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Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> McMahon v Northern Ireland Policing Boar... Northern Ireland Policing Boar... [2013] NIFET 00086_12FET (31 October 2013)
URL: http://www.bailii.org/nie/cases/NIFET/2013/86_12FET.html
Cite as: [2013] NIFET 00086_12FET, [2013] NIFET 86_12FET
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FAIR EMPLOYMENT TRIBUNAL
CASE REF: 1398/12
86/12FET
CLAIMANT: Mairaid Catherine McMahon
RESPONDENT: Northern Ireland Policing Board
DECISION
The unanimous decision of the Tribunal is that it has jurisdiction to hear the claimant’s claims of unlawful direct discrimination on the grounds of religious belief, sex and age, which are dismissed.
Constitution of Tribunal:
Chairman: Mr S A Crothers
Members: Mr E Millar
Mrs S Doran
Appearances:
The claimant appeared in person and represented herself.
The respondent was represented by Ms N Murnaghan, Barrister-at-Law, instructed by the Crown Solicitors Office.
The Claim
1. The claimant claimed that the Tribunal had jurisdiction to adjudicate on her claims relating to unlawful religious discrimination, unlawful sex discrimination, and unlawful age discrimination and that she had been discriminated against on these grounds. The respondent maintained that the Tribunal had no jurisdiction to consider her claims, as set out in the legislative provisions below and, in any event, denied her claims of unlawful discrimination in their entirety.
Issues before the Tribunal
2. The agreed legal and factual issues were as follows:-
Legal Issues
(1) Does the Tribunal have jurisdiction to adjudicate on the complaint of religious discrimination under the Fair Employment and Treatment (Northern Ireland) Order 1998?
(2) Does the Tribunal have jurisdiction to adjudicate on the complaint of sex discrimination under the Sex Discrimination (Northern Ireland) Order 1976, as amended?
(3) Does the Tribunal have jurisdiction to adjudicate on the complaint of age discrimination under the Employment Equality (Age) Regulations (Northern Ireland) 2006?
(4) Was the claimant discriminated against on the basis of her sex?
(5) Was the claimant discriminated against on the basis of her age?
(6) Was the claimant discriminated against on the basis of her perceived religious beliefs?
(7) Is appointment to the PCSP employment or a public appointment?
(8) Was the respondent’s statutory duty to ensure that all PCSP panels were representative of the district absolute, or only as far as is practicable?
(9) Did the respondent act unlawfully by failing to convene an appropriate panel to make the appointment decisions and by failing to ensure that the decisions made by that panel were reflective of the area?
(10) Did the respondent act unlawfully by failing to appoint a representative PCSP?
(11) Is there any statutory duty on the respondent in respect of the composition of appointment panels for PCSP?
(12) Is there a statutory duty on the respondent to appoint a representative PCSP?
(13) Was the decision of the panel taken or ratified by a Minister of the Crown, a Northern Ireland Minister, the Assembly or a government department?
Factual Issues
(14) Is an independent appointee to the PCSP entitled to remuneration in respect of this post?
(15) Does the remuneration for independent members of the PCSP comprise expenses incurred in carrying out the functions of the post?
(16) Did the respondent fail to act within the spirit of the legislation, and if so, was that discriminatory on proscribed grounds?
(17) Who are the claimant’s chosen comparators?
(18) Why did the respondent fail to appoint the claimant to Fermanagh PCSP?
(19) Did the respondent have statutory authority to take into account information on candidate application forms relating to their skills and experience as opposed to equality information to ensure representativeness?
(20) What was the role of the Department of Justice at each stage of the process?
Indirect Discrimination
The agreed issues do not contain a claim for indirect discrimination, and such a claim was never specifically intimated to the respondent prior to the hearing. Furthermore, the claimant did not make an application to amend her claim to include indirect discrimination. The legal issues must therefore be considered within the framework of direct discrimination claims.
Sources of Evidence
3. The Tribunal heard evidence from the claimant and, on behalf of the respondent, from Amanda Stewart, the respondent’s Director of Partnerships, Jonathan Craig, DUP MLA for Lagan Valley, and a political member of the respondent from 1 June 2011, Gwen Savage, impartial assessor for the respondent from January 2012, and Nichola Creagh, Grade A Civil Servant in the Department of Justice (“DOJ”), and the DOJ PCSP Project Manager.
The Tribunal was presented with witness statements and bundles of documents and took into account only the documentation referred to in the course of the hearing.
Jurisdiction
4. (1) The claimant applied to become an independent member of Fermanagh Policing Community Safety Partnership (“PCSP”) in January 2012. She was interviewed by Fermanagh Council at Stage 1 of the process on 28 February 2012. A verification procedure was completed on 30 March 2012 and Stage 2 of the process was conducted by the respondent on 19 April 2012.
(2) PCSPs were established under the Justice Act (Northern Ireland) 2011 (“the Act”). PCSPs brought together the functions and responsibilities previously undertaken by District Policing Partnerships and Community Safety Partnerships. There are 26 PCSPs, one for each Council area in Northern Ireland. They are jointly funded by DOJ and the respondent, which is responsible for the appointment of independent members. Separate arrangements exist for Belfast.
(3) Under the heading of ‘Expenses’ paragraph 17 of Schedule 1 to the Act provides that:-
“The Council may pay members of a PCSP such expenses as the Council may determine”.
(4) The terms of appointment for an independent member include the following:-
“2. Meeting Expenses:
Membership of a PCSP/DPCSP is similar to a ‘public appointment’ and is not classed as employment. All members of the PCSP and DPCSP would be eligible to claim an expense payment of £60 for each meeting or event associated with the PCSP/DPCSP up to a maximum of 20 meetings/events per year. Councils have the discretion to provide funding for any additional meetings. Payment is intended to cover reasonable out-of-pocket expenses related to PCSP/DPCSP duties.
3. Travel:
In addition, travel expenses can be claimed. This will be paid in line with Local Government rates and conditions and will be based on actual expenditure.
4. Tax and Benefits:
Payments will be taxable. The payment is unlikely to impact on benefit, however, members may wish to seek advice from the appropriate agency.
5. Time Commitment
The number of meetings/events held by each PCSP/DPCSP will vary depending on local need and members should make every effort to be flexible and attend as many meetings and events as possible.
Engagement with the local community is a key part of independent membership and as such, members will be expected to fully participate in such engagement. Members will also be expected to attend events and briefings organised by the PCSP or the Policing Board and Department of Justice”.
(5) The financial guidelines on PCSPs make clear that claims for meeting expenses are non-receipts based, and that they are taxable and to be paid through the Council’s payroll system. The guidelines also refer to some expense payments attracting employers National Insurance. It is also the responsibility of each individual to advise HMRC of payments received.
(6) A £60 payment is made following attendance at a monthly PCSP meeting. According to the respondent’s evidence, such a payment requires attendance at PCSP meetings. In the event of expenses having risen and the member being unable to attend such a meeting, a joint committee could meet and exercise discretion, in exceptional circumstances, so as to provide for payment of expenses to the individual concerned. The respondent’s case was that the £60 payment is designed to offset general expenses including costs such as use of personal phones/computers/printing/postage and the care of dependants. The respondent maintained that such attendance at PCSP meetings is not to be regarded as work and the £60 payment is not to be regarded as remuneration for work. The term used by the respondent was that the attendance at the monthly meetings was used as a “proxy indicator” of PCSP based activities during that month that were likely to have resulted in expenses being incurred. Furthermore, a non-receipts based system facilitated a straightforward administration process. The claimant, on the other hand, contended that the £60 payment was payment for work and that an independent member could be regarded as an employee given the reference in the terms of appointment to taxation and national insurance. Alternatively, she contended that such a member was an office holder entitled to remuneration. Travel expenses are paid separately from the £60 payment.
(7) Historically, it had proved difficult to ensure the attendance of members at monthly meetings, under the arrangements preceding the establishment of PCSPs. The Tribunal is satisfied that the £60 payment was a way of encouraging members to attend these meetings, otherwise, in effect, the member forfeited any expenses incurred. It was acknowledged on behalf of the respondent during closing submissions, that in the event of no expenses having been incurred, the £60 payment would still be made following attendance at the monthly meeting. The £60 payment did not, therefore, necessarily depend on expenses having been incurred. A £60 payment could also have been made irrespective of the amount of expenses incurred in the exceptional circumstances referred to in the preceding paragraph.
(8) In relation to the holder of an office or post, Article 13A of the Sex Discrimination (Northern Ireland) Order 1976 (“the 1976 Order”), Article 20A of the Fair Employment and Treatment (Northern Ireland) Order 1998 (as amended), (“FETO”), and Regulation 13 of the Employment, Equality (Age) Regulations (Northern Ireland) 2006 (“the Regulations”), provide that the claimant will not come within the scope of the relevant legislation, and therefore within the jurisdiction of the Tribunal, should an independent member not be entitled to remuneration. The 1976 Order, the FETO, and the Regulations, all provide that an Office Holder is not to be regarded as entitled to remuneration merely because he is entitled to payments “in respect of expenses incurred by him in carrying out the functions of the office or post …”.
(9) The Tribunal is satisfied that the respondent was exclusively responsible for the appointments at Stage 2 of the process, and that independent members of the PCSPs are properly designated as office holders and not as employees.
(10) Under the definition of wages in Article 59 of the Employment Rights (Northern Ireland) Order 1996, “any payment in respect of expenses incurred by the worker in carrying out his employment”, is excluded from the definition. In the case of London Borough of Southwark v O’Brien (1996) IRLR 420, the Employment Appeal Tribunal heard an appeal from an employer relating to mileage allowance. One of the grounds upon which the employers contested that the refusal to pay mileage allowance was not an unlawful deduction from the employee’s wages was that the allowance was a payment in respect of expenses incurred by the worker in carrying out his employment, and therefore was excluded from the definition of wages. In paragraphs 26 and 27 of his judgement, Mr Justice Mummery states as follows:-
“We agree with Morrison J that, in a case such as this, a finding has to be made that the deduction is either wholly in respect of wages or wholly in respect of expenses.
What it is in each case is a matter of fact and degree. Our conclusion in this case is that a payment of a mileage allowance does not cease to be “in respect of” expenses because it is found to be generous. The errors of law by the chairman are to equate payments “in respect of “ expenses with “payments of expenses” and to treat generous expenses wholly as remuneration. Both conclusions are, in our view, wrong as a matter of law”.
(11) Commenting on the O’Brien case, Harvey on Industrial Relations and Employment Law at Section B1 paragraph 350.02 states:-
“In relation to expenses, a payment in excess of actual expenditure incurred does not cease to be in respect of expenses merely because it is found to be generous. The assessment whether a payment is by way of wages or expenses is one of fact and degree, not one in which an apportionment as between wages and expenses is possible”.
Conclusion
(12) The Tribunal unanimously concludes on the evidence before it, as a matter of fact and degree, and on the balance of probabilities, that the £60 payment is remuneration and not a payment in respect of expenses, and therefore the tribunal has jurisdiction to consider the remaining issues in the case.
Remaining Issues
5. Having considered the evidence insofar as same related to the remaining issues before it, the Tribunal made the following findings of fact on the balance of probabilities:-
(i) The claimant, who impressed the tribunal as being an articulate and intelligent witness, applied to be an independent member of Fermanagh PCSP in January 2012. The claimant is female, a member of the Catholic Community, and was aged 29 at the date of her application. She was interviewed at Stage 1 on 28 February 2012 and was ranked as the highest candidate in merit order, having scored 43 out of a possible 50 points.
(ii) Stages 1 and 2 of the process are described in Chapter 3 of the PCSP Code of Practice (“the Code”) as follows:-
“Ensuring Best Practice
Merit
25. The selection of nominated candidates by the District Council as appointable is based on merit. Applicants will be assessed to ensure that their abilities, experience and qualities match the needs of the PCSPs and DPCSPs. The process to appoint independent members to a PCSP or DPCSP consists of two stages. The first stage, undertaken by the Council and facilitated as the Policing Board deem appropriate, is based solely on merit and is designed to identify those candidates who are deemed suitable to be considered for appointment. The second stage is governed by legislation which requires the Policing Board in appointing candidates to, so far as practicable, secure that the membership of each PCSP and DPCSP (both political and independent members taken together) is representative of the Council area or police area command concerned”.
(iii) A verification process was held on 30 March 2012, in advance of the Stage 2 Panel Meeting held on 19 April 2012. The Tribunal is satisfied that matters considered during the verification procedure did not influence and were not considered by the Stage 2 panel.
(iv) Paragraph 4 of Schedule 1 to the Act, relating to independent members, provides as follows:-
“4. – (1) The number of independent members shall be one less than the number of political members.
(2) Appointments of independent members shall be made by the Policing Board from among persons nominated by the council in accordance with paragraph 5.
(3) In appointing independent members the Policing Board shall so far as practicable secure that the members of the PCSP (taken together) are representative of the community in the district.”
Furthermore, paragraphs 5 and 6 of Schedule 1 to the Act provide as follows:-
“5. – (1) Where appointments are to be made of independent members, the council shall nominate persons willing to be candidates for appointment.
(2) Unless otherwise agreed with the Policing Board, the number of persons to be nominated under sub-paragraph (1) on any occasion shall be twice the number of appointments to be made of independent members.
(3) The council shall notify the Policing Board of–
(a) the name of each person nominated by it under sub-paragraph (1); and
(b) such other information regarding those persons as it considers appropriate.
(4) A person shall not be nominated under sub-paragraph (1) if that person–
(a) is disqualified for membership of the PCSP; or
(b) has not made a declaration against terrorism.
(5) Where the number of persons nominated by the council is less than twice the number of appointments to be made, the Policing Board may itself nominate such number of candidates as, when added to the number nominated by the council, equals twice the number of appointments to be made.
6. – (1) In exercising functions under paragraphs 4 and 5, a council and the Policing Board shall have regard to any code of practice under this paragraph.
(2) The Department may issue, and from time to time revise, a code of practice containing guidance as to the exercise by councils and the Policing Board of their functions under paragraphs 4 and 5.
(3) Before issuing, or revising, a code of practice under this paragraph, the Department shall consult -
(a) the Policing Board;
(b) district councils; and
(c) the Equality Commission for Northern Ireland.
(4) The Department shall arrange for any code of practice issued or revised under this paragraph to be published in such manner as appears to the Department to be appropriate.”
(v) Chapter 3 of the Code entitled “Selection and Appointment of Independent Members,” dated December 2011 states, inter-alia:-
“35. Selection on merit of candidates to be considered for appointment will remain the responsibility of individual Councils. Appointments will be made in accordance with the requirements outlined in the role description and person specification. However, criteria for final selection and subsequent appointment will take account of the need to include a balance of skills and backgrounds, and will meet the statutory requirement to ensure that the overall membership is as representative as possible of the local community.
Probity
36. Adherence to high standards of probity and propriety in the appointment process will ensure public confidence in it. Those making the appointments should endeavour to ensure that appointees are committed to, and capable of carrying out, their duties in line with the principles and values of public service, as defined by the first report of the House of Commons Committee on Standards in Public Life. These are: selflessness, integrity, objectivity, accountability, openness, honesty and leadership.
Appointments – the Policing Board’s Role
71. The Policing Board’s Chief Executive has responsibility for establishing final appointment panels to consider the lists supplied to the Policing Board by the Councils under Paragraph 5 of Schedule 1 and Paragraph 5 of Schedule 2 to the Justice Act.
72. The responsibility for making appointments rests with the Policing Board by virtue of paragraph 4 of Schedule 1 and paragraph 4 of Schedule 2 to the Justice Act.
73. The Policing Board’s panel or panels should comprise at least two Policing Board members and an independent member appointed by the Policing Board. The Impartial Assessor appointed to oversee the appointment process should ensure that the panel is representative in terms of gender and community background so far as practicable.
74. It is not expected that the Board’s panel will conduct interviews. However, should the Board decide to do so, it will need to ensure that all candidates are treated in a consistent way. Interviews should be carried out in line with the guidance on public appointments issued by the Commissioner for Public Appointments.
75. Schedule 1, paragraph 4 (3), and schedule 2, paragraph 4 (2) of the Justice Act emphasise that the Policing Board should aim to ensure that each PCSP/DPCSP as a whole is “representative of the community in the district”. Therefore the Board’s panel has a particular statutory duty to ensure that the candidates are appointable, and that the full membership of the PCSP is so far as practicable representative of the community in the Council area. In doing so, the Board’s panel will wish to reflect on the composition of the Council members appointed to the PCSP or DPCSP. The Board will wish to consider the balance of skills, experience and backgrounds of independent members in the context of community confidence in the Partnership.
76. The Board will also need to consider potential conflicts of interest declared on the application form, and come to a view as to the extent to which these could cast doubt on the public’s confidence in the applicant’s ability to fulfil his/her duties as a member of the PCSP or DPCSP.
77. In a similar vein, the Board may also want to consider the appropriateness of politicians being appointed as independent members. Councillors, MLAs and MPs are not excluded by law from applying for independent membership of PCSPs or DPCSPs. However, their political affiliation or activities would be likely to lead the Board to conclude that they would not be viewed as sufficiently independent and would therefore be unsuitable for appointment. The Board will need to reach a conclusion on each such applicant in the round, taking account, among other things, of the overall skill mix and representativeness of the PCSP or DPCSP.
Disqualification because of prior criminal convictions
78. The Policing Board panel will also need to consider if a candidate is disqualified or otherwise unsuitable because of prior criminal convictions.
79. The Policing Board will therefore write to the Chief Constable to ask for confirmation of the criminal records declared by all applicants who have reached the appointment pool. If a candidate has a prison record and five years have not elapsed since he/she was released either on remission or on license he/she is automatically disqualified from membership of a PCSP or a DPCSP and the application should be immediately rejected. This applicant should be told that this is the reason for his/her disqualification.”
(vi) In accordance with the Code, a list of equally appointable candidates to serve as independent members of the PCSP was forwarded by Fermanagh District Council to the respondent together with a breakdown of their characteristics according to the categories listed in Section 75(1) of the Northern Ireland Act 1998. This breakdown was intended to enable the respondent to fulfil its duty under Paragraph 4(3) of Schedule 1 and Paragraph 4(2) of Schedule 2 to the Act ie to secure so far as is practicable that the membership of the PCSP is representative of the community in the district concerned.
(vii) Paragraph 73 of the Code states that the Impartial Assessor appointed to oversee the appointment process should ensure that the panel (at Stage 2) is representative in terms of gender and community background so far as practicable. The panel should comprise at least two Policing Board members and an independent member appointed by the Policing Board. The claimant contended that the panel, comprising Jonathan Craig DUP MLA, Trevor Lunn, and Alan Henry as the independent panel member, was not representative. The respondent contended that, in the particular circumstances, the constitution of the panel was appropriate.
(viii) The process to appoint independent members to PCSPs was undertaken by DOJ towards the end of 2011. The Code was produced in December 2011 and a large and complicated recruitment exercise involving 60 separate selection and appointment panels for Stages 1 and 2, was commenced across 26 Council areas involving 232 positions to be filled out of a pool of around 600 applicants, with the aim of having PCSPs established in April 2012. The Tribunal is satisfied that all females on the list of assessors were contacted regarding their availability on 19 April 2012, but none was available. However, Alan Henry was the first independent member available to sit on the panel and, given the difficulties experienced by the respondent’s staff in obtaining independent members from the list of 19 assessors, he was duly selected. Gwen Savage, who was appointed by the respondent in January 2012 to act as an impartial assessor, brought to Amanda Stewart’s attention that the panel was not representative. She also raised the issue with the chairman of the panel, Jonathan Craig, and, after considerable discussion, it was agreed that the process should continue. Amanda Stewart was also content to allow the panel meeting to continue with Gwen Savage observing the panel to assess its openness, transparency, probity and effectiveness and to ensure compliance with the Code. Gwen Savage did not have any involvement in the decision making process but could have intervened, if necessary, in relation to any concerns regarding the process.
(ix) The panel members were provided with a copy of Paragraphs 2.2 and 2.3 of each candidate’s application form which had an individual reference number. The claimant referred to all 9 successful appointees as comparators. However, she referred to the specific example of Mr Magee, a Catholic aged 73, (reference 0051) and the paucity of information in Paragraph 2.3 of his application form which reads:-
“Local Policing and/or Community Safety
You must be able to demonstrate an interest and understanding of your community, local policing and/or community safety.
Please describe how you have taken an active interest in your community, or local policing, of community safety issues, including details of organisations you have been involved with, what your role was and relevant dates”.
The claimant specifically referred to what Mr Magee stated in paragraph 2.3, ie
“as chair and vice chair for many years of Enniskillen Community Forum”,
and
contrasted this with her own detailed wording in Paragraph 2.3 of her
application form. However the panel also considered the information provided
by Mr Magee in Paragraph 2.2 of his application which reads:-
“Consultations
You must be able to engage effectively with communities to develop an understanding of their issues or concerns – eg by membership of a constituted community group/forum, Residents Association, Neighbourhood Watch Scheme etc
Please describe how you have developed and maintained relationships within the community to help address their issues and concerns”.
Under this heading Mr Magee referred to being part of a neighbourhood watch team for over 150 houses and being chairperson of Drumgallan Area Community Association in relation to 5 local estates. In addition he attended all local meetings in public of the District Policing Partnership. The panel therefore considered Mr Magee’s community involvement by combining the information in Paragraphs 2.2 and 2.3 of his application form, and not just paragraph 2.3 on which the claimant seemed to focus.
(x) The Stage 2 panel had information on each candidate’s home town/village together with details of age, gender, community background, martial status, race, sexual orientation, occupation, dependents (if any), any declared disability, any declared political activity, and any convictions. Conflicts of interest were also considered.
(xi) The panel did not have access to any scoring sheets of individual candidates from Stage 1. Nevertheless, the claimant maintained that at Stage 2 the panel had also considered the merit of the candidates in assessing the balance of skills, experience and backgrounds of independent members in the context of community confidence in the partnership. She also contended that the panels’ appointments were not representative as regards community background, sex or age and that she had been unlawfully discriminated against on the grounds of religious belief, sex, and age. Of the 15 equally appointable candidates listed in alphabetical order five were Roman Catholics (three women and two men), seven were Protestant (five women and two men), and three were other or of no religion (one woman, two men). It was not disputed that in order to achieve a representative PCSP the respondent would have had to appoint six Roman Catholics, three Protestants, seven women and two men.
(xii) The Act provides the respondent with a statutory duty to ensure, as far as practicable, that the PCSP is representative of the community in the Council area. However, far from being a “tick box” exercise to reflect representativeness, the Act also obliges the panel to have regard to the Code in achieving a balance of the skills, experience and backgrounds of independent members in the Partnerships. The Tribunal accepts, that in reconciling the statutory duty to achieve representativeness with the Code’s provisions to achieve balance, the statutory obligation should take precedence. Furthermore, where the number of appointable candidates so allow, the discretion and judgement exercised by the Stage 2 Panel can be used to distinguish between equally representative candidates.
(xiii) In the circumstances in which the Stage 2 Panel found itself, a precise balance to reflect the community in the Fermanagh District Council was not possible as only five Catholic candidates were deemed appointable at Stage 1 of the process. The Tribunal is satisfied that discussions on the skills and experience of candidates did not take place until agreement was reached on the achievement of community representativeness. Ultimately, having considered the representativeness aspect, the panel decided to appoint three Catholics, four Protestants and two others as being reasonably representative of the Fermanagh District. In doing so, the panel members exercised their discretion and judgement to appoint candidates who had the skills, experience and background to make a valuable contribution to the work of the PCSP.
(xiv) According to the respondent’s evidence in chief, no weighting or scoring was given to the information in Paragraphs 2.2 and 2.3 of the candidates’ application forms. However, as the Impartial Assessor, Gwen Savage acknowledged under cross examination, albeit on what she described as a ‘pedantic’ basis, that a weighting was applied at Stage 2 in assessing such information. This, however, did not constitute an assessment of merit in the usual sense attaching to a recruitment/appointment exercise. Jonathan Craig repeatedly referred to the subjectivity exercised by the Stage 2 panel, in the context of considering paragraphs 2.2 and 2.3 of the application forms. However, the unusual process for making PCSP appointments in reality permits the panel to exercise subjective judgments at Stage 2 in the absence of any formal weighting or scoring, or access to the scoring from Stage 1.
(xv) As regards the issue of gender, 9 of the 15 appointable candidates were women. To reflect the balance within Fermanagh District Council, the respondent would have been required to appoint seven women and two men. In the event, the Stage 2 panel appointed five women and four men which, again, the respondent viewed as a reasonable reflection of the gender balance in the Fermanagh District. None of the nine candidates appointed was under 40 years old.
(xvi) The claimant felt strongly that she should have been appointed to the PCSP at Stage 2. However, the notes of the Stage 2 panel meeting reveal, that based on paragraphs 2.2 and 2.3 of the claimant’s application form, her level of community involvement was “slightly weak. More in official work capacity”, and “light” in comparison to other candidates. The Tribunal has no reason to doubt that it was open to the panel to arrive at this conclusion. It is also satisfied that the Stage 2 panel, faced with a strong pool of appointable candidates, favoured those candidates whose experience was gained locally and who had an active connection in the community and were therefore judged to have a greater connection with the Fermanagh Council area. The claimant was placed with others on a reserve list at Stage 2, but was not appointed to the PCSP at the end of the process. The Tribunal can appreciate the claimant’s disappointment in light of her highest score at Stage 1. However, Stage 2 was conducted by the respondent on an entirely different basis from Stage 1 and without further interview.
(xvii) The claimant exercised her right to complain to the Independent Complaints Monitor, Delia Van Der Landen. Having concluded earlier in her report that it would have been practicable in the sense of being “capable of being done” or “feasible”, without reference to any inconveniences that may ensue, to have achieved gender balance on the appointments panel (a view with which the respondent disagreed), she then concludes her report, dated 17 July 2012, as follows:-
“Conclusion
To achieve a balance on the Fermanagh PCSP that accurately reflected the community in the District in terms of religious background the NIPB would have needed to appoint 6 Catholic and 3 Protestant Independent Members. This precise balance was never practicable given that only 5 Catholic candidates were deemed appointable at Stage 1 of the process. Given the complexity of balancing community background, gender, skills and background the judgement of the Independent Complaints Monitor is that the balance in terms of the community background of those appointed (ie 3 Catholics, 4 Protestants, 2 other) is reasonably representative of the Fermanagh District.
On the issue of gender of the 15 appointable candidates 10 were women and 5 men. To reflect the balance of the District the NIPB would have required to appoint 7 women and 2 men. In the event the appointments included 5 women and 4 men. Given the complexities of the balances to be achieved and the limitations in terms of the overall number of appointments available the view of the Independent Complaints Monitor is that, while short of the ideal, this is a reasonable reflection of the gender balance in the Fermanagh District”.
The Law
6. (1) The Tribunal considered, insofar as relevant, Articles 3, 8, 13A, 13B and 63A of the 1976 Order, Articles 2(3), 3, 20A, 38A, and 39 of FETO, and Regulations 3, 7, 30 and 42 of the Regulations.
Burden of Proof
7. (i) In Igen Ltd (formerly Leeds Carers Guidance) and Others v Wong, Chamberlains Solicitors and Another v Emokpae; and Brunel University v Webster [2006] IRLR 258, the Court of Appeal in England and Wales set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race and disability discrimination. This guidance is now set out at Annex to the judgment in the Igen case. The guidance is not reproduced but has been taken fully into account, as it also applies to cases of discrimination on the grounds of religious belief and age.
(ii) The Tribunal also considered the following authorities, McDonagh and Others v Hamilton Thom Trading As The Royal Hotel, Dungannon [2007] NICA, Madarassy v Nomura International Plc [2007] IRLR 246 (“Madarassy”), Laing v Manchester City Council [2006] IRLR 748 and Mohmed v West Coast Trains Ltd [2006] UK EAT 0682053008. It is clear from these authorities that in deciding whether a claimant has proved facts from which the Tribunal could conclude in the absence of an adequate explanation that discrimination had occurred, the Tribunal must consider evidence adduced by both the claimant and the respondent, putting to the one side the employer’s explanation for the treatment. As Lord Justice Mummery stated in Madarassy at paragraphs 56 and 57:-
“The Court in Igen v Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the Tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.
“Could conclude” in s.63A(2) must mean that “a reasonable Tribunal could properly conclude” from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory “absence of an adequate explanation” at this stage…, the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by s.5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment.”
(iii) The Tribunal received valuable assistance from Mr Justice Elias’ judgement in the case of London Borough of Islington v Ladele and Liberty (EAT) [2009] IRLR 154, at paragraphs 40 and 41. These paragraphs are set out in full to give the full context of this part of his judgement.
“Whilst the basic principles are not difficult to state, there has been extensive case law seeking to assist Tribunals in determining whether direct discrimination has occurred. The following propositions with respect to the concept of direct discrimination, potentially relevant to this case, seem to us to be justified by the authorities:
(1) In every case the Tribunal has to determine the reason why the claimant was treated as he was. As Lord Nicholls put it in Nagarajan v London Regional Transport [1999] IRLR 572, 575 – ‘this is the crucial question’. He also observed that in most cases this will call for some consideration of the mental processes (conscious or sub-conscious) of the alleged discriminator.
(2) If the Tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more than trivial: see the observations of Lord Nicholls in Nagarajan (p.576) as explained by Peter Gibson LJ in Igen v Wong [2005] IRLR 258, paragraph 37.
(3) As the courts have regularly recognised, direct evidence of discrimination is rare and Tribunals frequently have to infer discrimination from all the material facts. The courts have adopted the two-stage test which reflects the requirements of the Burden of Proof Directive (97/80/EEC). These are set out in Igen v Wong. That case sets out guidelines in considerable detail, touching on numerous peripheral issues. Whilst accurate, the formulation there adopted perhaps suggests that the exercise is more complex than it really is. The essential guidelines can be simply stated and in truth do no more than reflect the common sense way in which courts would naturally approach an issue of proof of this nature. The first stage places a burden on the claimant to establish a prima facie case of discrimination:-
‘Where the applicant has proved facts from which inferences could be drawn that the employer has treated the applicant less favourably [on the prohibited ground], then the burden of proof moves to the employer.’
If the claimant proves such facts then the second stage is engaged. At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground. If he fails to establish that, the Tribunal must find that there is discrimination. (The English law in existence prior to the Burden of Proof Directive reflected these principles save that it laid down that where the prima facie case of discrimination was established it was open to a Tribunal to infer that there was discrimination if the employer did not provide a satisfactory non-discriminatory explanation, whereas the Directive requires that such an inference must be made in those circumstances: see the judgment of Neill LJ in the Court of Appeal in King v The Great Britain-China Centre [1991] IRLR 513.)
(4) The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employer has treated the claimant unreasonably. That is a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee. So the mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one. As Lord Browne-Wilkinson pointed out in Zafar v Glasgow City Council [1997] IRLR 229:-
‘it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee that he would have acted reasonably if he had been dealing with another in the same circumstances.’
Of course, in the circumstances of a particular case unreasonable treatment may be evidence of discrimination such as to engage stage two and call for an explanation: see the judgment of Peter Gibson LJ in Bahl v Law Society [2004] IRLR 799, paragraphs 100, 101 and if the employer fails to provide a non-discriminatory explanation for the unreasonable treatment, then the inference of discrimination must be drawn. As Peter Gibson LJ pointed out, the inference is then drawn not from the unreasonable treatment itself – or at least not simply from that fact – but from the failure to provide a non-discriminatory explanation for it. But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, that discharges the burden at the second stage, however unreasonable the treatment.
(5) It is not necessary in every case for a Tribunal to go through the two-stage procedure. In some cases it may be appropriate for the Tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test: see the decision of the Court of Appeal in Brown v Croydon LBC [2007] IRLR 259 paragraphs 28-39. The employee is not prejudiced by that approach because in effect the Tribunal is acting on the assumption that even if the first hurdle has been crossed by the employee, the case fails because the employer has provided a convincing non-discriminatory explanation for the less favourable treatment.
(6) It is incumbent on a Tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these relevant factors are: see the observations of Sedley LJ in Anya v University of Oxford [2001] IRLR 377 esp paragraph 10.”
(iv) The Tribunal also received considerable assistance from the judgment of Lord Justice Girvan in the Northern Ireland Court of Appeal decision in Stephen William Nelson v Newry and Mourne District Council [2009] NICA 24. Referring to the Madarassy decision (supra) he states at paragraph 24 of his judgment:-
“This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude in the absence of adequate explanation that the respondent has committed an act of discrimination. In Curley v Chief Constable [2009] NICA 8 Coghlin LJ emphasised the need for a Tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the Tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The Tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination”.
Submissions
8. The Tribunal carefully considered the written submissions submitted by the claimant and the respondent’s representatives which are annexed to this decision. It also carefully considered oral submissions made before it on 23 September 2013.
Conclusions
9. The Tribunal, having carefully considered the evidence together with the submissions and having applied the principles of law to the findings of fact, concludes as follows:-
(1) The Tribunal’s approach has to be informed by the need to stand back and focus on the issue of discrimination. It is not necessary in every case for a tribunal to go through the two stage burden of proof procedure. In some cases, it may be appropriate for the tribunal simply to focus on the reason given by the respondent and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absence the explanation, would have been capable of amounting to a prima facie case under Stage 1 of the Igen test. The claimant is not prejudiced by this approach because in effect the Tribunal is acting on the assumption that even if the first hurdle has been crossed by the employee, the case fails because the employer has provided a convincing non-discriminatory explanation for the less favourable treatment.
(2) The Tribunal is satisfied, in this case, that, as recorded in paragraph 5(xvi) of this decision, the Stage 2 panel, faced with a strong pool of appointable candidates, favoured candidates whose experience was gained locally, and who had an active connection in the community, and were therefore judged to have a greater connection with the Fermanagh Council area. The Stage 2 panel was entitled to approach the appointment process in this way by following the Code in considering the balance of skills, experience and backgrounds of independent members, in the context of community confidence in the partnership, having already addressed the issue of representativeness. The claimant’s level of community involvement and experience was assessed as being more through her official work capacity and therefore slightly weaker and light in comparison to the successful candidates, including Mr Magee, a Catholic male aged over 40, who was the only real comparator focussed on by the claimant in her evidence. The Tribunal is satisfied that the claimant’s non-appointment was for the foregoing reason and not on the grounds of religion, sex or age.
(3) Although independent members of the PCSP are entitled to remuneration as office holders and the Tribunal has jurisdiction to hear the claimant’s complaints, her claims must be dismissed. The Tribunal has considerable sympathy for the claimant given her performance at Stage 1 of the process which could not be reflected at Stage 2. Unlike Stage 1, Stage 2 was mainly a subjective exercise facilitated and permitted by the Act and the Code.
Chairman:
Date and place of hearing: 4-6 and 23 September 2013, Belfast.
Date decision recorded in register and issued to parties: