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Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Curley v Police Service of Northern Ireland [2008] NIFET 442_99FET (14 April 2008)
URL: http://www.bailii.org/nie/cases/NIFET/2008/442_99FET.html
Cite as: [2008] NIFET 442_99FET
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- At the outset of the hearing, it was agreed by the parties that the Tribunal should firstly consider and determine the liability of the respondents in relation to the claims of the claimant and, if necessary and appropriate, in light of the Tribunal's decision on liability, the matter would then be listed for a hearing to consider any remedy to which the claimant was entitled on foot of the decision.
- 1 The claimant presented an originating claim to the Tribunal on 4 November 1999, in which he made a claim that he had been unlawfully discriminated against by the respondents on the grounds of his religion and/or sex and/or by way of victimisation in relation to his placement on a reserve list for deployment to Kosovo in or about September/October 1999. The claimant acknowledged that he was not making any claim of discrimination on the ground of political opinion.
- 2 In relation to the claimant's claim of unlawful discrimination by way of victimisation, there was no dispute that the claimant's said claim was made, pursuant to the provisions of the Fair Employment and Treatment (Northern Ireland) Order 1998 and, in particular, the 'protected act' relied on by the claimant in relation to the said claim of victimisation was the claim which had brought by the claimant to the Fair Employment Tribunal of unlawful discrimination by the Chief Constable of the Police Service of Northern Ireland, Chief Superintendent Houston and Superintendent Lamont, on the grounds of his religious belief in relation to his failure to be promoted to the rank of Sergeant in the Police Service of Northern Ireland. This said claim, which was made on foot on an originating claim presented to the Tribunal on 6 February 1998 was given by the Tribunal the Case Reference No: 00056/98 FET. By a decision recorded in the Register, and issued to the parties on 14 May 2007, the Fair Employment Tribunal found in relation to the claims made under Case Reference No: 00056/98 FET that the claimant had not been unlawfully discriminated against by the respondents.
- 1 The Tribunal initially heard oral evidence from the claimant and then on behalf of the respondents, Gary Strain, Inspector Ronald McKeown, Chief Superintendent Wesley Lamont; and also the second-named respondent. At the conclusion of the respondents' said oral evidence, the respondents purported to close their case to the Tribunal.
- 2 Arising from the foregoing, and following applications made by the claimant, the witness statements of the following persons were admitted by the Tribunal on behalf of the claimant, as hearsay evidence, namely the witness statements of:-
- 3 At all times the Tribunal was aware that the claimant was unrepresented. Indeed, it was clear the claimant had been taken somewhat by surprise at the failure of the respondents to call, as witnesses, those witnesses who had provided to him, prior to the hearing of this matter, witness statements as ordered by the Tribunal. The claimant initially indicated that he wished to make an application to call as witnesses, on his own behalf, albeit by that time both he and the respondents had closed their respective cases, those persons who had provided witness statements but who not been called as witnesses by the respondents. The Tribunal was satisfied that, although the Tribunal had made the above 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. It was also clear, (see further Paragraph 3.9 of this decision) from the submissions made to the Tribunal by the parties, that 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).
- 4 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:-
- 5 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.
- 6 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. The Tribunal was therefore sympathetic to the undoubted surprise felt by the claimant, who was unrepresented, and the circumstances in which he found himself at the conclusion of the respondents' case. He had clearly expected, as he frankly acknowledged, that all the persons who had prepared witness statements on behalf of the respondents, and which had been exchanged with him in advance of the hearing in compliance with the Tribunal's orders, would have been called to give oral evidence by the respondents; and he would have had the opportunity to cross-examine such witnesses in the normal way. It was therefore in these circumstances that he made his initial application, as set out above, to seek to call these persons as witnesses.
- 7 Although both the claimant and the respondents had closed their respective cases, as aforesaid, when this issue arose, the Tribunal was of the opinion, having heard submissions from both parties, that under the Rules of Procedure set out above and having regard to the terms of the overriding objective, that it should, before hearing final submissions from the parties, consider the claimant's application. In doing so, the Tribunal took into account that the claimant was unrepresented; but also that there were no reported decisions in this jurisdiction, relating to the circumstances which had now arisen.
- 8 The Tribunal, in the circumstances, found it necessary, without objection from the respondents' representatives, to warn the claimant of the potential implications and consequences for him if he decided to proceed with his application, and it was granted, of calling these persons as witnesses on his behalf and the limited circumstances in which he would be allowed to cross-examine any such witness called by him; and also, on the basis of the said submissions, it was unlikely such limited circumstance would be likely to arise and be applicable in the circumstances. In relation to those limited circumstances, the claimant, in particular, was made fully aware that the term 'hostile witness' had a technical meaning and did not mean merely a witness with opposing views. At this time, in light of the foregoing, the Tribunal offered the claimant the opportunity to adjourn the case to allow him to seek advice from a solicitor or other relevant person or body, and/or assistance from the Labour Relations Agency; but he expressly declined the opportunity to do so. In relation to the consideration and determination of the claimant's said application, and as subsequently amended, the Tribunal ensured that, at all times, the claimant was provided with copies of all the authorities referred to by the respondents and/or the Tribunal in connection therewith, and he was also given the opportunity and time, as he required, to consider them before taking any further action or making any reply to any submissions made by the respondents' representative in relation to the application made by him.
- 9 In the absence of any relevant legal authority from this jurisdiction, the Tribunal 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 Tribunal drew the attention of the claimant and the respondents' representatives to the recently published edition of the leading textbook Disclosure - (3rd Edition) by Paul Matthews and Hodge Malek QC.
- 27
- 10 Mr Dunlop also indicated to the Tribunal, on behalf of the respondents, that having decided not to call to give oral evidence those persons whose witness statements had been prepared and exchanged with the claimant, as set out above, he was not seeking to put those witness statements in as hearsay evidence.
- 11 Having been given the opportunity, as indicated above, to consider his position, in light of the foregoing, the claimant then decided he did not wish to call those persons on his own behalf to give oral evidence; having recognised and acknowledged that if he did so, there would be the potential ability of the respondents to cross-examine any witness so-called by him and of his inability to cross-examine any such witness, save in the limited circumstances referred to previously, which were unlikely to be applicable in this case. However, the claimant then sought to amend his initial application to seek to admit, on his own behalf, the said witness statements of the persons who had made witness statements on behalf of the respondent, but who had not been called by the respondents, as hearsay evidence.
- 12 Before considering the amended application further, the Tribunal gave the parties, the opportunity, which they both accepted, to address it 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 [2000] 1 WLR 1732 and Douglas v Hello Limited [2003] EWCA Civ 332.
- 13 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:-
- 14 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.
- 15 The Tribunal came to the conclusion, 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.
- 16 It is clear that, in Great Britain, having regard to the said extract from 'Disclosure' and the caw law referred to therein, that such an application for permission to cross-examine these persons could be granted on foot of Rule 33 of the Civil Procedure Rules, which deals with hearsay evidence. In particular, Rule 33.4 states:-
- 17 Mr Dunlop, after seeking instructions, indicated that, if the Tribunal granted the claimant's application to admit, as hearsay evidence on his behalf, the witness statements of those persons referred to above, he would only seek permission to cross-examine Chief Inspector Wesley Wilson.
- 18 Subsequently, Chief Inspector Wesley Wilson attended the Tribunal and was cross-examined by the respondents' representative in relation to the contents of his said witness statement, admitted as hearsay on behalf of the claimant as aforesaid, and he was subsequently re-examined by the claimant, in accordance with the normal Rules of Procedure, on matters arising out of the said cross-examination.
- 1 The claims of the claimant 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).
- 2 Under Article 3 of the 1998 Order, it is provided:-
- 3 Under Article 19 of the 1998 Order (which is contained in Part III), it is unlawful for an employer to discriminate against a person, in relation to employment in Northern Ireland:-
- 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.
- 5 Under the 1976 Order, it is provided:-
- 6 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.
- .7 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.
- .8 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.
- .9 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.
- .10 Further, there was no issue raised during the course of this hearing by the parties and, in particular, 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.
- 1 In relation to the claims of the claimant, on the basis of the evidence presented to it, as set out above, the Tribunal made the following findings of fact, insofar as relevant and material to the determination by the Tribunal of those said claims.
- 2 The claimant is a Roman Catholic, who at the relevant and material time in or about 1999, was a Constable in the first-named respondent, serving in Ballymena.
- 3 Applications were subsequently received by those officers wishing to apply for the said deployment. The applications were contained in an application form, which included details of the person's length of service, brief details of police service to date, disciplinary record, together with information relied on by an applicant to support his application, having regard to the eligibility criteria together with a recommendation from a line manager; but also an UN medical form (the first two pages of which were to be completed by the applicant and the third and fourth page by the examining doctor).
- 4 As more police officers applied than there were places available, it was clear, as had been envisaged by the said internal message, a selection process was going to be required to be carried out, in order to obtain the necessary numbers to form the contingent, as set out above. 106 officers applied, of whom 83 were Protestant, 12 were Catholics and 11 were designated 'Other'. Of the 83 Protestant officers, these included Constables R and B, who were Protestant and whom the claimant relied on, as his comparators, in relation to his complaint of religious discrimination.
- 5 A paper sift exercise was then carried in or about August 1999 by Inspector Ronnie McKeown, who was at that time Personnel Manager of the first-named respondent, together with Gary Strain, EOII, a member of the Civilian Support Staff employed by the first-named respondent in the Human Resources Department and, in particular, on the International Desk of the Resourcing Branch.
- 6 The Tribunal is satisfied that, before embarking on the paper sift process, Mr Strain sought advice and, in doing so, had communications with a Mr Mike Rolf, Home Office UK Liaison Office, about selection procedures used by the Home Office to identify officers, for which it was responsible, for UN service.
- .7 The Tribunal found most unsatisfactory the absence of any proper documentation, in relation to how the scoring exercise was actually carried out by Mr Strain and Inspector McKeown. Indeed, the Tribunal would have expected to find, for example, a document or some similar record with the names of all the applicants and a matrix to include details of the criteria to be scored, the marks to be given to each criteria and the scores given for each criteria to each applicant.. Prior to the commencement of the hearing, no such documentation setting out all of the above details had been discovered by the respondents to the claimant, despite requests by the claimant. Immediately prior to the commencement of the claimant's evidence, Inspector McKeown produced a handwritten document, which he had apparently retrieved amongst his own papers, setting out what purported to be the mark scheme for his paper sift exercise. It certainly confirmed that no marks, as such, were allotted for achieving the requisite service and it was simply 'yes/no'; five marks maximum were to be given against the sickness record criteria; 10 marks were to be given against the line manager's recommendation; and 10 marks maximum were to be given against specialist skills. This document should clearly have been discovered previously, as was fairly acknowledge by Mr Dunlop; but the Tribunal is prepared to accept the document was written prior to and for the purpose of this exercise and sets out, albeit in very crude and basic terms, the basic structure of the paper sift exercise which Mr Strain and Inspector McKeown were engaged upon. However, after hearing the evidence of Mr Strain and Inspector McKeown, the Tribunal has considerable concern how, in practice, they applied the marks to the said criteria and, in particular, in relation to the sickness record and specialist skills. Indeed, the Tribunal came to the conclusion that the whole paper sift exercise was carried out in a most unsatisfactory and casual manner and without keeping proper records of the type indicated above. In relation to, for example, the sickness record criteria, each applicant was apparently given initially a mark of five, but then points were deducted where it was found that an applicant had unacceptable sickness absence. This to an extent was confirmed by the handwritten document. However, it was not clear, following the evidence of Mr Strain and Inspector McKeown to the Tribunal, how in fact and/or on what precise basis any such deduction for unacceptable sickness absence was made. Their memories of how it was done were now, some many years later, understandably hazy; but this was compounded by the absolute failure to make proper records at the time. Certainly the handwritten note was no substitute for doing so. It was equally unclear how the specialist skills were marked. However, for the reasons set out below, it was not necessary for the Tribunal, having noted the above criticism, to further examine the mechanics of how the calculations used in connection with the paper sift were carried out, and the marks given to each applicant, in any greater detail. If the claimant had been unsuccessful at the paper sift stage, then it would have been necessary to carry out such further examination of how the scores were calculated.
- .8 At the conclusion of the paper sift exercise, both the claimant and Constables R and B, his said comparators, had all obtained sufficient marks, at the paper sift to enable them to go through to the next stage of the process, namely the training course/assessment, which was required to be completed to be eligible for deployment to Kosovo.
- .9 It was the claimant's contention that both Constables R and B should never have got through the paper sift, by reason of their respective medical histories which, in his view, showed that they should not have been eligible to be considered even at the paper sift. In doing so, he relied on the last paragraph of Mr Strain's memo, as set out above, where it referred to the fact that certain illnesses would, as stated by Mr Rolf, automatically eliminate an officer from the process. However, the Tribunal is satisfied that, although sickness absence was considered in relation to the sickness record criteria at the paper sift stage, neither Mr Strain nor Inspector McKeown considered such detailed medical issues. Consideration of sickness absence which, in essence, was a numerical exercise, taken from computer records, was a very different exercise to considering whether a person suffered form a particular illness which would eliminate the officer from the process. Indeed, it would not have been proper for them to do so, as neither had the necessary medial qualifications and/or expertise. It will be necessary to consider further this issue, elsewhere in this decision; and, in particular, what medical examination, if any, was carried out as part of this exercise and/or by whom.
- .10 In the opinion of the Tribunal, whatever may have been the inadequacies of the paper sift exercise carried out by Mr Strain and Inspector McKeown, both Constables R and B and the claimant obtained sufficient marks to get through the paper sift exercise and all of them therefore proceeded to the next stage. In these circumstances, in the opinion of the Tribunal, the claimant had not established he was less favourably treated than his comparators, Constables R and B, in relation to the paper sift exercise. In view of this failure, the Tribunal was satisfied that the claimant had not established the necessary facts from which the Tribunal could conclude, applying the first stage of the two-stage process set out in the Igen v Wong guidance, referred to previously, the respondents had committed an unlawful act of discrimination on the ground of religious belief in relation to the paper sift exercise. In such circumstances, it was not necessary for the Tribunal to consider the second stage of the said two-stage process in relation to any alleged claim arising out of the paper sift exercise.
- .11 In order to ensure that there was sufficient officers selected, following the paper sift, a pass mark of 16 was required following the paper sift exercise, which is what the claimant obtained, and was therefore deemed sufficient to proceed to the next stage. To ensure sufficient officers were selected, following the paper sift, meant that the relevant pass mark had to be 15 or more. As there was no method of dividing all those who had obtained a mark of 15 it resulted in a total of 71 officers going through to the next stage of the selection process (this included the claimant, but also Constables R and B and two others who, by choice, did not proceed to the next stage). In the light of the foregoing, even if Constables R and B had each obtained a score of 0, for example, for sickness record, they would in fact still have obtained a mark of 15, which as set out above, was sufficient to enable them to go through to the next stage of the selection process.
- .12 The claimant also contended that he had been unlawfully discriminated against in relation to how the said paper sift had been carried out on the grounds of his sex. In relation to his claim of sex discrimination the claimant's comparator was a female constable, Constable L. Constable L not only obtained a similar score to that of the claimant, namely 16, but crucially, like the claimant, she also proceeded to the next stage. For the same reasons, as set out above in Paragraph 5.10, the Tribunal was satisfied the claimant could not establish any claim of discrimination on the grounds of sex, in relation to the paper sift.
- .1 The claimant's claim of discrimination of religious belief and/or discrimination by way of victimisation and/or sex therefore focused upon on how the claimant, having passed the paper sift, ultimately came to be placed on the reserve list for deployment to Kosovo. In relation to these matters, the Tribunal found the following findings of fact, insofar as relevant and material to the said claims.
- .2 Of the 71 persons selected, following the paper sift exercise, 57 were Protestant, 7 were Catholic and 7 were defined as 'other'. Two officers, for personal reasons, decided not to proceed any further, following the paper sift exercise. The final breakdown of the contingent agreed by the Chief Constable with the UN Authorities consisted of 60 officers; with the consequence that there required to be eight reserves selected from those that had got through the paper sift exercise. Of the officers selected, from those who had completed the training course and were ultimately selected for the reserve list, four were Protestant, two were Catholic and one was defined as 'other'. Originally the claimant, a Catholic, was also on the said reserve list. However the claimant, as set out later in this decision, indicated to the second-named respondent he did not wish to be on the said reserve list and, having failed to finish the training course, which was a requirement to be deployed, was subsequently removed from the said reserve list. The final reserve list therefore consisted of seven persons, excluding the claimant for the reasons set out above.
- 3 The claimant, together with the others who had passed the paper sift exercise, then proceeded to take part in a training course which was held at various police venues in Northern Ireland commencing from on or about 27 September 1999 to on or about 15 October 1999, followed by a final period, during the following week, at the Training Centre of the Garda Siochana at Templemore, Co Tipperary, Republic of Ireland.
- 4 Superintendent Middlemiss, the second-named respondent, was selected by the Chief Constable of the first-named respondent to be the Superintendent in charge of the contingent. During the earlier part of 1999, prior to his deployment to Kosovo, he was the Deputy Regional Head of CID for the Belfast Region of the first-named respondent. Prior to this he had lengthy service in various ranks and posts with the first-named respondent from in or about 1976. Superintendent Middlemiss is English, although he has served, as seen above, in Northern Ireland with the first-named respondent for a considerable period of time. He considers himself, by religion, to be a member of the Church of England and therefore a Protestant. He pointed out, in this context, his former wife is Catholic as are his grandchildren. Prior to this selection process for the reserve list, Superintendent Middlemiss did not know the claimant.
- 5 Prior to the holding of the training course, Superintendent Middlemiss and Doctor D Crowther, from the Occupational Health Unit of the first-named respondent, visited Kosovo on an initial recce to enable both of them to assess the conditions on the ground in Kosovo which were likely to be encountered by the contingent following its arrival.
- 6 The Tribunal is satisfied that Doctor Crowther carried out a detailed medical examination of all the candidates who had passed the paper sift exercise and attended the training course. As part of the applications for selection for the contingent each candidate completed two pages of a UN medical examination form. The remaining pages were completed by the examining doctor, who was Doctor Crowther, who clearly would have had access to all the detailed and relevant medical records held by the first-named respondent in relation to each candidate, as he required; but also the answers given by the candidates to the medical questionnaire at Pages 1 and 2 of the form. Following the said medical examination, Doctor Crowther was required to give his medical opinion 'on the medical and physical health of the candidate and fitness for the proposed post'. In giving his said opinion, relating to the health and the fitness of the candidates for the said post, namely to serve as part of the contingent in Kosovo, Doctor Crowther also had relevant background information of the conditions likely to be faced by the members of the contingent, which he had gained on the recce which he had carried out with Superintendent Middlemiss. There was no evidence to suggest that Doctor Crowther did not carry out his medical examination of each candidate, who had passed the paper sift exercise, in a proper manner. In particular, there was no evidence before the Tribunal to suggest that Doctor Crowther had not provided a positive medical opinion, as seen above, in relation to the health and fitness of not only the claimant but also Constables R and B.
- 7 Constables R and B and Constable L were not selected, unlike the claimant, for the said reserve list; and were deployed with the initial contingent who went to Kosovo in or about November 1999.
- 8 At this stage it is necessary to note that in relation to Constable L, who was a woman and not selected for the reserve list, the claimant acknowledged that other than Constable L was a woman and he was a man he had no other evidence to persuade the Tribunal that he had been unlawfully discriminated on the grounds of sex. In the circumstances, it is not necessary to make any further findings of fact in relation to Constable L and her said selection for deployment to Kosovo.
- 9 In relation to the claimant's claim of discrimination by way of victimisation, the claimant relied on named comparators, other than Constables R and B, namely Constables P, M, HO, HA and BA, who were all selected to be deployed and not selected for the reserve list. It is also correct to note that none of the said comparators had done the 'protected act' and were therefore appropriate comparators for the purpose of the claim.
- 10 The Tribunal therefore concluded the claimant had not established the second-named respondent, whom it accepts was the officer who took the decision who to place on the reserve list, had the necessary knowledge for the victimisation claim.
- 11 Having considered in the previous sub-paragraphs the relevant findings of fact in respect of the claimant's claim of sex discrimination and discrimination by way of victimisation, the Tribunal turned to consider the relevant findings of fact for the claimant's claim of religious discrimination.
- 12 The second-named respondent, Superintendent Middlemiss, in his evidence to the Tribunal clearly contended that, in carrying out the selection exercise for the reserve list he had done so based on an assessment of various specific criteria. In reality, the Tribunal came to the conclusion the said exercise had been carried out by him in a somewhat informal/ad hoc way, and with no documentation/records properly kept at the time to demonstrate how the said assessment had taken place. Indeed, the Tribunal would have expected, as with the paper sift exercise, to have found proper detailed documentation/records setting out the various names of candidates and how each was assessed against the said criteria and, as a consequence, it could then have been clearly and transparently shown how each of the candidates, in particular the claimant, were chosen for the reserve list from the other said candidates, in particular his named comparators, Constables R and B.
- .13 This was a selection exercise, which was clearly of importance to all the candidates. The enthusiasm of the members of the first-named respondent for such a posting is shown by the numbers that initially applied and the necessity for the initial paper sift. Such a posting was not without its dangers, but also excitement and gave officers an opportunity for additional experience outside Northern Ireland, which would clearly be of use on their return to Northern Ireland. It was of particular importance to the claimant who made it clear to the Tribunal he was very keen and anxious to be part of the contingent deployed to Kosovo in or about November 1999. The Tribunal has no difficulty in accepting that, by selecting the claimant for the reserve list, it meant that, although he was still considered suitable to be sent to Kosovo at some unspecified date in the future, he would not be able to go when the contingent was initially deployed; and he had thereby been disadvantaged, in circumstances which amounted to being subjected to some other detriment, as defined in the case of Shamoon (see Paragraph 4.3 of the decision). The claimant had made arrangements in his home life to enable him to go to Kosovo with the contingent in or about November 1999; and as he colourfully expressed the situation "it did not suit him" to go at some unidentified date in the future.
- .14 Constables R and B, the claimant's named comparators, were not placed on the reserve list and having completed the training course, which the claimant did not, were deployed to Kosovo with the first contingent which left in or about November 1999. To be deployed to Kosovo, an officer was required to have completed the training course. The claimant, having been selected for the reserve list, decided he was not willing to complete the training course and, in the circumstances, did not do so; and as this was a condition of selection had to be removed by the second-named respondent from the reserve list and was unable to be in a position to be chosen, from the other reserves, to go at some date in the future to Kosovo to join the contingent deployed in November 1999, as the need arose.
- .15 The training course, which was designed to equip the officers for deployment in Kosovo involved many activities and lectures relating, inter alia, to first aid/ map reading/GPS training/personal security in Kosovo/driving in the Balkans/ mine awareness/hostage-taking/conflict resolution. Some of the aspects of the training were specifically addressed to the situation in Kosovo and the conditions likely to be encountered there; whilst other aspects built on training which would have been part of normal training needs during service with the first-named respondent. There required, for example, to be specific firearms training in the use of the Glock pistol, which at that time was not in regular use with the first-named respondent and also the use of extendable batons. There was no doubt that Kosovo at that time was a volatile environment, following the end of the so-called 'Balkan Wars'; and there remained considerable ethnic tensions between the various peoples who make-up Kosovo and whom the contingent were going to require to police.
- .16 The Tribunal was satisfied that the decision in relation to which officers were to be placed on the said reserve list was taken by Superintendent Middlemiss; and was taken by him on or about 12 October 1999 during the period the training course was taking place in Northern Ireland and before the training commenced, during the third week of training, in Templemore, Co Tipperary, at the Garda Training Centre.
- .17 In the circumstances, in seeking to ascertain how the selection for the reserve list was made by Superintendent Middlemiss, the Tribunal considered carefully all the evidence given by him in relation to how he selected the reserve list and the criteria used by him and how he assessed the candidates against the said criteria.
- .18 In the initial witness statement made by Superintendent Middlemiss, which was prepared by him in or about Easter 2000, following his first period of leave from Kosovo after his deployment in November 1999; and in connection with a grievance which the claimant had raised with the first-named respondent in relation to his said selection for the reserve list – which grievance, in terms, was seeking to ascertain why he had been so selected, he stated:-
- .19 The Tribunal noted that in the above journal extract of Superintendent Middlemiss, which was written a short period after the events described and in his initial statement, written within six months of the events described, Superintendent Middlemiss, although fully aware the central issue for the claimant, at all times after he was told of his placement on the reserve list, did not tell the claimant why he was selected, merely described the general criteria. He did not give any detail of what was specifically taken into account in relation to the assessment, not least in the relation to the claimant. In particular, as shall be considered later, there was no specific reference to what was taken into account in relation to his performance on the training course, nor the specific complaints referred to which were stated to have been relied upon in the selection of the reserve list by Superintendent Middlemiss.
- .20 The Tribunal, at the conclusion of the respondents' evidence, remained unclear how each of the said criteria were assessed against each other. Indeed, Superintendent Middlemiss was unable to say how he had done it in any individual case. He said that it came down to a matter of judgment on his part, based on his experience, in assessing the various criteria. It was also not clear what documents he had in his possession at the time of the actual selection. Although he has referred to the application form and sickness records in the witness statement and journal, the Tribunal was not satisfied he had actually had such documents in his possession. It concluded he had access to same, and had relied on what he was informed by Personnel was contained in the said application form and, in particular, in relation to the following:-
- .20 In relation to the court commitments proforma, it asked each candidate to list their anticipated court commitments for the period of the proposed deployment in Kosovo, namely November 1999 – November 2000. It also stated that "it is important you ensure that actual court attendance is kept to an absolute minimum – any such attendances will be made in your own time, with the subsequent impact on your allocated compensatory time off". The claimant referred, in his proforma, to a number of court commitments involving some serious criminal cases – the dates for which were unknown. In these cases, which ranged from fatal road traffic accident to various serious assault cases he was either the investigating officer or on occasions he was a witness. The total of dates set out was eight; but the form also stated "possibly more to follow" – although the claimant denied (which the Tribunal accepts) that this had been added by him. It remained unclear who had done so and/or when it had been done.
- .21 Of considerable focus during the course of this hearing was the reference to the criteria relating to the performance at the training exercises. Again, there was no record of the performances by each candidate at each exercise and/or of any meeting where each candidates' performance was fully and properly addressed for the purposes of assessment. Indeed, Superintendent Middlemiss accepted that, if he did not know of any adverse comment, he assessed the performance as good and did not look into the matter any further. In particular, there was no detailed record relating to how Constables R and B performed at the training exercise; albeit this was a specific criteria. Superintendent Middlemiss said there was no adverse comment made about Constables R and B and therefore made an assumption their performance at training was good.
- .23 However, it became clear, from the evidence of Superintendent Middlemiss, that a crucial factor in the decision to select the claimant for the reserve list was because he became aware of a specific adverse comment, allegedly made about the claimant's performance during the training. Firstly, the Tribunal found it of considerable relevance to the determination of this complaint that, despite his reliance on this alleged comment, there was no written record of it. Indeed, the specific nature of the comment is not expressly addressed in any of his said witness statements/journal. There is only the general reference to his performance, but no detail. The claimant was not told, even though he was clearly seeking answers, in relation to why he was not selected, at the meetings on 14 and 15 October 1999, as referred to above. Superintendent Middlemiss can have been in no doubt that this is what he was doing. What, in the Tribunal's view, would have been more natural than to tell the claimant exactly what was said about his performance. The claimant was clearly agitated at these meetings on 14 and 15 October 1999; and the Tribunal has some sympathy that Superintendent Middlemiss might not have wanted to disclose such a comment (if made) in front of other officers. In the Tribunal's view this difficulty could have been easily overcome. The claimant raised a subsequent grievance, where he again was trying to ascertain why he had been selected for the reserve list; but again he was still not told of the specific adverse comment relied upon. He was not informed during the course of the training of any adverse view of his performance. Indeed he stated he had been complimented on one occasion by the trainers in relation to his performance.
- .24 Superintendent Middlemiss made it clear that, as a result of the alleged comment he had concerns about the claimant's suitability in the volatile environment of Kosovo, in circumstances where it was alleged he had displayed such over enthusiasm in a conflict resolution exercise. It suggested to him there were issues, relation to the claimant, about aggression. He gave evidence that, as a consequence, but not in relation to any other candidate and, in particular, not in relation to Constables R and B, he made enquiries of the Personnel Department 'B' to see if any allegations/complaints had been made by the public against the claimant. If there were such complaints, it would confirm his concerns about the claimant's suitability and whether, in the circumstances, it would be more appropriate to put the claimant on the reserve list to await later deployment. If there were no complaints, it would negate his concerns and allow him to ignore the alleged adverse comment. He was informed by the Personnel Department that there were some complaints/allegations against the claimant by the public; but again no records or details were taken at the time. Indeed, he accepted in evidence that, at the time, he did not know any details or the number of any such allegations. He suggested that that was not his concern, which the Tribunal found surprising. The Tribunal is satisfied that Superintendent Middlemiss did make the said enquiries.
- 1 In accordance with the two-stage test and guidance set out in the case of Igen v Wong and the legal authorities referred to in Paragraph 4.4 of this decision, it was firstly necessary for the Tribunal to determine whether the claimant had established facts from which the Tribunal could [Tribunal's emphasis] conclude, in the absence of an adequate explanation, that the respondents had committed an act of unlawful discrimination against the claimant on the ground of religious belief and/or by way of victimisation contrary to the 1998 Order and/or on the grounds of sex, contrary to the 1976 Order. In so doing, the Tribunal was careful to note that, at this stage, it was not, by reason of the use of the word 'could', required to reach a determination that such facts would lead to a finding of unlawful discrimination on any of the above grounds.
- 2 In relation to the claimant's claim of sex discrimination, there was clearly a difference of sex between the claimant and Constable L and a difference in treatment, as she was also not selected for the reserve list. However, as Mummery LJ, said in Madarassy (see Paragraph 4.5 of the decision), the burden of proof does not shift on such bare facts, which only indicate a possibility of discrimination. The claimant's claim of discrimination on the grounds of sex must therefore fail and is dismissed.
- 3 In relation to the claimant's claim of discrimination by way of victimisation, the Tribunal also concluded that, although his named comparators had not been placed on the reserve list, a difference in treatment, in the absence of the required knowledge by the second-named respondent of the protected act, the claimant was unable to establish the necessary facts from which the Tribunal could conclude, in the absence of an adequate explanation, the respondents had committed the said act of unlawful discrimination. The burden of proof therefore did not shift and the said claim of discrimination by way of victimisation must fail and is dismissed.
- .4 In relation to the claimant's claim of religious discrimination, on the basis of the findings of fact set out in the previous paragraph in relation to the said claim, there was no doubt the claimant, a Catholic, had not been selected for the reserve list, in circumstances where his Protestant comparators, Constables R and B, had not been so selected.
- .5 In assessing the criteria for selection for the reserve list, the Tribunal was not satisfied that the claimant was treated less favourably in relation to the assessment made of his sickness/absence record – his record having not been taken into account in any event in the said assessment.
- .6 The Tribunal could accept, on the facts found by it, that in regard to the number of court commitments there was a difference in treatment in relation to Constable R (not Constable B) and the claimant – albeit the numerical difference of nine for Constable R, eight for the claimant (taking each at face value, as set out previously) was marginal. It was possible the difference was greater, as suggested by the claimant. However, in the absence of any relevant records in relation to how this precise exercise was carried out, and in the absence of Constable R's actual proforma so the difference could be clarified, the Tribunal was prepared to conclude the burden of proof had shifted, under the first stage of the Igen test, arising out of the said difference in treatment.
- .7 The Tribunal had no hesitation in concluding that the burden of proof had shifted in the circumstances where it had found, as set out in the previous paragraph, the alleged adverse comment about the claimant's performance at training had not been made; although performance had been relied upon by Superintendent Middlemiss as a criteria for selection of the candidates, including Constables R and B and the claimant. Again, as was a feature throughout this selection exercise, no record had been kept of the performance of the candidates' training and/or any comments made. In relation to Constables R and B, it was assumed their performance was good. Further enquiries were made by Superintendent Middlemiss of the Personnel Department, in relation to complaints made by the public against the claimant. However no such enquiry was made of any person and, in particular, of Constables R and B. Even though the result of that enquiry was of significance to Superintendent Middlemiss in deciding to select the claimant for the reserve list, once again no proper records were kept at the time of the said enquiry. Superintendent Middlemiss relied upon a comment relating to the performance of the claimant which, in the view of the Tribunal, had not been made and made the said enquiries of the claimant but not of Constables R and B.
- .8 The respondents were therefore required to prove that they did not commit, or as the case may be, are not to be treated as having committed the discriminatory act.
- .9 In relation to the particular issue of the court commitments, the Tribunal was prepared to accept Superintendent Middlemiss' explanation that, in assessing whether the number and/or nature of the court commitments, made it more appropriate to put a person on the reserve list rather than to immediately deploy them to Kosovo, with the complications and consequences if they had to return for the commitments, was a matter of the exercise of judgment by him based on his long experience in the Police Service. The Tribunal accepted it should be slow to challenge the exercise of such judgment even if it might be unfair. Unfairness is not sufficient to establish discrimination (see Network Rail Infrastructure Ltd v Griffiths Henry [2006] IRLR 865, see Paragraph 4.4 of this decision). In any event, in this case, the numerical differences between the court commitments of Constable R and the claimant's court commitments were minimal.
- .10 In relation to the alleged adverse comment about the claimant's performance at training, it was not accepted, as stated previously, by the Tribunal that any such comment was ever made. However, it was relied upon by Superintendent Middlemiss as an explanation for his said selection. Not surprisingly, in the circumstances, the respondents were unable to provide an adequate explanation for relying on a comment, for which there was no basis and was factually wrong.
- .11 In the circumstances, in light of the Tribunal's findings above, the Tribunal concluded, in accordance with Article 38A of the 1989 Order, that the respondents had not provided the necessary adequate non-discriminatory explanation for the said less favourable treatment to discharge the burden of proof that religious belief was not the ground for the said less favourable treatment. Having failed to discharge the said burden of proof, the Tribunal was therefore satisfied that the claimant was discriminated against by the respondents on the grounds of religious belief.
CASE REFS: 00442/99 FET
4568/99
CLAIMANT: Kevin Curley
RESPONDENTS: 1. Chief Constable of the Police Service of
Northern Ireland
2. Superintendent Middlemiss
The unanimous decision of the Tribunal is that:-
(1) The claimant was not discriminated against on the grounds of his sex in relation to his placement on a reserve list for deployment to Kosovo in or about September/October 1999, pursuant to the Sex Discrimination (Northern Ireland) Order 1976. The said claim is therefore dismissed.
(2) The claimant was discriminated against by the respondents on the ground of religious belief, but was not discriminated by way of victimisation by the respondents, in relation to his placement on the reserve list for deployment to Kosovo in or about September/October 1999, pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998. The said claim of discrimination by way of victimisation is therefore dismissed.
(3) As agreed, the claim of the claimant will be re-listed for a hearing to consider any remedy to which the claimant is entitled on foot of the above decision.
Constitution of Tribunal:
Chairman: Mr N Drennan QC
Members: Mr M Gallagher
Mrs M Heaney
Appearances:
The claimant appeared in person and was not represented.
The respondents were represented by Mr J Dunlop, Barrister-at-Law, instructed by Crown Solicitors' Office.
Reasons
The respondents each subsequently presented to the Tribunal, Notices of Appearance to the claimant's originating claim in which each respondent denied liability in relation to the claims of the claimant.
Pursuant to orders which had been made by the Tribunal, pursuant to its case management powers under the Fair Employment Tribunal Rules of Procedure 2005, the Tribunal had ordered the parties, prior to the hearing of this matter to prepare and exchange witness statements in relation to any witness upon whose evidence they wished to rely. Witness statements, on foot of the said orders, had been prepared and exchanged with the claimant by the representatives of the respondents in relation to those persons who gave oral evidence, as set out above. However, witness statements in relation to other persons had also been prepared and exchanged with the claimant by the respondents' representatives, but whom the respondents' representatives decided not to call to give oral evidence before closing their case, as aforesaid.
Inspector John Adams,
Superintendent Tim Hanley,
Superintendent Roger McCallum, and
Chief Inspector Wesley Wilson;
and then, following the application by the respondents' representatives, the respondents' representatives were then given leave to cross-examine Chief Inspector (as he then was) Wesley Wilson, who duly attended for cross-examination by the respondents' representative, Mr Dunlop.
It was agreed that, in view of the nature of the above applications, which have not been the subject of any other reported decision in this jurisdiction and which it was acknowledged gave rise to difficult issues of law, the Tribunal would incorporate, within the terms of this decision, the nature of the said applications and the rulings made by the Tribunal on foot of the applications, referred to above.
"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 call 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 new 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
(b) 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.
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:-
" …
(d) 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.
(e) Each witness statement will be read aloud to the Tribunal, unless the Tribunal considers that it inappropriate to do so.
(f) 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 –
(a) ensuring the parties are on an equal footing;
(b) dealing with the case in ways which are proportionate to the complexity or importance of the issues;
(c) ensuring that it is dealt with expeditiously and fairly; and
(d) 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.
In particular, the Tribunal drew attention to Paragraphs 17.26 and 27 where it is stated:-
"17.26
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."
"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."
In this matter, it was not until the close of the respondents' case that the claimant and the Tribunal were informed that the respondents did not intend to call the said persons 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. In the Tribunal's view, Mr Dunlop could not be required to explain his reasons why it had been decided by the respondents not to call those persons, whose statements had been prepared or exchanged; albeit he did in fact indicate that the decision was taken, following the giving of the evidence of the second-named respondent, and after the respondents' representatives had considered all the evidence which had been given at that time on behalf of the respondents. Notice was then given, he stated, immediately to the Tribunal of the respondents' decision not to call any other evidence.
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. 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 and one which the Tribunal would recommend might be adopted in this jurisdiction, so that a person, such as the claimant, who is unrepresented, would not be taken by surprise; 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 such persons would be called to give oral evidence. In any event, as indicated above, the Tribunal made it clear that, although the case of each party had been closed, it would not allow such a technicality to prevent it hearing any application the claimant wished to make in the circumstances and making Orders in relation to these matters, if it considered it relevant and appropriate to do so; and before hearing the final submissions of the parties.
"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 9th 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 –
(a) call the witness to give evidence at trial; or
(b) 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."
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 the 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).
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.
Having indicated to the claimant the opinion of the Tribunal that, pursuant to an application, if it considered it appropriate, it could admit such evidence, on the claimant's behalf as hearsay evidence; the Tribunal also made clear that, if it was to admit such evidence, the weight to which the Tribunal would attach to such evidence would be a matter 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. In addition, the Tribunal reminded the claimant of the dicta set out in the above extract from Disclosure, but also the case law referred to therein, that if such evidence was admitted by the Tribunal the claimant would not be entitled to invite the Tribunal 'to disbelieve as untrue a substantial part of that evidence'. As was discussed, in the course of submissions to the Tribunal he would not be allowed to 'cherry pick some or all or part thereof of the statements so admitted'
Having taken time to consider his position, in light of the foregoing, the claimant made it clear that he still wished to proceed with his amended application and for the Tribunal to admit the said witness statements, on his behalf, as hearsay evidence.
The Tribunal, having considered the claimant's said application, indicated that, in the circumstances, it was minded to exercise its discretion to allow the witness statements of Superintendent Roger McCallum, Inspector John Adams, Chief Inspector Wesley Wilson and Superintendent Tim Hanley to be admitted in evidence, on behalf of the claimant, as hearsay evidence. However, before finalising its decision, in deciding whether to exercise its discretion, the Tribunal decided that it would require the respondents' representative to indicate whether or not it intended to make an application for leave to have all or any of the witnesses whose statements would be so admitted, attend for cross-examination by him. In making his submissions in relation to the application to the Tribunal, the respondents' representative had expressly reserved his position on this issue. The Tribunal considered, in view of the unusual nature of these issues and the fact that the claimant was unrepresented, that the claimant should be fully aware of what might occur if the Tribunal finally decided to grant his said application.
"33.4
(1) Where a party –
(a) proposes to rely on hearsay evidence; and
(b) does not propose to call the person who made the original statement to give oral evidence;
the Court may, on the application of any other party, permit that party to call the maker of the statement to be cross-examined on the contents of the statement.
… ."
Order 38, Rule 19 of the Rules of the Supreme Court (Northern Ireland) 1980 provides as follows:-
"19
(1) Where a party to civil proceedings adduces hearsay evidence of a statement made by a person but does not call the person who made the statement to give evidence, the Court may, on the application of another party, allow that other party to call and cross-examine the person on the statement as if he had been called by the first mentioned party and as if the hearsay statement were his evidence-in-chief.
(2) Where the Court allows another party to call and cross-examine the person who made the statement, it may give such directions as it thinks fit to secure the attendance of that person as a witness and as to the procedure to be followed."
As can be seen, Order 38, Rule 19 of the Rules of the Supreme Court (Northern Ireland) 1980 is in similar terms to Rule 33.4 of the Civil Procedure Rules, as set out above. (See further Valentine on Civil Proceedings the Supreme Court – Supplement, Paragraph 13 – 113f.)
The Tribunal was therefore satisfied, in light of the foregoing, that it had the power, in its discretion, if it considered it appropriate, to grant such permission to allow the respondents to cross-examine those witnesses, whose witness statements had been admitted on behalf of the claimant as hearsay evidence, if such permission was sought by the respondents' representative – but at all times it was mindful of the warning set out in the course of the judgment in the Douglas decision at Paragraph 20 when Lord Woolf, stated:-
"20 It is significant to note that there are limits to the power of the Court under Part 33.4; it is to allow the maker of the statement to be cross-examined as to its contents. That provision does not enable Mr Tugendhat to cross-examine the witness when she is called as to matters that do not arise out of the statement. Reference to the 'contents' of the statement confines it to matters dealt with in the statement. But a reasonable approach has to be adopted to determine what are the contents of the statement for that purpose. The Trial Judge has a considerable discretion over the extent of the cross-examination. If he considers that the cross-examination is going beyond proper bounds, then his powers to control evidence enables him to limit the evidence in an appropriate manner. The Judge can be relied upon to see that no unreasonable use is made of the powers of cross-examination."
In the Tribunal's view the above warning was equally applicable in this jurisdiction, having regard to the provisions of Order 38, Rule 19, of the Rules of the Supreme Court (Northern Ireland) 1980; but, in any event, the Tribunal would also be entitled to control the extent of any such cross-examination, under its general powers under the Rules of Procedure referred to previously.
The claimant, after again taking time to consider his position, in light of the foregoing, indicated that he wished to proceed with his application. The claimant, at all times, contended that he should be entitled to have the said statements admitted as hearsay evidence on his behalf and be entitled to rely upon them, in the circumstances. The Tribunal considered that, in the circumstances, it was not for the Tribunal to direct the claimant's proofs and to weigh up whether it was an appropriate application for the claimant to make and the advantages and disadvantages of the admission of such evidence in the above circumstances. The Tribunal, in light of the foregoing and, in exercise of its powers of discretion under the Rules of Procedure, referred to previously, and after having regard to the terms of the overriding objective to deal with cases justly, decided, in the exercise of its discretion, to admit the statements of the said Superintendent Roger McCallum, Inspector John Adams, Chief Inspector Wesley Wilson and Superintendent Tim Hanley, on behalf of the claimant, as hearsay evidence. Having done so, it also decided to exercise in its discretion to allow Chief Inspector Wesley Wilson to be called as a witness to be cross-examined by the respondents' representative on the contents of his said witness statement. In exercising its discretion, as aforesaid, the Tribunal was mindful at all times that it had not only given the claimant every opportunity to consider his position both in relation to his application to admit the said statements as hearsay evidence on his own behalf; but also that, in proceeding with that application, he was at all times aware that the respondents would wish to make an application to have Chief Inspector Wesley Wilson cross-examined as to the contents of his statement. In the circumstances, the Tribunal did not consider it would be appropriate, having admitted the said statement as hearsay evidence, to refuse the application of the respondents' representative to cross-examine Chief Inspector Wesley Wilson – though it made clear to the respondents' representative the limited nature of any such cross-examination. It also reminded the claimant of the limited nature of any re-examination, following any such said cross-examination.
(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.
(4) A person ('A') discriminates by way of victimisation against other person ('B') in any circumstances relevant for the purpose 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 stated contravened this Order; or
(iv) otherwise done anything under or by reference to this Order in relation to A or any other person; or
(v) 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) … ."
…
(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 [2003] 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'.
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 –
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 between the parties 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 Investec 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 Wong and the said two-stage process.
In the case of Bridget McDonagh & Others v Samuel Tom T/A The Royal Hotel, Dungannon [2007] 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 1998 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'.
(2) If the claimant does not prove such facts he or she will fail.
(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that 'he or she would not have fitted in'.
(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.
(5) It is important to note the word 'could' in 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 fact 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, 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.
(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 s.56A(10) of the SDA. 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 respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.
(10) 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.
(11) 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.
(12) 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.
(13) 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 (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 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 Wong …
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 [2006] IRLR 748, which was expressly approved by Campbell LJ 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 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."
"3(1) A person discriminates against a woman in any circumstances relevant within the purpose of any provision of this Order if –
(a) 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.
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.
…
11. 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."
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 the claimant has 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.
(19) 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 [1999] 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] ICR 1156, EAT, particularly at Paragraphs 56 – 58, to which reference shall be made later in this decision.
On or about 6 August 1999 an internal Force Message/Memorandum/ Advertisement was issued by the first-named respondent seeking applications from various ranks in the first-named respondent for deployment to Kosovo as part of an UN Force for a fixed period, which was due to commence in or about mid-September 1999. The said document stated, inter alia, as follows:-
"The RUC contingent will consist of:-
One Superintendent (Contingent Commander).
Two Inspectors; eight Sergeants; 49 Constables (Regular)
With two Sergeants and four Constables selected to act as reserves."
It is correct to note that in inviting the first-named respondent to take part in the said UN Force, the Home Office suggested that if 60 RUC were to be deployed the contingent should be broken down as set out above – giving a total of 66 officers to be trained and equipped in connection therewith. The idea of having a number of reserves was to allow for replacement officers, if any officer, for whatever reason, failed to be able to fulfil the said 12 month deployment. Although the said Force Message had stated that the contingent would consist of the above members, the Tribunal is satisfied that this was the aim, based on the initial suggestion by the Home Office, who were co-ordinating with the UN in relation to the formation of the contingent; and did not mean, in light of the circumstances at the relevant time, there could not be any alternation to the final breakdown of the contingent from what had been originally envisaged, subject to the ultimate agreement of the UN, and/or the Government and/or the Chief Constable of the first-named respondent, as appropriate.
The Force Message went on to state:-
"Applications are now invited from Superintendents, Inspectors, Sergeants and Constables in the above posts based in Kosovo.
The selected officers will be seconded for a twelve month period which will probably commence in mid-September 1999. The selected officers will undergo a thorough medical examination and a one-week training course prior to deployment."
The document clearly envisaged that with regard to the medical criteria that this would involve the said medical examination, which the Tribunal is satisfied, by its nature, would require to be carried out by appropriate medical personnel, and certainly not by administrative/non-medically trained personnel.
The eligibility criteria set out in the said document included the following:-
"Applicants must have:-
(1) Minimum of five years regular police service.
(2) Be in excellent health with a good sickness record.
(3) Have a good practical experience in police work.
…
(8) Have a good disciplinary record.
…
(11) Be of a rank requested by the UN.
…
The document concluded that officers 'will undergo a selection process which is according to a balance of skills and medical suitability. Thereafter, given the large number of initial enquiries, it is possible that random selection may be the only option once suitably qualified volunteers have been identified."
Mr Strain was informed, as set out in a file note of his conversation with Mr Rolf, dated 18 August 1999:-
"Home Office use a simple paper sift method comprising of the following:-
UN Criteria
Maximum mark of 10 points
Police experience
Maximum mark of 10 points
Medical
Maximum mark of five points
Acceptable sickness absence according to the Home Office is 12 days per year with 36 days in the last three years. Sickness absence in relation to injuries will be looked at sympathically.
Illness relating to stress, asthma, heart condition, blood pressure will automatically eliminate an officer from the process. The reason for this is because of the UN's strict process whereby they will send officers home if they realise that they suffer from/have suffered from any of the above."
However, it was clear from the evidence given to the Tribunal by Inspector McKeown and/or Mr Strain that, despite the knowledge of what method was used by the Home Office when carrying out a paper sift for officers for UN service, for whom it was responsible for selecting, Mr Strain and Inspector McKeown did not follow the practice of the Home Office in relation to the paper sift – but rather adapted it for use in connection with the paper sift to be carried out by them for the initial short listing of the candidates. In this context, the request from HM Government to the first-named respondent to send a contingent of police officers from the RUC was unprecedented and reflected, in particular, the experience of the RUC in Northern Ireland (unlike the police forces in Great Britain) as an 'armed' police force. To select such a contingent for UN service was therefore a new experience for the first-named respondent and the Tribunal could accept that there were no laid down procedures or practices that had been previously established by the first-named respondent to enable it to carry out such an exercise. It was also not required, in the Tribunal's view, to follow the precise method adopted by the Home Office, as set out in the file note. However, as set out below, the Tribunal was concerned that, by adopting the system that they decided to use for this particular paper sift exercise, sufficient care was not taken to ensure the process had the necessary clarity and transparency and they did not ensure the necessary, appropriate and relevant records were kept. Indeed, as shall be apparent elsewhere in this decision this lack of clarity/transparency and/or absence of proper record-keeping was a feature of this whole selection process.
The proforma score sheets, filled in by Mr Strain and/or Inspector McKeown, indicated some form of marking system; but again what it was, was not apparent to the Tribunal, and nor could it be properly explained by Mr Strain and/or Inspector McKeown as seen above.
At the conclusion of the paper sift the claimant, Constable R and B satisfied the service criteria (maximum five years regular service). The proforma score sheet in relation to Constable R showed he obtained a total of 18 marks, made up of:-
Sickness record 3
Recommendation of Line Management 10
Specialist skills 5
The proforma score sheet in relation to Constable B showed he obtained a total of 16 marks made up of:-
Sickness record 1
Recommendation of Line Management 10
Specialist skills 5
The proforma score sheet in relation to the claimant showed he obtained a total of 16 marks made up of:-
Sickness record 0
Recommendation of Line Management 10
Specialist skills 6
The Tribunal was also of the opinion that this medical issue was not only determined by Doctor Crowther, having carried out the said medical examinations, as provided for on the said medical form; but it was a totally separate exercise/process from the process adopted in order to determine who should be selected from the said reserve list. It is apparent that the opinion given by the doctor to in relation to the claimant was taken on 7 October 1999, which was prior to the date when the decision was taken in relation to who should be on the reserve list; and the Tribunal has no reason to believe the situation was not similar in relation to Constables R and B.
In relation to the above matters relating to this medical issue, it is also of relevance to note that, following an application by the claimant, during the hearing, the Tribunal ordered discovery of certain paragraphs contained on Pages 1 and 2 of the UN medical form, which had been completed by Constables R and B. These paragraphs would have been completed by them as part of the questionnaire. In so ordering the discovery of these documents, without notice to Constables R and B, the Tribunal had regard to the issues of relevance and necessity but also the right to privacy under the Human Rights Act 1998 of the said constables and, in its ruling in connection with the Orders for Discovery, restricted such discovery to the said paragraphs. Indeed, the claimant did not seek discovery of any other parts of the said forms and, in particular, the detailed examination carried out by Doctor Crowther and his opinion on their health and fitness.
The discovered paragraphs related, in particular, to the following questions:-
"1. Have you suffered from any of the following diseases or disorders? –
any nervous or mental disorder? - Yes/No;
2. have you ever consulted a neurologist, a psychiatrist or a psychoanalyst? If so, please give his name and address/for what reason?/date of the consultation?."
The answers given by Constables R and B to the said paragraphs were all in the negative and were therefore, in the circumstances, of no assistance, in the view of the Tribunal, to the claimant's claim in relation to his selection on the reserve list. The claimant contended that Constables R and B should have been excluded from selection for the contingent on medical grounds, having regard to the UN criteria referred to in the file note of Mr Strain dated 18 August 1999, and, as seen previously, should not have been considered at the paper sift stage or indeed any stage of this selection process. Prior to the hearing he had obtained, on discovery, a computer print-out which indicated that Constable R had previously suffered from stress in or about 1995 and 1996 for which he had required to be absent from work. Similarly, Constable B's computer print-out referred to a period of stress in 1995 for which he also had a period off work. Doctor Crowther would have had, in the Tribunal's opinion, access to these records. The Tribunal had the opportunity to examine the full UN medical form filled in by Doctor Crowther in relation to the claimant; and it was apparent it was filled in after a detailed examination by him. The Tribunal has no reason to believe that Doctor Crowther did not carry out a similar detailed examination for all candidates, including Constables R and B. Indeed, given the responsibility placed on Doctor Crowther to give his considered opinion whether a candidate was fit, on medical grounds, to be included in the contingent, the Tribunal is satisfied that, regardless of the answers given by Constables R and/or B in the questionnaire, the doctor had concluded on the basis of his own examination and access to any relevant records (including the references to stress) there were not any medical issues which required him to conclude that Constables R and/or B, were not fit, as required, for the said posting to Kosovo and confirmed this on their UN medical form. There was no evidence to suggest that Superintendent Middlemiss had any influence or indeed any input in relation to the medical opinion given by Doctor Crowther. The Tribunal was satisfied that Doctor Crowther passed the claimant and Constables R and B medically fit for the post; and, having done so, the second-named respondent accepted his opinion and proceeded to make his selection for the reserve list on different criteria from such medical issues determined by Doctor Crowther.
The major focus of the claimant's said claim of victimisation was that Chief Superintendent Wesley Lamont, who was the third-named respondent in the claim previously brought by the claimant, namely Case Reference No: 56/98 FET, the 'protected act', had as Head of Personnel (B Department), with the first-named respondent, at the time of this selection, in some way influenced, and/or involved himself in the decision-making process relating to the selection of the reserve list by Superintendent Middlemiss. It has to be noted at this point that, as set out later in this decision, it was to 'B' Department that Superintendent Middlemiss had made certain further enquiries concerning complaints/allegations by the public against the claimant – before he made the selection for the reserve list. It was apparent to the Tribunal from the nature of the cross-examination by the claimant of Mr Lamont that the personal relationship between them was not good. However, firstly, it emerged, during the course of this hearing, that in fact at the relevant time Mr Lamont was not the Head of Personnel (B Department) at the time of the selection process. As appeared from his personnel posting record, he only took up this appointment on or about 6 December 1999, subsequent to the selection for the reserve list.
Secondly, both Chief Superintendent Lamont and the second-named respondent, Superintendent Middlemiss, categorically denied that Chief Superintendent Lamont had played any role, either directly or indirectly, in the selection of the said reserve list or indeed any part of this selection process. The second-named respondent expressly denied any knowledge of the protected act. Indeed, there was no evidence before the Tribunal that established, to the satisfaction of the Tribunal, the second-named respondent had any such knowledge. Such knowledge, as set out in Paragraph 4.9 of this decision, is a necessary ingredient for a claim of discrimination by way of victimisation. There is no doubt that Superintendent Middlemiss was a senior officer with a senior role with the first-named respondent, prior to his deployment, as the Deputy Regional Head of CID for the Belfast Region. He had also filled senior roles prior to that. In the course of those roles, the Tribunal could readily accept that, in connection with his duties, he could have come into contact, for example, at meetings with Chief Superintendent Lamont as a colleague; but also with the other senior officers who gave oral evidence in this matter and also with those senior officers whose statements were admitted as hearsay evidence on behalf of the claimant, in the circumstances previously described. However, in the judgment of the Tribunal, there was no evidence from those witnesses to show, the second-named respondent had obtained the required knowledge of the protected act. It might be argued that, in the course of conversation amongst such senior officers at meetings, for example, the topic of the protected act would have been raised with and/or in the hearing of the second-named respondent. This would be to speculate; and in the Tribunal's opinion it would have been wrong, in the absence of any other relevant evidence, to so speculate. The Tribunal was confirmed in this view by the judgment of Mr Commissioner Howell QC, as he then was, when he stated at Paragraph 58 of his judgment in the case of Chief Constable of Cumbria [2002] ICR 115 – where he found the Tribunal was wrong to have found knowledge, for the purposes of a victimisation claim:-
" … their conclusion rejecting the evidence on behalf of the Chief Constable on this issue is expressed in the entirely general, and we have to say speculative terms, that 'they must have known' without identifying which officers they were finding as a fact to have such knowledge, and from where. In our judgment the conclusion on this issue thus erred on depending too much on generally expressed suspicion, and too little on clear findings of proved fact on who it was who knew what, and how the Tribunal were satisfied any such knowledge had fed into the decision made on 12 April 1999, so as to have been the cause of it for the purposes of amounting to discrimination by way of victimisation under Section 4 of the 1975 Act … ."
In relation to his claim of victimisation, the claimant contended his named comparators should not have been selected before him, as each of them obtained lower paper sift scores than him. The Tribunal was satisfied the second-named respondent, in selecting the reserve list, did not rely on the paper sift scores in making his selection. Indeed, it was apparent from the list of persons who were selected to be deployed and those who were selected for the reserve list that there were some on the reserve list with higher and lower scores than the claimant and similarly on the deployed list. In view of the Tribunal's conclusion, in relation to the issue of knowledge, as set out above, it was not necessary for the Tribunal, in the circumstances, to consider in any further detail the above paper sift scores.
" …
The following morning, Thursday 14 October 1999, I spoke with four officers at Magilligan. One of those officers was Constable Curley. I told him they had been selected as reserves for the Kosovo deployment adding that:-
(1) 60 (sixty) officers was the required number from the United Nations although the Chief Constable was prepared to let all 68 police to deploy, the United Nations only wish for 60 at this time. Reserves would no doubt be deployed, but not initially.
(2) Explained that there was no stigma attached to this decision it was a necessary requirement as all the course members had been aware from day one.
(3) I explained to them that they should all remain and complete the course to qualify.
(4) [Tribunal's emphasis] I explained to them I considered a number of factors before coming to my decision; for example application scores, sick records (given the conditions we were going to work in), performance on the course as described by other supervisors, number of complaints against officers and outstanding court cases.
(5) I explained they would be deployed to fill any shortfall and the United Nations may well ask for additional officers to be deployed.
(6) That I had no doubt that they would be deployed before the year's duty ended and if not, they would most certainly be on next deployment.
(7) I thanked them all for their individual efforts.
… ."
In referring, in his statement to a discussion he had with the claimant in the canteen at Garnerville on the 15th October 1999, when the claimant had again challenged the decision to place him on the reserve list, Superintendent Middlemiss in his statement stated:-
" … during the discussion I again explained to Constable Curley that applicants' course applications, sick records, and conduct in the course had been examined … ."
This witness statement was relied upon, by Superintendent Middlemiss, as part of his evidence-in-chief to the Tribunal.
The handwritten journal written by Superintendent Middlemiss referred to his meeting with the claimant and others selected for the reserve list, on 14 October 1999, and from which the witness statement, referred to above, was clearly prepared stated:-
"I'd considered a number of factors before coming to my decision, mentioned in general terms application scores, sick record, performance on course was discussed with staff inspectors, complaints, etc."
Although there were some small differences between what was stated in the journal and the witness statement, both referred, in particular, to performance and complaints issues as criteria for the selection of the reserve list.
The Tribunal is satisfied that all the candidates who had passed the paper sift were made aware, at all material times, of the importance and relevance of a candidate's court commitments in the period following deployment because, in particular, of cost implications of bringing an officer back from Kosovo, which would not be paid for by the UN Authorities. As a consequence, each officer had been required to fill in a court commitments proforma.
"How many days sickness have you taken in the last three years …?"
Insofar as he based his decision on same, the Tribunal accepts he took the information in answer to the above question given to him at face value and did not look behind it. Indeed, this is consistent with his general ad hoc approach to this whole exercise.
Similar information had been used in relation to the scoring of sick absence for the purpose of the paper sift.
In the event, the claimant had put on his application form two days sick absence. The Tribunal have come to the conclusion, as stated by Superintendent Middlemiss, this period of sick absence played no part in the decision to select him for the reserve list.
The Tribunal could understand Superintendent Middlemiss' concern about the number of court dates set out on the proforma by the claimant. However; there was also some strength to the claimant's assertion at the time of his meeting with Superintendent Middlemiss at Magilligan on 14 October 1999, when he was informed of his selection for the reserve list and also when he further challenged the decision at a meeting with the second-named respondent on 15 October 1999 at Garnerville, that he had agreed many of the cases could resolve as pleas of 'guilty' and this could occur whether he was a witness or the investigating officer; and he would not therefore be required to attend court and to have to return from Kosovo, with all the costs and inconvenience involved. The Tribunal accepted Superintendent Middlemiss' concern that these serious criminal cases, of the above nature, were often strongly contested and/or pleas of 'guilty' did not arise until at or immediately before the said court date. However, the Tribunal was again, in the absence of relevant records, unclear how this criteria was judged/assessed against the other criteria and, in particular, in what circumstances would court commitments outweigh other criteria and, in what circumstances was Superintendent Middlemiss prepared to allow a person with court commitments to go on the initial deployment. In the case of his named comparators, Constable B's proforma gave a 'nil return'. The Tribunal accepts this information was taken at face value at the time and therefore the claimant's court commitments would not have compared favourably with Constable B. Subsequent details provided on discovery by the respondents suggested Constable B may not have provided accurate information on his said form; but taking what was on the form at face value the Tribunal did not consider them further. Constable R's proforma had been lost/mislaid, which is clearly unfortunate. However, the Tribunal was not prepared to take the view, in the absence of any other evidence, that such loss was in any way deliberate. The claimant contended Constable R had more commitments than he had, based on his knowledge of service with Constable R. Police records suggested Constable R had nine court commitments. Assuming these would have all been on the proforma, and taken at face value, as aforesaid, there was some difference in treatment. But there was no details of each said court commitment. The claimant maintained Constable R had a further four court commitments, which related to events which he had noted on his own form but were not included in the police records of Constable R. Once again in the absence of relevant records kept of how the selection was made and each criteria judged, the Tribunal whilst noting there was some difference in numbers between the claimant's and Constable R's court commitments, did not know how Superintendent Middlemiss exercised his judgment in deciding how to distinguish between the various court commitments and when such a commitment was likely and/or be more likely to require an officer to be present in court in Northern Ireland.
It was not until this hearing, during the course of his cross-examination, when he was asking what was the comment and what did it relate to (so that he could respond to questions) that it was put to him that the comment arose from what had happened during a conflict resolution course – he was considered to be overenthusiastic in relation to the use of handcuffs. It was clear from his reaction in the witness box to this suggestion, that the claimant did not accept that he had ever performed on the training course in such a way as to provoke such an adverse reaction. Indeed, not having ever been informed of this comment previously, some eight years later, it was not surprising that he was not in the position to categorically deny that he had behaved in this manner. In addition, in seeking to challenge that he had acted, as alleged, he challenged how a trainer could be sure who had performed in this way, when the trainers were not known to the claimant and the candidates were not wearing identification badges – which Superintendent Middlemiss did not dispute. Superintendent Middlemiss was extremely vague about the comment. He did not remember who said it; how he came to be told; but believed it was by one of the training inspectors, who had heard it from one of the trainers. None of the trainers were called to give evidence. He concluded, during the course of his evidence, that it was probably said to him by Inspector Douglas. Inspector Douglas also did not give evidence. Given the importance of this alleged adverse comment, to the selection of the claimant, as replied upon by the respondents, the Tribunal would have expected evidence would have been given by Inspector Douglas and/or the trainer who said it and/or who saw the incident upon 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 [1975] 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 for 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. The absence of any record of the alleged comment compounded the above failure. The Tribunal came to the conclusion, in light of the foregoing, that evidence from the trainers and/or Inspector Douglas would not have supported Superintendent Middlemiss' evidence to the Tribunal.
In his later witness statement, which he also relied upon as part of his evidence-in-chief, the second-named respondent made reference to specific details of complaints by the public against the claimant, which related to complaints of assault and incivility. At the time of the selection, however, he did not know or enquire, on his own admission, about the details of same. In any event, it was also accepted they were details of allegations not complaints. In the circumstances, the Tribunal did not consider these details, obtained subsequently, were of relevance or assistance in relation to the determination of this complaint, since they were not known of or relied upon by Superintendent Middlemiss at the time. However, it was apparent that no such enquiries were made of the named comparators. The comparators could also have had allegations/complaints by the public, regardless of how they had performed at training. Superintendent Middlemiss maintained that, as no adverse comments were made about the named comparators, unlike the claimant, he did not require to make any such enquiries.
In the circumstances, the Tribunal, in the absence of any relevant records or details of the alleged adverse comment and the failure to give such details until the hearing, as set out above, or to call any evidence by those who were alleged to have made the alleged comment or to have seen the claimant perform in the manner described (see Lynch v MOD above), the Tribunal concluded that it was not satisfied that any such adverse comment was ever made about the claimant. In the absence of any such comment, there was therefore no basis, in the Tribunal's view, for making the said enquiries about the claimant – which enquiries were made of no one else.
As set out, in relation to the claimant's claim of sex discrimination, those bare facts were not sufficient to shift the burden of proof. In consideration of this claim of unlawful discrimination on the grounds of religious belief and whether the less favourable treatment relied upon could be on the grounds of religious belief, the Tribunal was, at all times, aware that of the eight originally selected for the reserve list – four were Protestant, three were Catholic (ie including the claimant) and one was 'other'. However, this was in the context of a selection from 57 Protestants, 7 Catholics and 7 'others', in circumstances where originally 83 Protestants, 12 Catholics and 11 'others' had applied for the said deployment. The Tribunal also recalled that Superintendent Middlemiss had Catholic members in his family and had not previous known the claimant. Such facts were not conclusive or determinative in persuading the Tribunal that the burden had not shifted, when applying the first stage of the Igen test; and, in particular, in the light of the matters set out in the following sub-paragraphs of this decision. Constable R and B were Protestant and the claimant was Catholic.
In these circumstances, the Tribunal concluded that the claimant had established facts, as set out above, from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondents had committed an act of discrimination against the claimant on the grounds of religious belief.
To discharge the burden it was necessary for the respondents to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the ground of religion since no discrimination is compatible with the burden of proof directive. Since the facts necessary to prove an explanation would normally be in the possession of the respondents, a Tribunal normally expects cogent evidence to discharge the burden of proof (Igen).
Significantly, neither Constables R or B or indeed any other candidate, apart from the claimant, had enquiries made of him at Personnel Department in relation to any complaints made by the public. Superintendent Middlemiss' explanation for making the enquiry was to see if the result of the enquiry would either negate or confirm his concerns about the claimant's suitability, which had been raised by the alleged adverse comment. If the adverse comment had been made and was therefore able to be relied upon in this selection exercise, the Tribunal could have seen some basis for making such an enquiry in order to see how the adverse comment could be judged and the weight attached to it. Since the Tribunal did not accept that the adverse comment was ever made, then any reliance upon the comment did not, in the Tribunal's view, provide any explanation for the making of any such enquiry.
Chairman:
Date and place of hearing: 8 – 12 October 2007;
15 – 19 October 2007;
30 – 31 October 2007;
15 – 16 November 2007; and
13 December 2007, Belfast
Date decision recorded in register and issued to parties: