOF

5. (i) The relevant law in relation to the claim of direct discrimination is to be found in Article 3 of the Fair Employment and Treatment (Northern Ireland) Order 1998. The relevant provision reads as follows:-

“3.—(1) In this Order “discrimination” means—

(a) discrimination on the ground of religious belief or political opinion; or

(b) discrimination by way of victimisation;

and “discriminate” shall be construed accordingly.

(2) A person discriminates against another person on the ground of religious belief … in any circumstances relevant for the purposes of a provision of this Order … if —

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

(3) A comparison of the cases of persons of different religious belief … under paragraph (2) … must be such that the relevant circumstances in the one case are the same, or not materially different, in the other”.

The law in relation to victimisation is found in Article 3(4) and (5) of the Order as follows:-

“(4) A person (“A”) discriminates by way of victimisation against another person (“B”) in any circumstances relevant for the provisions of this Order if—

(a) he treats B less favourably than he treats or would treat other persons in those circumstances; and

(b) he does so for a reason mentioned in paragraph (5).

(5) The reasons are that—

(a) B has—

(i) brought proceedings against A or any other person under this Order; or

(ii) given evidence or information in connection with such proceedings brought by any person or any investigation under this Order; or

(iii) alleged that A or any other person has (whether or not the allegation so states) contravened this Order; or

otherwise done anything under or by reference to this Order in relation to A or any other person; or

(b) A knows that B intends to do any of those things or suspects that B has done, or intends to do, any of those things.

(6) Paragraph (4) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.”

(ii) In contrast to the comparison exercise to establish less favourable treatment in direct discrimination claims, the comparison exercise involved in victimisation claims does not take into account factors such as the religious belief of the claimant. The correct comparison is with a person who has not done a protected act and factors such as that person’s religious belief are immaterial.

(iii) Regulation 24 of the 2003 Fair Employment Regulations inserts a new section 38A in the 1998 Order. It deals with the burden of proof and provides:-

“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 complainant, 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;

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”.

Regulation 24 applies in relation to proceedings instituted before 10 December 2003.

(iv) In the case of Igen Ltd (formerly Leeds Carers’ Guidance) and Others -v- Wong; Chamberlain Solicitors -v- Emokpae; Brunel University –v- Webster [2005] IRLR 258, the Court of Appeal in England and Wales set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race and disability discrimination. This guidance also applies to cases of discrimination on the grounds of religion/political opinion and victimisation and states 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 provided 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 cases, 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 from 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 they 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 poof. In particular, the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or Code of Practice.”

6. Submissions

The parties provided written submissions which are annexed to this decision. The Tribunal also heard further oral submissions on 1 October 2008. All of these submissions were carefully considered by the Tribunal.

Case Law and Conclusions

7. The Tribunal has considered the claims of victimisation and the protected acts referred to by the claimant in his evidence. The Tribunal is not satisfied however that a causal nexus has been established by the claimant between the fact of having done any of the protected acts he referred to in his evidence and the decision by the respondent not to deploy him to Kosovo on 8 May 2001. In this respect the Tribunal had regard to the cases of Aziz -v- Trinity Street Taxis Limited [1988] ICR 534, Chief Constable of West Yorkshire Police -v- Khan [2001] IRLR 830, and the House of Lords decision in St Helen’s Metropolitan Borough Council -v- Derbyshire and others [2007] IRLR 540. The claims of victimisation are therefore dismissed.

8. (1) The Tribunal considered the Northern Ireland Court of Appeal decision in McDonagh & Others -v- Hamilton Thom Trading as the Royal Hotel Dungannon (2007) NICA 3 together with the cases of Madarassy -v- Nomur International PLC (2007) IRLR 246 (“Madarassy”), Laing -v- Manchester City Council (2006) IRLR 748 EAT and Mohmed -v- Westcoast Trains Ltd (2006) UK EAT O682053008. It is clear from those authorities that in deciding whether a claimant has 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, putting to one side the employer’s explanation for the treatment. As Lord Justice Mummery stated in Madarassy at paragraphs 56 and 57 -

“The Court in Igen –v- Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the Tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.

‘Could conclude’ in s.63A(2) must mean that ‘a reasonable Tribunal could properly conclude’ from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory ‘absence of inadequate explanation’ at this stage …, the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by S.5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment”.

(2) The Tribunal considered the recent House of Lords decision in Watt (formerly Carter) (sued on his own on behalf of the other members of the Labour Party) –v- Ashan [2007] UKHL 51, [2008] IRLR 243 and in particular the judgement of Lord Hoffman at paragraph 36 where he states:-

“The discrimination which section 12 makes unlawful is defined by section 1(1)(a) as treating someone on racial grounds “less favourably than he treats or would treat other persons”. The meaning of these apparently simple words was considered by the House in Shamoon –v- Chief Constable of the Royal Ulster Constabulary (2003) ICR 337. Nothing has been said in this appeal to cast any doubt upon the principles there stated by the House, but the case produced five lengthy speeches and it may be useful to summarise:

(1) The test for discrimination involves a comparison between the treatment of the complainant and another person (the “statutory comparator”) actual or hypothetical, who is not of the same sex or racial group, as the case may be.

(2) The comparison requires that whether the statutory comparator is actual or hypothetical, the relevant circumstances in either case should be, or be assumed to be, the same as, or not materially different from, those of the complainant: section 3(4).

(3) The treatment of a person who does not qualify as a statutory comparator (because the circumstances are in some material respect different) may nevertheless be evidence from which a Tribunal may infer how a hypothetical statutory comparator would have been treated: see Lord Scott of Foscote in Shamoon at paragraph 109 and Lord Rodger of Earlsferry at paragraph 143. This is an ordinary question of relevance, which depends upon the degree of the similarity of the circumstances of the person in question (the “evidential comparator”) to those of the complainant and all the other evidence in the case”.

(3) The Tribunal is not satisfied that the claimant has proved facts from which conclusions could be drawn that he was treated less favourably on the ground of religious belief (and/or victimisation, had this claim not already been dismissed on another basis). The claimant’s circumstances involved much more serious allegations involving members of the public, than those pertaining to his comparator. Furthermore, the Tribunal concludes that the reason for his non-deployment to Kosovo was because of these serious allegations. The fact that he was subsequently deployed following an assessment of the investigation at a later stage adds weight to this conclusion. The claimant’s claims against the respondent are therefore dismissed.

Chairman:

Date: 8-19 September 2008 and 1 October 2008, Belfast

Date decision recorded in register and issued to parties:

IN THE OFFICE OF THE INDUSTRIAL TRIBUNALS AND THE FAIR
EMPLOYMENT TRIBUNAL
CASE NO. 2219/01 and 146/03 FET

BETWEEN:
KEVIN CURLEY
CLAIMANT

AND

THE CHIEF CONSTABLE OF PSNI

RESPONDENT

SUBMISSIONS ON BEHALF OF THE RESPONDENT

The Background

The Claimant alleges in these proceedings that he has been discriminated against on the grounds of religious belief and/or victimised by reason of having done a protected act, namely brought specified proceedings under the discrimination laws.

The claim arises out of a decision taken by A/ACC Lamont to defer the Claimant’s intended deployment to Kosovo in or around 8 May 2001 pending the investigation

of a disciplinary complaint against him by one R/Con Mary Bradley, which was made on or about 5th March 2001.

R/Con Mary Bradley made a complaint to Supt Shevlin that the Claimant had, inter alia, committed an act of sexual harassment/discrimination against her, that he had been unfair to her in his dealings with her and allocation of duties, that he had assaulted one female prisoner in custody, that he had assaulted another
prisoner/member of the public whilst handcuffed to him, that he had assaulted two other members of the public/prisoners and that he had boasted that he had once broken a someone’s jaw.

Mr Shevlin spoke with his line managers and equal opportunities and requested, in view of the seriousness of the allegations (and, in relation to the sex discrimination element, the background of R/Con Bradley having previously been the victim of sexual harassment) that the Claimant be transferred from Magherafelt DCU and also removed from operational deployment. He received advice from equal opportunities that this was appropriate pending investigation. A case conference was requested by him, which was arranged, and attended by senior officers (inc Mr Peter Kane) and equal opportunities and Mr Shevlin. The case conference confirmed the decision to transfer the Claimant to Firearms Branch, a non operational deployment.

Kosovo was an operational deployment.

The complaint was notified to G department (complaints and discipline) for investigation and to B department (personnel).

The G department passed that part of the complaint dealing with the assaults to PONI. Mr Dawson Cotton of G department conducted the investigation. Indeed, he conducted the interviews of witnesses, in effect, for PONI.

It would appear that, in light of this background, the matter of the Claimant’s suitability to be deployed to Kosovo in May 200t was addressed by B department. A suitability report was requested from Gary Strain by CI Hughes. Mr Strain passed the request to Magherafelt DCU. A report was prepared by Supt John Lindsay. This recommended that the Claimant would not be deployed to Kosovo at that time.

In April 2001, Mr Cotton produced a preliminary report where he stated (in broad terms) that further enquiries were required, that the investigation was likely to take some time and that he could not at that stage comment on the Claimant’s suitability for deployment to Kosovo.

Mr Wesley Wilson was then asked to report to the A/ACC Lamont on the suitability
of the Claimant for deployment at that time. His report related the findings of Mr
Lindsay, the matters concerning the specific complaint by R/Con Bradley and Mr
Cotton’s comments. The central matter was the seriousness of the complaint by

R/Con Bradley. The high number of previous complaints against the Claimant of an assault type/nature was referred to in the context of trending and tracking.

A/ACC Lamont then made the decision to defer the Claimant’s deployment to Kosovo in May 2001. This was not a decision not to deploy the Claimant but a decision to defer deployment pending further investigation.

A final report was prepared by Mr Cotton on 2^nd September 2001 recommending advice and guidance for the Claimant.

On or about 13th September 2001 the Claimant was advised to prepare for deployment to Kosovo in November 2001. The Claimant did then deploy in November 2001.

The Claimant relies on a Sergeant Sloan as his comparator in relation to his claim of religious discrimination.

He relies on a number of other comparators in relation to his claim for victimisation. It is to be noted that the Claimant’s comparators in this regard have varied.

It is also to be noted that Mr Shevlin and Mr Kane were Roman Catholic. Mr Lindsay is married to a Roman Catholic and his children are brought up Roman Catholic. Mr Wilson confirmed that he has a Protestant background.

The Issues
The issues for the Tribunal are, therefore:

Did the Respondent discriminate against the Claimant on the grounds of his religious belief, contrary to the provisions of the Fair Employment and Treatment (NI) Order 1997 in the decision to defer his intended deployment to Kosovo on 8th May 2001?
Did the Respondent victimise the Claimant on the grounds of his having brought proceedings in the Fair Employment Tribunal (as protected acts) in the decision to defer his intended deployment to Kosovo on 8th May 2001?

The Law

Unlawful Discrimination on the Grounds of Religions Belief:

By virtue of Article 3 of the Fair Employment and Treatment (NI) Order 1998:

“(‘1) In this Order “discrimination” means-

(a) discrimination on the ground of religious belief or political opinion; or
(b) discrimination by way of victimisation’’.

(2) A person discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of this Order if—

on either of those grounds he treats that other person less favourably than he treats or would treat other persons; or
he applies to that other person a requirement or condition which he applies or would apply equally to persons not of the same religious belief or political opinion as that other but –
1. which is such that the proportion of persons of the same religious belief or of the same political opinion as that other who can comply with it is considerably smaller than the proportion of persons not of that religious belief or, as the case requires, not of that political opinion who can comply with it; and
2. which he cannot show to be justifiable irrespective of the religious belief or political opinion of the person to whom it is applied; and
3. which is to the detriment of that other because he cannot comply with it.”

In addressing the question of less favourable treatment, the claimant must prove that he has been treated less favourably than the person or persons with whom he compares himself.

In this regard, case law has clearly established that like must be compared with like.

In Shamoon —v- Chief Constable of the RUC [20031 UKHL 11, a chief inspector had been carrying out staff appraisals . Following a complaint against her this task was taken away from her. Two chief inspectors in two different divisions continued to perform appraisals. Ms Shamoon argued that she had been treated less favourably than the men. The House of Lords held that there were material differences between Ms Shamoon and the two men as they had not been the subject of complaints and they worked in a different department. Therefore they were not proper comparators.

Lord Scott said that the comparator must be:

‘‘in the same position in all material respects as the victim, save only that he, or she, is not a member of the protected class

In Macdonald —v- Advocate General for Scotland [2003] UKHL 34, Lord Hope held that except for the protected grounds (sex, race, disability, sexual orientation, religion or belief):
“all characteristics of the complainant which are relevant to the way his case was dealt with must be found also in the comparator.”

Similarly, in Chief Constable of the RUC—v- SergeantA [2000] NI 261, the complainant was a Roman Catholic officer in the RUC, holding the rank of sergeant, He was caught driving at a time when his blood alcohol was over the legal limit. He was suspended from duty almost immediately and was ultimately dismissed from the police service. Later in the same year, another sergeant in the RUC, Sergeant DH, was also found to have driven while his blood alcohol level was over the legal limit; Sergeant DH was a Protestant. Although ultimately dismissed he was not immediately suspended — indeed he was not suspended until several months after the incident.

Sergeant A claimed that he had been subjected to religious discrimination because of the fact that he had been so speedily suspended and Sergeant DH had not been suspended for several months. The FET upheld his complaint. The Tribunal considered that Sergeant DH was an appropriate comparator because in its view the two incidents were not materially different and the same officers had made the two decisions relating to suspension.

The Court of Appeal allowed the Chief Constable’s appeal. It considered that Sergeant DR was not an appropriate statutory comparator because the relevant circumstances of the two cases were not sufficiently similar due to the existence of certain aggravating factor surrounding the incidents and the record and performance of each officer.

Carswell LCJ stated: “In our opinion the circumstances which are to be regarded as relevant for the purposes ... are those upon which a reasonable person would place some weight in determining how to treat another. The tribunal has not stated in. para 14 of the case what criterion it has adopted of relevant circumstances for the purpose of making the comparison. It is apparent, however, that it cannot have been the one which we have formulated or any test of a similar nature. If it had, it would in our view have been bound to regard as relevant circumstances those features which it avowedly left out of account, although acknowledging that they were not the same, viz the aggravating features surrounding the incidents and the personal circumstances, record and performance of each sergeant. These features seem to us to be essential circumstances for any senior officer deciding upon suspension to taken into account. To limit the relevant circumstances to the factors upon which the tribunal based its consideration of the cases is artificial in the extreme and bears no relation to the proper mode of comparison of them. In failing to have regard to these features as relevant circumstances, the tribunal has in our view fallen into error. When one examines these features and takes them into account as relevant circumstances, it is in our opinion entirely clear that there were substantial differences between the two cases, It is in our view impossible to say that the relevant circumstances of each were the same or not

materially different, and we do not consider that any reasonable tribunal applying the proper criterion could reach that conclusion.

To make out a case .. a complainant has to show that the respondent has treated him less favourably than he treats or would treat other persons’. In the absence of evidence of a regular way in which other persons in the same circumstances of are treated, he has to prove that at least one other person in comparable circumstances has been treated djfferently, which may tend to show how others would have been treated they and not the complainant had been concerned The relevant circumstances of DH’s case could not in our opinion be regarded as comparable, for the reasons which we have set out. …

Where no apt comparison with the case under consideration is available it is
wrong to equate treatment which the tribunal finds to be unsatisfactory or even harsh with unlawfully discriminatory treatment in the absence of some
evidence pointing towards the conclusion that a person of a different religion would have been treated differently: see Marks and Spencer plc v Martins
[1998] ICR 1005.

If another employee of a different religion has been treated more favourably than he should have been, in the same or similar circumstances, the possibility of unlawful discrimination is raised and the tribunal is entitled to look to the employer for an explanation. It is right for the tribunal to look critically at that explanation, bearing in mind the difficulty offending evidence of actual discrimination and the need in many cases to resort to inference. But it should keep its mind open to the possibility that such unduly favourable treatment may be due to reasons other than religious discrimination, especially where the complainant has been treated in accordance with his deserts.’

The claimant must also establish that any less favourable treatment was by reason of the proscribed ground (in this case the Claimant’s religious belief). In Shamoon, Lord Nicholls summarised the test as being:

“...did the claimant, on the proscribed ground, receive less favourable treatment than others?”

This is a ‘but for’ test of causation:
‘…cases of direct discrimination… can be considered by asking the simple question: Would the complainant have received the same treatment from the defendant but for his or her sex?’ (James —v- Eastleigh BC [1990] 2 AC 751; Nagara Ian —v- London Regional Transport [1999] IRLR 572, HL).

In Sergeant A, Carswell LCJ also suggested that it was inherently unlikely that a Catholic ACC would discriminate on religious grounds against a Catholic Sergeant.

Victimisation:

By virtue of Article 3(4) of FETO:

‘a person (“A “) discriminates by way of victimisation against another person (“B “) in any circumstances relevant for the purpose of this Order i f;-

He treats B less favourably than he treats or would treat other persons in
those circumstances; and

He does so for a reason mentioned in paragraph (5).

The reasons at paragraph (5) are that:-

“B has:-

Brought proceedings against A or any other person under this Order; or Given evidence or information in connection with such proceedings brought by any person or any investigation under this Order; or

Alleged that A or any other person has (whether or not the allegation so stated) contravened anything in this Order; or

Otherwise done anything under or by reference to this Order in relation to A or any other person; or

A knows that B intends to do any of those things or suspects that B has done, or intends to do, any of those things.

As with direct discrimination, the proper comparator is between a person who has not done one of the protected acts alleged by the claimant. The circumstances must otherwise be the same — see Shamoon etc., and Chief Constable of West Yorkshire — v-Khan [2001] UKHL 48.

The claimant must show that he suffered less favourable treatment by reason of having done the protected act alleged. The alleged discriminator must have actual knowledge of the protected act alleged.

The Burden of Proof Provisions:

By virtue of Article 3 8(A) of FETO (as amended by the FETO (Amendment) Regulations (NI) 2003):

“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:-

has committed an act of unlawful discrimination or unlawful harassment
against the complainant; or

is by virtue of Article 35 or 36 to be treated as having committed such an act of discrimination or harassment against the complainant;

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 Article 38A’s equivalent provisions in the Sex Discrimination and Race Discrimination legislation has been set out by the English Court of Appeal in Wong —v- Igen Limited [2005] IRLR 258. In essence Igen sets out a 2 stage process. First, the claimant must prove facts from which the Tribunal could conclude that there has been the unlawful discrimination as alleged. If— and only if- the Claimant succeeds in doing this, then the burden of proof will shift to the Respondent to show on the balance of probabilities that he did not commit unlawful discrimination.

The Igen decision has been the subject of a number of further decisions including
Madarassy —v- Nomura International plc [2007) IRLR 246 (a race claim), Laing —v Manchester City Council [2006] IRLR 748 and Arthur —v- Northern Ireland
Housing Executive and SHL (UK) Limited [2007] NICA 25 (in relation to a disability claim).

In Madarassy, the English Court of Appeal said, inter alia, that:

“The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not without more, sufficient material from which the Tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination. ‘Could conclude’ in section 63A(2) must mean that ‘a reasonable Tribunal could properly conclude ‘from all the evidence before it. This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, c4fference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory ‘absence of an adequate explanation’ at this stage, the Tribunal needs to consider all the evidence relevant to the discrimination complaint, such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the claimant were of like with like [emphasis

added] as required by Section 5(3), and available evidence of the reasons for the differential treatment.

Although Section 63A(2) involves a two stage analysis of the evidence, it does not expressly or impliedly prevent the Tribunal at the first stage from hearing, accepting or drawing inferences from the evidence adduced by the respondent disputing and rebutting the claimant’s evidence of discrimination. The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the claimant; or that the comparators chosen by the claimant or the situations with which comparisons are made are not truly like the claimant or the situation of the claimant; or that, even if there has been less favourable treatment of the claimant, it was not on the ground of her sex or pregnancy. Such evidence from the respondent could, if accepted by the Tribunal, be relevant as showing that, contrary to the claimant’s allegations of discrimination, there is nothing in the evidence from which the Tribunal could properly infer a prima facie case of discrimination on the proscribed ground. The approach of Elias J in Laing —v- Manchester City Council would be approved...”

In Laing —v- Manchester City Council [2006] IRLR 748, Elias J said in relation to the two-stage process:

There seems to be much confusion created by the decision in Igen [2005] ICR 931. What must be borne in mind by a Tribunal faced with a race claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination. The shifting of the burden of proof simply recognises that there are problems of proof facing an employee which it would be very difficult to overcome f the employee had at all stages to satisfy the Tribunal on the balance of probabilities that certain treatment had been by reason of race.

….

No doubt in most cases it would be sensible for a Tribunal to formally analyse a case by reference to the two-stages. But it is not obligatory on them to formally go through each step in each case.

….

The focus of the Tribunal’s analysis must at all times be the question whether or not they can properly and fairly infer race discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for the Tribunal to say, in effect, ‘there is a nice question as to whether or not the burden has been shifted, but we are satisfied here that even f it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race,’

In Network Rail Infrastructure Limited —v- Griffiths-Ilenry [2006] IRLR 865, the EAT held:

‘A Tribunal at the second stage is simply concerned with the reason why the employer acted as he did. The burden imposed on the employer will depend on the strength of the prima facie case...

It would be inappropriate to find discrimination simply because an explanation given by the employer for the difference in treatment is not one which the Tribunal considers objectively to be justified or reasonable. Unfairness is not itself sufficient to establish discrimination.”

Similarly, in the Sergeant A case, Carswell LCJ delivering judgement for the NI Court of Appeal, urged Tribunals, in considering any explanation, to keep its mind open to the possibility that any unduly favourable treatment may be due to reasons other than unlawful discrimination. He also urged Tribunals to be on their guard against a tendency to assume that every procedural flaw, or every discrepancy in evidence, points towards a conclusion in discrimination. He stated:

“Discrepancies in evidence, weaknesses in procedure, poor record-keeping, failure to follow established administrative processes or unsatisfactory explanations from an employer may all constitute material from which an inference of religious discrimination may legitimately be drawn. But tribunals should be on their guard against a tendency to assume that every such matter points toward a conclusion of religious discrimination, especially where other evidence shows that such a conclusion is improbable on the facts.”

The Respondent’s Contentions

1. The Claimant has singularly failed to establish that he was treated less favourably than Sergeant Sloan.

2. The Claimant has further failed to show that his treatment was on the grounds of his religious belief or the fact of his having done a specified protected act.

3. There were material differences between the circumstances of Sgt Sloan and those of the Claimant:

a) There was no request for a transfer of Sgt Sloan from operational duties from his line manager;
b) There was no case conference in relation to Sgt Sloan;
c) There were no allegations of sexual harassment/discrimination against Sgt Sloan;
d) There were no allegations of assault on members of the public/prisoners against Sgt Sloan;
e) Mr Lamont, who made the decision, was not aware of Sgt Sloan;
f) Mr Lamont made clear that the key consideration for him was the serious allegations of assault against prisoners/members of the public — in particular the allegation of assault on the female prisoner in custody

as made by R/Con Bradley.

4. The Claimant has not shown that he was victimised by reason of having done a protected act:
a) With regard to the protected acts referred to by the Claimant there is no evidence as to when Mr Lamont had actual knowledge of them;
b) It is clear from the evidence that neither Mr Shevlin nor Mr Lindsay had actual knowledge of the alleged protected acts;
e) There is no evidence as to when Wesley Wilson had actual knowledge of them;
d) The senior officers, from whom the Tribunal heard evidence, both Protestant and Roman Catholic alike, gave clear and unequivocal evidence that neither religion nor the fact of the Claimant having done any protected act was a reason or material fact in the decision to defer
the deployment of the Claimant;
e) The decision was taken by Mr Lamont. The other officers — protestant and Roman Catholic alike — were clear in their evidence that they
would have been of the same view.

5. The Claimant has not established less favourable treatment on grounds of victimisation because the comparators relied upon by the Claimant are not the same in all material respects to the Claimant:
a) The Mary Bradley complaint nor the same allegations were not present;
b) The comparators have not been shown to have similar extant allegations/investigations or the same nature, extent, seriousness etc of allegations/investigations as those against the Claimant - nor was there any evidence as to the stage any such alleged investigations were at at the time of deployment;
c) There was no evidence that any of the comparators were deployed in May 2001 — indeed it would appear that a number were not deployed at that time;
d) There was only 1 sergeant comparator — Andrews — who was a Roman Catholic and who did not deploy as he withdrew form the selection process voluntarily;

e) None of these comparators were subject to a request from line management to transfer to non operational deployment;
t) None of these comparators were subject to case conference decisions to transfer to non operational deployment;
g) None of these other comparators were brought to attention of B department in way that the Claimant was: Mr Lamont was not therefore
required to make decisions in relation to these alleged comparators.

6. The decision to defer deployment to Kosovo was clearly rational, logical and
justifiable. Indeed, it is submitted that a decision having been taken at case
conference (which included at least 2 senior Roman Catholic officer — Supt
Shevlin and Peter Kane) to temporarily transfer the Claimant from operational
duties pending the investigation of the Mary Bradley complaint, it would have
been manifestly irrational to have deployed the Claimant to Kosovo at that
time.

7. Article 38A is not triggered as the Claimant has failed to establish less favourable treatment on the grounds of his religious belief or victimisation.

8. If (which is denied) Article 38A is triggered, the Respondent has proved on the balance of probability that its decision to defer deployment was not by reason of the Claimant’s religious belief or the fact of him having done any specified protected act.

9. In the circumstances, it is submitted that the Claimant’s case is without foundation and must be dismissed.

Jonathan L Dunlop

IN THE OFFICE OF THE INDUSTRIAL TRIBUNALS AND THE FAIR
EMPLOYMENT TRIBUNAL
CASE NO. 2219/01 IT and 146/03 FET

BETWEEN:
KEVIN CURLEY

APPLICANT

AND

THE CHIEF CONSTABLE OF PSNI

RESPONDENT

DRAFT CHRONOLOGY

20^th July1986 Claimant commences as Police Officer

10th April 2000 Claimant transfers to M’Felt as Sergeant

August 2000 Claimant applies for this Kosovo deployment

24th February 2001 Claimant alleges Mr Shevlin advises Claimant of Mary Bradley complaint (day after he had completed
appraisal — but complaint not made till 5 March 2001)

2^nd March 2001 Roger McCallum send minute to Claimant advising he
would be deploying to Kosovo

5^th March 2001 Mr Shevlin receives complaint from R/Con Mary
Bradley

6^th March 2001 Mr Shevlin contacts his line manager, C/Supt Morrison,
visits G Dept and speaks to C/I Dunne and spoke with Lynn Curran from Eq. Opps re. R/Con Bradley complaint. Mr Shevlin also speaks with C/I Tom Hughes “B” dept.
Mr Shevlin has further meeting with R/Con Bradley

7th March 2001 Mr Shevlin speaks with Sgt Mudge
Claimant telephones Mr Shevlin to ask about the allegations made by Bradley
Mr Shevlin speaks with Supt Peter Kane (G Dept) who advises Dawson Cotton would be appt as Investigating Officer for Bradley complaint

13th March 2001 Mr Shevlin attends case conference Lisnasharragh re.
the Claimant/Bradley complaint: present — Supt Kane,
C/I Hughes, Lynn Curran (EO) and Mr Shevlin.
Decision taken to transfer to Firearms Licensing
Branch.
Mr Shevlin advises Claimant of temporary transfer to
Firearms

14^th March 2001 Claimant transfers to Firearms Licensing Branch

15th March 2001 Claimant telephones Mr Shevlin alleging he was not being fairly treated

20^th March 2001 ACC Lamont requests Chief Inspector Career Management to prepare a suitability report re.
deployment to Kosovo

23^rd March 2001 Dawson Cotton formally appointed as Investigating Officer re. Claimant

9^th April 2001 John Lindsay sends report to CI Career Management

12^th April 2001 Last day of Kosovo training
Mr Hughes sends note to Mr Cotton re. the suitability of
the Claimant for deployment

13^th April 2001 Report by Acting Supt John Lindsay

19^th April 2001 Report from Wesley Wilson recommending non deployment to Kosovo until complaint investigation concluded and pattern of previous complaints examined regarding overall performance

20^th April 2001 Claimant alleges received telephone Call from CI McGarry advising he was not going to be deployed to
Kosovo on 8th May 2001

23^rd April 2001 Mr Lamont writes to C/S Craig (“G”) re. question of extension of Ombudsman investigation

25th April 2001 WC Craig Head of Complaints and Discipline writes to ACC Lamont advising 93 complaints and I disciplinary
investigation into the Claimant since 1993

[26th April 2001 Supt. Wesley Wilson’s report]

2^nd May 2001 Claimant claims received report from ACC Lamont advising he would not be deployed to Kosovo at that
time

8th May 2001. Date Claimant would otherwise have been going to Kosovo

15^th May 2001 Claimant writes to Supt Kane re. non deployment

16^th May 2001 Claimant submits his FETI

25^th May 2001 FET1 received by the Tribunals Office

1^st August 2001 Wesley Wilson writes to Ombudsman asking whether
Claimant can be deployed again operationally and asks
for Ombudsman’s views based on investigation

8^th August 2001 Dawson Cotton interviews the Claimant at. Lisnasharragh

12^th September 2001 T Hughes advises the Claimant that the temporary
transfer to stand until further information received and
Ombudsman and “G” dept. investigation ongoing

19^th September 2001 Ombudsman writes to Wesley Wilson confirming state of Ombudsman investigation; states deployment an
internal matter

22^nd October 2001 Decision taken to proceed with Claimant’s deployment to Kosovo

10^th November 2001 Claimant deployed to Kosovo

13^th March 2004 Statement by Claimant re. matters in R/Con Bradley complaint

DRAMATIS PERSONAE

The Claimant

R/Con Mary Bradley — maker of complaint against the Claimant whilst M’Felt

Supt Terry Shevlin — Then Sub-Divisional Commander, M’Felt DCU

(Then) D/Chief Supt Peter Kane — “G” Dept

(Then) C/I Tom Hughes — “B” Dept

(Then) Supt Roger McCallum — “B” Dept

(Then) Acting Assistant Chief Constable Wesley Lamont — “B” Department

Chief Supt. Wesley Wilson (then Supt and Head of Career Management — “B” Dept

(Then) Sum John Lindsay — DCU Commander, M’felt DCU

Supt. Dawson Cotton (Then Chief Inspector) — “G” Department

Lynn Curran — Equal Opportunities Officer within PSNI (A civilian position)

SOME TERMINOLOGY

DCU District Command Unit

Divisions — In general terms, represent geographic policing areas — i.e., “0” Division
included Magherafelt Divisional Command Unit

Departments — Units of the Police dealing with ‘topical’ areas — i.e, “B” Department =
Personnel Branch; “G” Department = complaints and discipline (latterly Internal
Investigation Branch and then Professional Standards Department)

PONI — Police Ombudsmand for Northern Ireland — generally deals with criminal investigations into individual police officers and/or complaints against police officers by members of the public. Generally, internal complaints are dealt with/investigated by “G” department.

Closing Submission Reference Case 146/03 FET

Relevant Case Law and Rules that I know about that I will be referring to in this submission.

3.1 1. The Tribunal made orders for the preparation and exchange of witness statements and that, without leave, such persons could not have given oral evidence to the Tribunal, in the absence of compliance with the said orders, there was no obligation, in the circumstances, on the part of the respondents to call such persons as witnesses on behalf of the respondent. Who the respondents called as witnesses was a matter for the respondents; who in this case were at all material times legally represented. The respondents advisers were fully aware of the potential consequences and implications for them of not calling any such persons to give oral evidence; including, if the Tribunal considered it appropriate and necessary to do so, in determining the claimant’s claim, the drawing of relevant adverse inferences from any failure to call any such persons to give oral evidence (see further in particular the judgment of Hutton J, as he then was, in the case of Lynch v Ministry of Defence [1983] NI 1 at Page 222 (Paragraphs f—h).

3.2 Witness statements have been a feature of litigation in the Courts and Tribunals in Great Britain (albeit not in Northern Ireland) for a number of years and detailed Rules of Procedure in relation to the provision and use of such statements in civil proceedings in Courts are to be found in the Civil Procedure Rules including, in particular, Rule 32 — which makes detailed provision, inter alia, relating to the requirement to serve witness statements for use at trial:-

“32(4)

(1) A witness statement is a written statement signed by a person which contains the evidence which that person will be allowed
to give orally.

(2) The Court will order a party to serve on the other parties any witness statement of the oral evidence which the party serving
the statement intends to rely on in relation to any issues of fact to be decided at the trial

(3) A Court may give directions as to —

(a) the order in which witness statements are to be

served and

(b) whether or not the witness statements are to be filed.

32.5

(1) - …
(a) a party is served a witness statement; and

(b) he wishes to rely at trial on the evidence of the witness who made the statement,

he must can the witness to give oral evidence unless the Court orders otherwise or he puts the statement in as hearsay evidence (Part 33 contains provisions about hearsay evidence).

(2) Where a witness is called to give oral evidence under Paragraph (1), his witness statement shall stand as his evidence- in-chief unless the Court orders otherwise.

(3) A witness giving oral evidence at trial may with the permission of the Court —

(a) amplify his witness statement; and

(b) give evidence in relation to flew matters which have arisen since the witness statement was served on the
other parties.

(4) The Court will give permission under Paragraph (3) only if it considers that there is good reason not to confine the evidence of the witness to the contents of his witness statement.

(5) If a party is served a witness statement does not —

(a) call the witness to give the witness to give evidence at trial; or

put the witness statement in as hearsay evidence,

any other party may put the witness statement in as hearsay evidence.

In this jurisdiction, there is no equivalent to Rule 32.4 or 32.5 of the Rules of the Supreme Court (Northern Ireland) 1980 as amended. However, it is apparent from the various textbooks in relation to Employment Tribunal procedure (such as Harvey on Industrial Relations and Employment Law) the Employment Tribunals in Great Britain have, where necessary and appropriate, followed and applied the provisions of the Civil Procedure Rules, including Rule 32, insofar as it relates to the use of witness statements, when exercising its powers under the relevant Rules of Procedure.

Under the Fair Employment Tribunal Rules of Procedure 2005, set out in Schedule 1 of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005 (‘the Rules of Procedure’), which commenced in April 2005 but are applicable to the conduct of these proceedings by virtue of the relevant transitional provisions, the Tribunal has the following powers — which are similar to those found in the equivalent Rules of Procedure governing the Employment Tribunals in Great Britain.

In particular, under Rule 9(2)(s) the Tribunal, under its general power to manage proceedings,- has power to- ‘order that a witness statement be prepared and exchanged’. As is normal practice in these Tribunals, since the commencement of the said Rules of Procedure, the Order made by the Tribunal, for the preparation and exchange of witness statements provides, inter alia, for a timetable for such exchange between the parties and also:-

“…

A witness statements must be a complete statement of the evidence that the witness wishes to give to the Tribunal. A witness will not be permitted to add to his statement without the consent of the Tribunal. Consent will only be given where there is good reason for doing so.
Each witness statement will be read aloud to the Tribunal, unless the Tribunal considers that it inappropriate to do so.
Witness statements will not normally be read by the Tribunal prior to the commencement of the hearing, unless the parties are otherwise informed.”

Under the Rules of Procedure, it is also provided as follows, insofar as relevant and material:-

Rule 13(2) —

“So far as it appears appropriate to do so, the Chairman or Tribunal shall
seek to avoid formality in his or its proceedings and shall not be bound by

any statutory, provision or rule of law relating to the admissibility of evidence in proceedings before the Courts.”

Rule 13(3)—

“The Chairman or the Tribunal (as the case may be) shall make such
enquiries of persons appearing before him or it and of witnesses as he or it considers appropriate and shall otherwise conduct the hearing in such manner as he or it considers most appropriate for the clarification of the issues and generally for the just handling of the proceedings.”

It is also provided under Rule 58(1):-

“Subject to the provisions of these Rules and Practice Directions, a Tribunal or Chairman may regulate it or his own procedure.”

The Tribunal in exercising its powers under the said Rules of Procedure is required to give effect to the overriding objective to deal with cases justly, as defined in Regulation 3 of the said Regulations, which provides, in regulation 3(2)—

“(2) Dealing with a case justly includes, so far as practicable

ensuring the parties are on an equal footing;
dealing with the case in ways which are proportionate to the complexity or importance of the issues;
ensuring that it is dealt with expeditiously and fairly; and
saving expense.”

The terms of the normal order relating to the use of witness statements in
Tribunal proceedings are made in accordance with the general procedural
powers set out above, governing the procedure of the Tribunals in
Northern Ireland.

Employment Tribunals in Great Britain, together with the Courts in Great Britain, have had long experience of the use of witness statements in proceedings. The Tribunals in Northern Ireland have only had power to order such statements since the commencement of the Rules of Procedure, referred to above, since in or about April 2005. I was again surprised by the respondent’s representatives deciding not to call witnesses that they had provided witness statements for to give evidence for the Respondents. I clearly expected, that all the persons who had prepared witness statements on behalf of the respondents, and which had been exchanged with

me in advance of the hearing in compliance with the Tribunal’s orders, would have been called to give oral evidence by the respondents; and I would have had the opportunity to cross-examine such witnesses in the normal way.

3. In the absence of any relevant legal authority from this jurisdiction, the Tribunal may considered the practice adopted in Great Britain, where, as stated above,, the use of witness statements in the course of litigation has been a long established practice. In particular the recently published edition of the leading textbook Disclosure — (3 Edition) by Paul Matthews and Hodge Malek .QC.

In particular, Paragraphs 17.26 and 27 where it is stated:

If a party, having duly served a witness statement, decides not to call the
witness to give evidence at trial, it is good practice that prompt notice of
this decision should be given to all other parties. The party should make plain when he gives this notice whether he proposes to put, or seek to put, the witness statement in as hearsay evidence. If he does not put the witness statement in as hearsay evidence, any other party may put it in as hearsay evidence. This does not preclude an application by the party who originally served the statement for an Order that the witness be called to be cross-examined. Further, this change from the former practice does not mean that the other party can put the evidence in and seek to invite the Court to disbelieve as untrue a substantial part of that evidence. Where a party seeks to rely on a witness statement at trial as hearsay evidence and the other party applies for permission to cross-examine that person, then if the person does not attend it is open to the Court to exclude that evidence. Whilst in judicial review proceedings evidence is usually in writing, the Court retains a power to direct that witnesses should attend for cross-examination on their witness statements and affidavits.”

17.27

“It is not satisfactory to put a witness statement before the Trial Judge for his pre-reading, where it is not intended to call that person as a witness (and it is not intended to rely on it as hearsay). Although it is desirable for the party to inform the Judge that it may not call all the witnesses before he is asked to read their statements, the mere fact that the Judge has read the statement of a witness who ultimately is not called, does not make the trial unfair — Judges often have to put matters of which they were once aware out of their minds in resolving issues of fact. The Trial Judge has no power requiring the party who served the statement to call the maker to give evidence as a witness. However the Judge may draw

an adverse inference against a party in failing to call the witness to deal with certain evidence.”

5. In this matter, it was not until the respondents’ case had almost closed that the claimant and the Tribunal were informed that the respondents did not intend to call Mr Rodger McCallium to give oral evidence, albeit they had provided witness statements to the claimant, as required by the Orders of the Tribunal. The said witness statements, which had been prepared and exchanged, in accordance with the terms of the Orders of the Tribunal, were contained in the trial bundles; but had not been read by the Tribunal, ‘as set out in the said case management orders, as they had not been called to give oral evidence. As seen above, it is suggested, in Paragraph 17.26 of Disclosure, that whenever a party decides not to call such a person it is good practice that prompt notice should be given to all other parties. It has to be recognised that, in cases conducted without the use of witness statements, it can and does often occur that a person is called to the Courts/Tribunal to give evidence; but, for various perfectly legitimate and proper reasons, it is decided by the party or the representative not to call such persons to give oral evidence. The difference
in a case where witness statements have been ordered is that, in accordance with the modern practice of ‘cards on the table’; the, other party is aware, in advance, of the content of that person’s witness statement — and, if called, will be the basis of his evidence-in-chief, subject to the Tribunal giving leave, in limited circumstances, to allow the witness statement to be amplified. However, the Order relating to the use of witness statements does not, in the Tribunal’s view, require the witness, whose statement has been exchanged, to be called by any party to give oral evidence. Normally this will be what will occur; the party preparing and exchanging the witness statement will call the person who gave the statement to give oral evidence on his behalf.

As was made clear in the case of Jaffray v Society of Lloyds [2002] EWCA 1101, there is no power for a Court (and which must, in the ‘Tribunal’s view, include a Tribunal also) to require a party, who served a statement, to call the maker to give evidence as a witness. I understand that the Tribunals, like the Courts, conduct their proceedings on the basis of the adversarial system.

It would appear that there is a practice which has been adopted by some Practitioners in Great Britain, when exchanging witness statements, to state in a covering letter that the fact of such exchange is in compliance with the terms of the relevant Orders of the Tribunal, but is not to be taken to mean that any such person whose witness statements have been exchanged will be called by it to give oral evidence. This is clearly a useful and prudent practice however, it is not a requirement and the respondents’ representatives at no time, during the course of the hearing, and prior to giving notice as set out above, indicated that Mr McCallium would be called to give oral evidence.

3.5 As outlined on the matters set out in the extract referred to above from ‘Disclosure’ —Paragraphs 17.26/17.27 and, in particular, the decisions referred to therein in the case of McPhilemy v Times Newspapers Limited & Others (2000J I WLR 1732 and Douglas v Hello Limited (2003) EWCA Civ 332.

3.6 In the course of the decision, in the McPhilemy case, Brooke LJ sets out, in some detail at Page 1735/6 the relevant history relating to the introduction of witness statements into litigation in Great Britain:

“For many years full trials in this country were conducted by the parties
calling oral evidence, sight unseen. In criminal trials, of course, witnesses for the Prosecution had their statement served on the other side. It was only extremely recently, in civil proceedings, that the written statements of parties were served before trial. Accordingly, the principles of the law of evidence to which we have had our attention drawn, both in Cross and Tapper on Evidence 9^th Edition (1999), Pages 285- 286 and in Phipson on Evidence, 15th Edition (2000), Pages 244 and 278, are largely drawn from a trial tradition which precedes the trial tradition with which we are now familiar.

The dilemma in which the Courts now find themselves is how to adapt the principles, which have grown up over the years, of what constitutes a fair trial in an adversarial system of justice to these new procedures. So far as formal rules are concerned, when the rules permitting exchange of witness statements were first introduced in 1986, there was an express rule in the Rules of the Supreme Court, Order 28 Rule 2A(6) to the following effect:-

“Subject to Paragraph (9) that where a party serving a statement under this rule does not call the witness to whose evidence it relates, no other party may put the statement in evidence at the trial”.

The rule-makers of the Civil Procedure Rules decided to get rid of this prohibition. The position is now governed by the Civil Procedure Rules, Rule 32.5. After four provisions dealing with witness statements, Rule 32.5(5) reads:

“If a party who has served a witness statement does not

call the witness to give evidence at trial; or
put in the witness statement as hearsay evidence,

any other party may put the witness statement in as hearsay
evidence.”

In other words, it abrogates the old Rule and makes permissive what the old Rule prevented. It is then a matter for the discretion of the Judge whether to permit it. In my judgment, however there is nothing in this new Rule to change the basic rules of the law of evidence which existed before the new rule was introduced by the rule-makers, and which are still in force today.”

3.7 As indicated above, the Civil Procedure Rules do not apply in this jurisdiction and in particular Rule 32 referred to in the said McPhilemy judgment.

When witness statements were introduced in Great Britain, the cases of McPhilemy, and also Douglas, make clear there was the express Rule, at that time, in the Rules of the Supreme Court, namely Order 38 Rule 2A(6), as set out above.

Therefore, at that time, pursuant to that Rule, the claimant in this case (if bringing his proceedings in Great Britain) would not have been in a position to make an - application to have said witness statements admitted in evidence, on his own behalf, as hearsay evidence. As set out previously, Rule 32 of the Civil Procedure Rules, abolished that prohibition and now allows such an application to be made in Great Britain.

In this jurisdiction, as stated previously, the Rules of the Supreme Court (Northern Ireland) 1980 have not made any provision in relation to witness statement, as found in Great Britain and in particular as set out under Rule 32 of the Civil Procedure Rules. Thus, in Northern Ireland, there is no equivalent to the original prohibition issued in Great Britain, which was contained in Order 38, Rule 2A(6) of the Rules of the Supreme Court, nor a similar provision to Rule 32.5 of the Civil Procedure Rules, which abolished the earlier prohibition set out in Order 38, Rule 2A(6).

It is for the Tribunal to decide, in light of the judgment of Brooke LJ in the McPhilemy case, as referred to above, that it was a matter for its discretion, whether to admit on the claimant’s behalf, the said statements as hearsay evidence — in the absence of any prohibitions, such as seen in Great Britain in Order 38 Rule 2A(6), in the Rules of the Supreme Court in Northern Ireland. Given the Rules of the Supreme Court in Northern Ireland do not contain any provision relating to witness statements, it was the Tribunal’s view the basic rules of the law of evidence also applied in this jurisdiction and allowed the Tribunal, in Northern Ireland, also to exercise its discretion whether to admit any such statement as hearsay evidence. In any event, regardless of the foregoing, the Tribunal has wide powers relating to the admission of evidence and is not bound by the strict rules of evidence.

As indicated previously, in this context, it is also necessary to refer to the Rules of Procedure and in particular Rules 13(2)(3) and 59(1), as set out in Paragraph 3.4 of this decision and the ability of a Tribunal to admit hearsay evidence. Indeed, the Tribunals regularly have occasion, pursuant to the said Rules and its discretionary powers, to admit such hearsay evidence; although the weight to which it attaches to such evidence can often be very little, depending on the particular circumstances.
I understand that if the Tribunal considered it appropriate, it could admit such evidence, on the claimant’s behalf as hearsay evidence; I also understand if the Tribunal admit such evidence, the weight to which the Tribunal would attach to such evidence would be a mailer for the Tribunal and such weight might not be great, in circumstances, in particular, where such evidence had not been the subject of examination/cross-examination in the normal way

4.1 6. My claims of unlawful discrimination on the ground of religious belief and/or discrimination by way of victimisation were brought pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998 (the 1998 Order); and the claims of the claimant of unlawful discrimination on the grounds of sex were brought pursuant to the Sex Discrimination (Northern Ireland) Order 1976. (the 1976 Order).

4.2 Under Article 3 of the 1998Order, it is provided:

(1) In this Order ‘discrimination’ means —

(a) discrimination on the ground of religious belief…; or

(b) discrimination by way of victimisation;

and ‘discrimination’ shall be construed accordingly.

(2) A person discriminates against another person on the ground of religious belief ... in any circumstances relevant for the purposes of this Order if-

(a) on … [that ground … he treats that other less favourably than he treats or would treat other persons; or

….

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

A person (‘A’) discriminates by way of victimisation against other person (‘B’) in any circumstances relevant for the purpose of this Order if—
The reasons are that:-

(i) brought proceedings against A or any other person under this Order; or

(ii) given evidence or information in connection with such proceedings brought by any person. or any investigation under this Order; or

alleged that A or any other person has
(whether or not the allegation so stated
contravened this Order; or
otherwise done anything under or by reference
to this Order in relation to A or any other
person; or
A knows that B intends to do any of those things or suspects that B has done, or intends
to do, any of those things.

(6) Paragraph (4) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.

(7) For the purpose of this Order a person commits unlawful discrimination against another if —

(a) he does an act in relation to that other which is unlawful by virtue of any provision of Part III ..; or

(b) …”

4.3 Under Article 19 of the 1998 Order (which is contained in Part Ill), it is unlawful for an employer to discriminate against a person, in relation to employment in Northern Ireland:-

…

(b) Where that person is employed by him —

(i) in the terms of employment which he affords him; or

(ii) the way he affords him access to benefits or by refusing or deliberately omitting to afford him access
to them; or

(iii) by dismissing him or by subjecting him to any other
detriment.

In the case of Shamoon v Chief Constable. of the RUC.[2OO].IRLR .285,the House of Lords held that in order for a disadvantage to quantify as a detriment the Tribunal must find by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work. An unjustified sense of grievance cannot amount to ‘detriment’.

4.4 However, although the originating application in this matter was presented prior to 2003, the provisions of the. Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003, which came into operation on 10 December 2003, the Tribunal was satisfied these Regulations applied to these proceedings by reason of the transitional provisions contained in Regulation 2 of the said Regulations.

Regulation 24, in particular, amended Article 38 of the 1998 Order, in relation to the burden of proof applicable to these proceedings - by the insertion of Article 38A, which states as follows:-

“Article 38A —W

Where on the hearing of a complaint under Article 38, the complainant
proves the facts from which the Tribunal could [Tribunal’s emphasis] apart from this Article, conclude in the absence of an adequate explanation that the respondent –

(a) Committed an act of unlawful discrimination against the complainant, or

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

the Tribunal shall [Tribunal’s emphasis] 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.”

There was no dispute that the provisions of Article 38A (the burden of proof provisions) applied to the claimant’s claim of unlawful discrimination on the grounds of religious belief and/or victimisation under the 1998 Order.

The English Court of Appeal, in the case of Igen v Wong [2005] IRLR 258 considered provisions equivalent to Article 38A of the 1998 Order, in a sex discrimination case, and approved, with minor amendment, guidelines set out in the earlier decision of Barton v lnvestec Henderson Crosthwaite Securities Limited [2003] IRLR 332.

In a number of recent decisions, the Northern Ireland Court of Appeal has approved the decision of Igen v Wang and the said two-stage process.

In the case of Bridget McDonagh & Others v Samuel Tom TIA The Royal Hotel, Dungannan [2003] NICA 3, the Court of Appeal, in referring to the said two-stage process stated:

“… The first stage required the complainant to proves facts from which
the Tribunal could conclude in the absence of an adequate explanation that the respondent had committed. the unlawful act of discrimination against the complainant. The second stage (which only came into effect if the claimant had proved those facts) required the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld…”

The Court of Appeal, in the above decision, also confirmed that the amended Barton guidance, as to the correct approach to be taken to the incidences of the burden of proof, applied to a case of unlawful discrimination pursuant to the 1996 Order, as well as to all other forms of unlawful discrimination, including that of sex discrimination under the 1976 Order.

The Barton guidance, as amended in Igen, provides, as follows:-

“(1) Pursuant to s.63A of the SDA, 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 respondent has
committed an act of discrimination against the claimant which is

unlawful by virtue of Part II or which by s.41 or s.42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as ‘such facts’.

If the claimant does not prove such facts he or she will fail.
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’.
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.
It is important to note the word ‘could’ in s.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 what inferences of secondary fad could be drawn from them.
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.
These inferences can include, in appropriate cases, an inference that it is just and equitable to draw in accordance with s.74(21) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within s.74(2) of the SDA.
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 s.56A(1O) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant Code of Practice.
Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.

It is then for the respondent to prove that he did not commit, or as the case may be is not to be treated as having committed that act.
To discharge that burden it is necessary for the respondent 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.
That requires a Tribunal to assess not merely whether the respondent 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.
Since the facts necessary to prove an explanation would normally be in the possession of the respondent, the 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 decision in Igen v Wong has been the subject of a number of further decisions including Madarassy v Nomura International PLC [2007] IRLR 246, a decision of the Court of Appeal in England and Wales, and Laing v Manchester City Council [2006] IRLR 748, both of which decisions were expressly approved by the Northern Ireland Court of Appeal in the case of Arthur v Northern Ireland Housing Executive and SHL (UK) Limited (2007) NICA 25.

In Madarassy, the Court of Appeal held, inter alia, that

‘The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (g sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which Tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination. ‘Could conclude’ in Section 63A(2) must mean that ‘a reasonable Tribunal could properly conclude’ from all the evidence before it. This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory ‘absence of an adequate explanation’ at this stage, the Tribunal needs to consider all the evidence

relevant to the discrimination complaint, such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the claimant were of like with like as required by Section 5(3), and available evidence of the reasons for the differential treatment. The correct legal position was made plain by the guidance in Igen v Wang ...

Although Section 63A(2) involves a two-stage analysis of the evidence, it does not expressly or impliedly prevent the Tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the claimant’s evidence of discrimination. The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the claimant; or that the comparators chosen by the claimant or the situations with which comparisons are made are not truly like the claimant or the situation of the claimant; or that,, even if there has been. less favourable treatment of the claimant, it was not on the ground of her sex or pregnancy. Such evidence from the respondent could, if accepted by the Tribunal, be relevant as showing that, contrary to the claimant’s allegations of discrimination, there is nothing in the evidence from which the Tribunal could properly infer a prima facie case of discrimination on the prescribed ground. The approach of Elias J in Laing v Manchester City Council would be approved…

In Laing v Manchester City Council [20061 IRLR 748, which was expressly approved by Campbell U in the Arthur case, Elias J said in relation to the two-stage process:-

“71 There seems to be much confusion created by the decision in Igen [2005] ICR 931. What must be borne in mind by a Tribunal faced with a race claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination. The shifting of the burden of proof simply recognises that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the Tribunal on the balance of probabilities that certain treatment had been by reason of race.

…..

73 No doubt in most cases if would be sensible for a Tribunal to formally analyse a case by reference to the two-stages. But it is not obligatory on them formally to go through each step in each case.

…..

75 The focus of the Tribunal’s analysis must at all times be the question whether or not they can properly and fairly infer race discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a Tribunal to say, in effect, ‘there is a nice question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race’.”

(See further Brown v London Borough of Croyden (2007) IRLR 259.)

In the case of Network Rail Infrastructure Limited v Griffiths-Henry (2006) IRLR 865, the Employment Appeal Tribunal held that:

‘A Tribunal at the second stage is simply concerned with the reason why the employer acted as he did. The burden imposed on the employer will depend on the strength of the prima fade case….

It would be inappropriate to find discrimination simply because an explanation given by the employer for the difference in treatment is not one which the Tribunal considers objectively to be justified or reasonable. Unfairness is not itself sufficient to establish discrimination.”

4.5 Under the 1976 Order, it is provided:

“3(1) A person discriminates against a woman in any circumstances
relevant within the purpose of any provision of this Order if-

on the ground of her sex he treats her less favourably than he treats or would treat a man, or

…

4(1) Under Article 3 and the provisions of Part III … relating to sex discrimination against women, are to be read as applying equally to the treatment of the men, and for that purpose shall have effect with such modifications as are requisite.

Part III

8(i) …

(2) It is unlawful for a person, in the case of a woman employed by him
at an establishment in Northern Ireland, to discriminate against her-

(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

(b) by dismissing her, or subjecting her to any other detriment.

Under the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001, which applied to this case by virtue of the transitional provisions contained in Regulation 1 of the said Regulations; Article 63 of the 1976 Order was amended by the insertion of Article 63A. Article 63A is in similar terms to Article 38A of the 1998 Order, as referred to above, and which, is as seen in the authorities referred to above is to be applied in the same way as Article 38A in the 1998 Order including, in particular, the approach as set out in Igen v Wong [2005] 3AER812 and the other interpretative guidance set out the case law referred to above.

In the case of unlawful discrimination on the grounds of religious belief under the
1998 Order, there requires to be a comparison, as set out above, in Article 3 of the 1998 Order. In relation to this claim, but also his claim of discrimination by way of victimisation and his claim of sex discrimination, the claimant relied on actual comparators; and did not seek to rely on hypothetical comparators, albeit, as seen in the case of Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, such a comparator is permissible in relation to any such claim.
Lord Nicholls in his judgment in the Shamoon referred to the normal two-step approach of Tribunals where Tribunals firstly considered whether the claimant received less favourable treatment then the appropriate comparator then, secondly, considered whether the less favourable treatment was on the relevant proscribed ground.

However, he also stated:-

“8 No doubt there are cases where it is convenient and helpful to
adopt this two-step approach to what is essentially a single question:—

“did the claimant, on the proscribed ground, received
less favourable treatment than others?.

But, especially, where the identity of the relevant comparator is a matter for dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined.

…

This analysis seems to me to point to the conclusion that Employment Tribunals might sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed, ground, was less favourable. than... .was or would have been afforded to others.”

The above authorities are obviously also relevant to consideration of the claimant’s claim under the 1976 Order, where similar provisions to those set out in the 1998 Order are applicable; and, as seen above, in many cases the leading authorities are based on claims of sex discrimination.
As set out above, the claimant has also made a claim under the 1998 Order of victimisation, pursuant to the provisions. of Article 3(2) and (4) of the 1998 Order.

As the House of Lords made clear in the decision of Chief Constable of West Yorkshire v Khan [2001] IRLR 830, victimisation occurs when, in any circumstances relevant for the purposes of any provision of the Act, a person is treated less favourably than others because he has done one of the protected acts. The burden of proof provisions, to which reference has been made above, are also therefore applicable to such a claim. Further, in order to make the necessary comparison, it is necessary to compare the treatment afforded to the complainant who has done a protected act and the treatment which was or would be afforded to other employees who have not done the protected act. In the absence of an actual comparator, the Tribunal must also consider the position of a hypothetical comparator. In this matter I have relied on actual comparators.

Lord Nicholls said in the Khan case, the situation should be looked at subjectively and the questions asked — “why did the alleged discriminator act as he did — what consciously or unconsciously was his reason”; or, as Lord Scott said, ‘the real reason, the core reason, the motive for the treatment complained
of. In other words, whether a claimant has been victimised ‘by reason’ he has done a protected act is not to be determined by application of a ‘but for’ test.

Whether a particular act can be said to amount to victimisation must be judged primarily from the point of view of the alleged victim, whether or not they suffered any ‘detriment’ rather from the point of view of the alleged discriminator (St Helen’s Metropolitan Borough Council v Derbyshire (2007) IRLR 540 HL). Lord Nicholls in Nagarajan v London Regional Transport (1999) IRLR 572 HL made clear that conscious motivation on the part of the discriminator is not a necessary ingredient of unlawful victimisation. Lord Nicholls also confirmed in the Nagarajan case that discrimination could be made out if the prohibited ground had a ‘significant influence’ on the outcome. In Igen v Wong that wording was interpreted as meaning an ‘influence more than trivial’. In the decision of Villalba v Merrill Lynch & Co [2006] IRLR 437, Elias J held that, if in relation to any particular decision a discriminatory influence was not a material influence or factor, then it was trivial and therefore according to Igen V Wong, insufficient to breach the principle of equal treatment.

In ‘Discrimination and Employment by Tucker and George, Paragraph D8.002, it is made clear that it is well established law that “if they had actually done or actually intended to do the protected act, that the alleged discriminator had actual knowledge of that, alternatively that he suspected them of having done or intending to do the protected act. “In Scott v London Borough of Hillingdon [2001] EWCA Civ 2005, (see Paragraphs 9, 19 and particularly 21) — Keane LJ held that knowledge should be established as a matter of primary fact.

I find these arguments unpersuasive. It is quite clear that, in a case of this kind, knowledge on the part of the alleged discriminator of the protected act is a precondition to a finding of victimisation. That is inherent in the statutory wording and it was spelt out by Lord Steyn in Nagarajan v London Regional Transport (19991 IRLR 572, in a passage subsequently endorsed in Chief Constable of West Yorkshire v Khan (2001) UKHL 48 at Paragraph 56. Lord Steyn said of Section 2(1) at Page 579 that Section 2:-

“Contemplates that the discriminator had knowledge of the protected act and that such knowledge caused or influenced the discriminator to treat the victimised person less favourably than he would treat other persons. But .. it does not require the Tribunal to distinguish between conscious and subconscious motivation.”

See also the decision of Mr Commissioner Howell QC, in the case of Chief Constable of Cumbria v McGlennon (2002) 1CR 1156, EAT, particularly at Paragraphs 56 — 58, to which reference shall be made later in this decision.

4.10 Further, there was no issue raised during the course of this hearing by the representative of the respondents that, if the Tribunal found the alleged acts of

unlawful discrimination and/or discrimination by victimisation were the acts of the second-named respondent, the first-named respondent would be liable for same and further the second-named respondent would also be found to be personally liable for any such acts.

7. which the alleged comment is based. In the case of Lynch v Ministry of Defence [1983] NI 216, Hutton J, as he then was, relied on the dicta in the case of O’Donnell v Reichard (19751 VR 916 at Page 929:-

“…Where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person’s evidence would be favourable to him, then although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as witness, nevertheless it is open to the jury to infer that that person’s evidence would not have helped that party’s case; if the jury draw that inference, then they may properly take it into account against the party in question for the purposes namely (a) in deciding whether to accept any particular evidence, which has in fact been, given either or against that person, and which relates to a matter with respect to which the person not called as a witness could have spoken; and (b) in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given, again in relation to matters with respect to which the person not called as a witness could spoken.”

No reason was given for the failure to call any such witness other than Mr Strain.

The witnesses that the respondent could have called that in my view their evidence would be reasonably expected to be favourable to the respondent

1. Mr Mc Cleary: Presumably a trained investigator appointed to
investigate the complaint by G department of R/Con Dunseath on the 13/10/00. His views as to A/Sgt Sloan’s deployment to Kosovo whether his deployment should have been delayed until it had been at least fully established as to what R/Con Dunseath’s complaint was. The question of suitability could have been addressed by Mr Mc Cleary in evidence. Such matter as to why after R/Con Dunseath’s first statement was made on the 13/10/00. No other statement was recorded from R/Con Dunseath until 10/01/02. The issue of, “seriousness” could have been explored. This information contained in my book 2 Tab D page 9.

2. Mr Baxter: A/Sergeant Sloane’s Superintendent. His views on, “whistle blowing”, “seriousness” and “suitability” could have been addressed at the tribunal hearing.

3. Inspector Rea: my first line manager. Many issues that were explored during the tribunal hearing were relevant to Mr Rea’s supervision of me whilst I was a Sergeant in Magherafelt performing my duties. If my performance raised so many concerns regarding my involvement in the arrests and treatment of prisoners as some of the respondent’s witnesses testified. Then would it not stand to reason that the respondent should have called Mr Rea. The supervisor who was on duty when I was on duty. If the respondents evidence is to be believed Mr Rea most certainly would have been favourable to their case. At no time did I see the progress reports that Insp Rea had written about me during probation as a Sergeant.

4. Mr Morrison: Mr Shevlin’s line manager. Presumably his evidence would have been favourable to the respondent, why was he not called? What was he told?

5. Mr O’Donnell: Mr Shevlin formed an initial view that was referred to and contained in a report in my Book 2 Tab E page 19, Second paragraph. Mr O’Donnell in my view would have been reasonably expected to be favourable to the respondent’s case. This view was passed at an informal briefing. How many informal briefings were there? Who was involved?

6. Mr Graham: the superintendent who initially took the lead into R/Con Bradley’s complaint against me before Mr Cotton’s appointment as investigating officer, ft would be my view that his evidence would have been favourable to the respondent’s case, why was he not called?

7. Ms Curran: the, “advisor” to Mr Shevlin from equal opportunities Ms Curran was present at the case management meeting the was held on the 13th March 2001. Ms Curran would have been one of the people that could have supplied evidence to the tribunal coo- berating Mr Shevlin’s evidence regarding the,” agreed decision to transfer me, why was she not called?

8. Mr Kane: deputy head of G department at this time. He was also present at this case management meeting which was held on the 13^th March 2001. Mr Kane was involved throughout the entire investigation pertaining to the complaint that R/Con Bradley made against me. and various aspects of correspondents that I had with him.

9. Mr Hughes: was involved in liaising between Mr Shevlin in B department. He was also present at the case management meeting. He met and spoke with me several times regarding my deployment to Kosovo and the complaint regarding R/Con Bradley. Would have been in my view one of the most informed persons involved in the questions of suitability to deploy officers to Kosovo. He would have had knowledge regarding the. seriousness of the complaints pertaining to officers being deployed to Kosovo. He was one of the officers who decided to deploy me to Kosovo before the complaint that R/Con Bradley made and the complaints that were being investigated by the ombudsmen were fully investigated in my view a pivotal witness to the respondent.

10. Gary Strain: witness statement was supplied by the respondent. The person who would have had in my view intimate knowledge and access to the vetting procedure for officers regarding their suitability before after and whilst deployed in Kosovo. Was involved in communications with B and G departments, Mr Shevlin and Mr Lindsay in Magherafelt. The first time that the respondent’s representatives indicated that Mr Strain would not be appearing was on the first day of the tribunal hearing. The respondent knew that Mr Strain was going to Afghanistan during the hearing of case 442/99 FET. A t the end of Mr Strains evidence during this case 442/99 FET the question of recalling him was raised by the tribunal. It was then stated by Mr Dunlop that Mr Strain was going to Afghanistan. The tribunal case ended on the 19/02/07. No evidence was provided by the tribunal as to what attempts had been made by the respondent to secure the attendance of Mr Strain given in my view how important Mr Strain’s evidence would have been to the respondents case.

11. Ombudsmen: no evidence was presented to the tribunal as to the respondent’s efforts to secure the attendance of Mr Brian Doherty or Mr Mark McConnell the investigating officers from the ombudsman’s office regarding R/Con Bradley’s complaints of my criminality.

12. Mr Mc Callium: Provided a witness statement which is in the
agreed bundle. It was Mr Mc Callium who wrote the passage
below,”

“…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.”

Which is contained in the decision of 56/98 FET. Mr Mc Callium was my line manager for approx 5 years in Ballymena .Mr Mc Callium was my chief Inspector and subsequently my Superintendent in Ballymena. At no time was there any issue regarding any complaint, sickness or interpersonal relationships concerns raised by Mr Mc Gallium. Mr Mc Gallium personally handed me a number of letters of appreciation form members of the public and I was commended by Mr Mc Callium for my performance as a police officer I spoke with Mr Mc Gallium on many occasions concerning many operational matters.
13 Mr Craig: The Chief Superintendent in B department at the time before my deployment was deferred and the senior officer who was involved in

deciding that I was suitable to be deployed whilst the investigation both the disciplinary and criminal were ongoing.
The Respondent representatives did not call any witnesses to the Tribunal hearing who were involved in whatever process was conducted; if there was a process conducted at all, pertaining to the complaint of R/Con Dunseath before A/Sgt Sloan’s deployment to Kosovo. The officers who would have considered and addressed the issues of suitability and seriousness issues.

Relevant and significant Discovery matters pertaining to the Tribunal Hearing that were either never disclosed or disclosed at the hearing.

Journal entry Mr Shevlin; Significant and very relevant evidence to this
Tribunal Hearing. Deliberately hidden i.e. Most of the areas that Mr Shevlin said that he highlighted. This is an obvious lie. It is clear to see that the areas in Mr Shevlins Journal that exposed his involvement with Mr Lamont and Mr Rea and knowledge of the complaint of R/Con Bradley are covered up using a marker; not a highlighter. To suggest that he used a highlighter is simply the actions of a desperate man when he has been exposed as a liar. Book 1 Tab B pages 76L to 76T.
Journal entry Mr Lamont: meeting with Mr Brian Doherty on the 7th March
2001, Document R6. It is clear and obvious to any reasonable person reading this document that this meeting was about me. To suggest that my name just popped up is an obvious and blatant lie, considering the timing of the meeting and the previous recent complaint. Why would an A/ACC get involved in such a meeting? He would have numerous personnel to delegate this to. Mr Lamont showed great interest in the complaint that R/Con Bradley made against me. He was in my view seizing the opportunity to do me harm as I had made complaints concerning him to the Fair Employment Tribunal.
Vetting list for alleged Discipline/Criminal complaints for officers being deployed to Kosovo in 2001.
Vetting list: T.P Atkinson: book 1 tab B page 29. I Was never supplied with the attached report. The persons involved in his deferment from Kosovo

were never identified. The system/ means used to defer his deployment were never disclosed.

Vetting list for 2000: D A Grant: Book 1 tab B page 28: I was never supplied with the attached report.
The notes/records of the decisions regarding suitability and seriousness were never disclosed.
The report that was written by Mr D Hanna that is referred to in Mr Lindsay’s report dated 9th April 2001. Book 1 Tab B page 37 paragraph marked d refers

Victimisation

1 Mr Lindsay: It is clear from the report that Mr Lindsay wrote regarding my suitability to be deployed to Kosovo that it the material that he was referring to was from my personal file

From the material that he researched in his view I was unsuitable to be deployed to Kosovo. Mr Lindsay did not know what information that he relied upon to write this report. He had no notes as to what he was referring to by way of evidence to base his report on. When he was giving his evidence it was my view that he was aggressive and threatening. He stated that,”We were going to put you off the job”. When asked who,” We” he did not know who ,“We” was. He stated that he was sick of my Antics and that officers had told him what my antics were. He was unable to say what my Antics were and he was unable to identify any officer whom he had spoken too. It is clear that Mr Lindsay had no evidence to put before the Tribunal to support his view.

It was also clear from Mr Lindsay’s evidence is the view that he had adopted towards me after a,” Matter of weeks” and his intention were clearly spelt out in his evidence that he was going to sort me out and that ,“We had, had enough of you complaining about us. Somebody had to sort you out and I was going to do it”. Mr Lindsay made reference several times to,” Management time” and that I was taking up management time by putting in complaints.

in Mr Lindsay’s report, Book 1 Tab B page 37 at (a), he makes reference to a report. In the report that he refers to (Book 2 Tab C page 9) I have highlighted that I have made a complaint regarding a female officer to the Industrial Tribunal. The Case ref of this complaint is 02805/96 SD. Mr Lindsay motive for including this in this report is to support his argument that I take up management time. This is one of the issues that he is using to recommend that I am unsuitable to be deployed to Kosovo. This report is relied upon by Mr Lamont to support his decision to defer my deployment. This is a clear breach of Art 3(4) of the FTO. I have been treated less favourably by Mr Lindsay than other officers who have been found suitable to be deployed to go to Kosovo because I have brought proceedings against the Chief Constable.

It was very clear from Mr Lindsay’s evidence that he had a total disregard for Equal Opportunities Legislation and he was set on a path to drive me out of the police service.

2. Mr Shevlin. The discovery of what Mr Shevlin tried to hide in his Journal to me highlights how dishonest he is. This was amplified by the feeble excuse that he was far to busy when he was writing his statement for the Tribunal and that he accidentally left out that he had spoken to Mr Lamont. This Journal entry is one of the lynchpins in this case as it shows the connection between Mr Lamont and Mr Shevlin. Mr Lamont has been central to most of my previous Tribunal claims. The obvious question is why would Mr Shevlin want to hide this evidence?

R/Con Bradley’s complaints would have been common knowledge in Magherafelt station. Mr Cottons report, Respondent Book 2 page 575 at point 3, refers to when R/Con Bradley decided to raise some of these matters with Mr Shevin. Mr Shevlin had undoubtedly met R/Con Bradley before the 5/3/01. As outlined in Con Swann’s statement (Book 2 Tab F page 24) when she spoke to Inspector Hayes she was informed that Mr Shevlin was dealing with R/Con Bradley’s complaint. This was on early duties. Early duties start at 07:O0hrs and terminate at 15:O0hrs. Mr Shevlin states in his statement that he first met R/Con Bradley at 17:20hrs.

Mr Shevlin stressed how closely he worked as a team with Mr Lindsay and that they communicated on regular bases. It is reasonable to infer that Mr Shevlin

would have been aware and would have discussed the contents of the report that Mr Lindsay wrote regarding my suitability to be deployed to Kosovo. It is obvious from the unofficial handover that Mr Shevlin had with Mr O’Donnell that he had formed and accepted a certain view in his mind that was not based on evidence; this view was to my detriment. Mr Shevlin uses this,” view” to support the allegations that R/Con Bradley made regarding alleged assault on prisoners. (Book 2 Tab E page 19 second paragraph)

I have no doubt in my mind that Mr Shevlin was working with Mr Lamont and Lindsay to portray me in such away that my deployment to Kosovo would be deferred.

3. Mr Cotton. In his evidence he stated that all complaints should be treated as serious, and that there was no policy or criteria existed at that time which set out a hard and fast guidelines for officers who were being deployed to Kosovo regarding complaints.

4. Mr Wilson. In the Decision reference case 140/00 FET at page 9 of this decision, It is recorded that “In the absence of the required knowledge by Mr Wilson, of the protected act” During this case Mr Wilson stated that he did not know that I had made complaints to the Fair Employment Tribunal. Yet he gave evidence at this hearing that he knew of the complaints to the Tribunal because he had discussions with Mr Lamont. Reference was made to the complaint that I made to the Tribunal regarding my non-deployment to Kosovo in 1999 and case 140/00fet which was to do with promotion. Mr Wilson’s evidence simply can not be believed.

Mr Wilson wrote a report which was to support Mr Lamont’s position to have my deployment deferred. He had knowledge of previous complaints to the industrial Tribunal through discussions with Mr Lamont. He doesn’t know when or what the content of tough’s conversations were. He has no notes. He had this knowledge at the relevant time. He subsequently wrote a report misquoting the Home Office guidelines on unsatisfactory performance. This report was written to my detriment. This is what I would say is a clear breach of Article 3(4) FTO.

5. Mr Lamont.. Change his evidence at the hearing, i.e. 1, conversation with Mr Shevlin, and 2. As to what he regarded as serious pertaining to R/Con Bradley’s allegations.

Was evasive and would not answer questions directly.

One of the major questions in Mr Lamont’s involvement is, why would an Assistant Chief Constable get involved with a Complaint right from the start in the way in which he did? This evidence was subsequently hidden and not disclosed, i.e. conversation with Mr Brian Doherty and Mr Shevlin’s Journal.

As soon as the report that was sent by Mr Shevlin to B department it was brought to Mr Lamont’s attention. He realises that it was about me and very quickly becomes involved with the fundamentals of even giving instruction on how to set up a case conference.

Mr Lamont is clearly not telling the truth regarding his involvement in this matter.
The reason he left out his conversation with Mr Shevlin is quite simple. Without Mr Shevlin’s journal entry it would almost be impossible to show how intimately involved Mr Lamont was involved in this process.

Mr Lamont stated that every complaint should be treated seriously.

He had no knowledge or involvement of the complaint against A/Sgt Sloan or any involvement in the case of T P Atkinson who was also deferred from being deployed.

Regarding the other comparator that I named I would say that from looking at the Vetting lists that their suitability is brought into question.

Religious Discrimination
At no time during the Tribunal hearing did the Tribunal Panel hear evidence from any Officer who was involved in the assessment of the initial complaint made

against A/Sgt Sloan as to how it affected his suitability for deployment or the assessment of the seriousness of the complaint.

The question then arises, was this complaint even scrutinised regarding suitability and/or seriousness?

The Equal Opportunities Policy statement of the police service states that no officer receives less treatment on the grounds of religion.

I would be of the view and would suggest that it would only be reasonable that as soon as a complaint is made against any officer who was deemed suitable for deployment to Kosovo that the officer’s suitability is put into question.

This complaint would then have to be scrutinised and records made as to the
thought process and evidence regarding seriousness and suitability.

This was clearly not done in A/Sgt Sloan’s case.

A/Sgt Sloan was performing the same role as me and a R/Constable made a complaint against him. As referred to in evidence as,”Whistle blowing”

The complaint against A/Sgt Sloan was not even fully recorded or known and he was still allowed to deploy to Kosovo without question.

A/Sgt Sloan is a Protestant.

I would say that on the balance of probabilities that due to the facts and evidence in this case that the Tribunal could conclude in the absence of an adequate explanation that the respondent has committed an act of religious discrimination against me.

In no way have the respondents provided an adequate explanation as to why A/Sgt Sloan’s deployment was not deferred. They produced no evidence at the hearing as to who assessed the complaint that was made against him. The only evidence as such as to why A/Sgt Sloan’s deployment was not deferred has been by way of speculation and hearsay.

I would certainly be of the view that the complaint against A/Sgt Sloan was of such a serious nature and that his deployment should have been deferred until a complete investigation had been carried out. The same and equal treatment accorded to me by ultimately the Chief Constable.

In no way have the respondents discharge this burden. They have not produced any cogent evidence. It is clear that the respondent committed an act of religious discrimination.

Kevin Curley

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