Industrial Tribunals Northern Ireland Decisions

 


INDUSTRIAL TRIBUNALS

CASE REF:3647/01

551/02

APPLICANT: Pauline Rankin

RESPONDENT: The Chief Constable Police Service of Northern Ireland

DECISION

The unanimous decision of the tribunal is that the applicant has not proved in either of her applications that she was unlawfully discriminated against on grounds of her sex under the provisions of the Sex Discrimination (Northern Ireland) Order 1976 and her applications are dismissed.

Appearances:

The applicant was represented by Ms Wilson Barrister-at-Law instructed by Reid Black Solicitors.

The respondent was represented by Ms Murnaghan Barrister-at-Law instructed by the Crown Solicitor.

The reasons for this decision are given in extended form, being an issue under the Sex Discrimination (Northern Ireland) Order.

1. In her originating application dated 6 November 2001, filed on 8 November 2001, the applicant alleged she had been discriminated against on grounds of her sex in relation to the allocation of overtime from March 2001. The respondent in an appearance dated 26 November 2001, filed on 27 November 2001, denied sex discrimination and submitted the applicant's complaint had not been presented within the time prescribed by Article 76 of the Sex Discrimination (Northern Ireland) Order 1976.
2. The respondent's counsel asked the tribunal to hear the time point as a preliminary issue. The applicant's counsel said that the applicant's case was that while the discrimination started in March 2001 it continued until November 2001. The tribunal indicated it would proceed with the full hearing.
3. The respondent's counsel also suggested the tribunal hear as a preliminary issue whether or not the applicant's medical classification at the relevant time precluded the respondent from giving her overtime. The tribunal took the view that it would be appropriate to hear the case in full before reaching a decision on this point.
4. In her second originating application dated 21 February 2002, filed on 25 February 2002, the applicant alleged she had been discriminated against on ground of her sex and victimised because of her earlier complaint of sex discrimination in that on 26 January 2002 she was informed she was being transferred to another station with effect from 31 January 2002. The respondent in appearance dated and filed on 12 March 2002 denied sex discrimination and victimisation.
5. By Order dated 6 June 2002 both the applicant's cases were to be considered and heard together.
6. The following facts were not in dispute:
7. 1 The applicant was born on 31 December 1958.
8. 2 She joined the Royal Ulster Constabulary in 1995 and from August 1997 she was a section constable at Antrim Road station performing the full range of uniform beat and patrol duties.
9. 3 At the relevant time there were 4 sections, A, B, C and D at the station. Each section had 10-15 regular and reserve constables, 1 sergeant and 1 inspector.
10. 4 There were 3 shifts of 8 hours each and 3 of the 4 sections worked one of the 3 shifts in the period of 24 hours while the fourth section was on rest. The shifts were:-

7.00 am - 3.00 pm known as early shift

3.00 pm - 11.00 pm known as late shift

11.00 pm - 7.00 am known as night shift.

11. 5 All section constables commenced 15 minutes before the start of the allocated shift. This period was for briefing by the section sergeant and was paid as overtime.
12. 6 Apart from the briefing overtime which all constables earned, there were two other ways in which overtime was obtained:

(a) Having to attend court and

(b) Extra hours of duty detailed to constables by the Operational Planning Unit (hereinafter called OPU).

This was usually worked as part of a 12 hour shift i.e., an extra 4 hours + 15 minutes briefing time involving either a continuation or earlier commencement of normal 8 hour shift.

An officer would check the computer regularly to see what his/her overtime duty was going to be. Overtime was mostly obligatory and only refused if another person was available.

13. 7 In April 2000 the applicant suffered a serious neck and back injury and was off work until September 2000. On her return she was restricted on the advice of the Occupation Health Unit (hereinafter called the OHU) to duties which did not involve a significant risk of confrontation. Subject to this there was no problem with her working the normal shift pattern.
14. 8 From her return in September 2000 she worked as a station duty officer (hereinafter called SDO) attached to B section. R/Con Ward was her assistant SDO.
15. 9 An SDO works in the station enquiry office answering telephone calls and dealing with members of the public, logging calls on computers, checking equipment and completing registers, preparing forms for other section members. SDO or assistant SDO was the only non-confrontational duty available. Other duties such as security at front gate, gaoler, mobile or beat duties would not be non-confrontational. Each section had an SDO and an assistant SDO.
16. Having heard the evidence of the applicant, Constable Thompson, Chief Inspector Robinson and Sergeant Browne and considered the documents produced, the tribunal found the following facts:
17. 1 OPU allots personnel for overtime on the basis of need. The section sergeant decided who does which duty. Some people tend to do the same duties e.g. SDO, security, gaoler whereas mobile duty rotates.
18. 2 Following her return to work the applicant was detailed to do overtime from late September 2000 as an SDO or assistant SDO. She would for example have worked her normal 8 hour shift as SDO in her own section and then 4 hours overtime with the next section as assistant SDO.
19. 3 A Force Order "Managing Attendance Policy" dated 8 February 2001 (hereinafter called "the Force Order") came into effect on that date. Section 11(1) of this provided:-

(1) The terms "Recuperative and Restricted Duties" will replace the former terms "Temporary and Permanent Restrictions".

(2) "Recuperative Duties" are defined as "temporary rehabilitative duties or working conditions approved to assist an officer's ultimate return to full duty following illness or injury, by permitting return to or continued work in a less demanding capacity".

(3) It will be the expectation that any officer placed on such duties will return to the full range of operational duties at the earliest opportunity.

(4) Officers will be placed on "Recuperative Duties" if they are deemed to be incapable of carrying out the full range of duties, due to a medical condition. A recommendation will be made to the Chief Superintendent Personnel, via the officer's supervisor, by one of the medical advisers. This will be for a maximum of 3 months, with the possibility of an extension of a further 3 months, at the discretion of the Chief Superintendent Personnel, following advice from the medical adviser, and will be reviewable on a 3 monthly basis. During this time every effort will be made to facilitate the officer's return to the full range of duties. At the end of 3 or 6 months, an officer incapable of returning to the full range of duties will be placed in the "Restricted Duties" category.

(5) Overtime must not be worked by officers on "Recuperative Duties" unless this has the explicit approval of line management and the medical adviser.

(6) "Restricted Duties" are defined as "duties or conditions approved for other than recuperative purposes to any officer unable to perform one or more aspects of full operational duty for a specific reason, where there is little likelihood of a return to full operational duties".

(7) Officers will be placed on "Restricted Duties" if they are likely to be subject to a permanent medical restriction. This will apply when:

(a) The officer has been on Recuperative Duties for 6 months and is not yet fit to resume the full range of duties or

(b) In the opinion of the medical adviser the officer will not be fit for the full range of duties in the foreseeable future. Such officers will be subject to regular review by the medical adviser to monitor any change in circumstances.

Prior to this Order there was apparently no restriction as to the amount of overtime allocated to those on a medical restriction. Also "temporary restricted duties" were commonly described as "light duties".

20. 4 Copies of the Force Order were issued to all departments, sections and to section sergeants. A copy was also in enquiry offices in a file with other force orders. It was much talked about when it came out.
21. 5 From March 2001 there was a marked decline in the applicant's overtime but not in the overtime of other members of her section. Con Ward for example did overtime mainly as an SDO or assistant SDO. The applicant's overtime, apart from briefing time and public holidays, consisted of 4 hours on 3 March 2001, 4 hours on 30 May 2001 and 4 hours on 7 June 2001. No clear explanation was offered as to how she received these. It was suggested her section sergeant may have given them because of a need.
22. 6 In June 2001 in preparation for the likely public disorder in the early part of July, when as many officers as possible would be required, it was decided to split the 24 hours into 2 x 12 hour shifts 7.00 am – 7.00 pm and 7.00 pm – 7.00 am with one third of the officers on the day shift and two thirds on the night shift. The purpose of this was to provide maximum cover during evening and night when trouble was most likely to occur. This was a change from previous years. It was also decided that officers on "recuperative" duties would be detailed overtime in the role in which they were capable of working with the proviso that if any of them felt unable to do the overtime they would be taken off it. Previously it was not possible to refuse overtime in July.
23. 7 The applicant was therefore detailed overtime in capacity of SDO in July 2001. Her overtime was mainly on night shift.
24. 8 On or about 22 June 2001 she telephoned Con Brian Thompson, who was from 26 February 2001 the officer in OPU responsible for detailing her overtime, to enquire why she was getting night duty overtime. She also enquired why she had not been getting her share of overtime prior to July and whether she would be getting it in August. Con Thompson told her she was not entitled to any overtime as she was on "light duties", that she was receiving overtime in July because everyone was required and would only receive it in August if her section was again put on 12 hour shifts. He did not specifically refer her to the Force Order.

She also spoke to Sgt Browne, Con Thompson's supervisor, who told her she did not have to do the overtime if she did not wish to do so. Sgt Browne recalled discussing "recuperative duties" with the applicant but was not sure whether or not she had referred to the Force Order. Applicant said she did not refer her to it.

25. 9 The applicant then raised the matter of her entitlement to overtime with Con Cahill of the Police Federation. He contacted Sgt Browne of OPU on her behalf within days i.e., towards the end of June. Sgt Browne referred him to the Force Order and pointed out that as the applicant was on "recuperative duties" she could not normally be given overtime. Sgt Browne's evidence was that he either suggested the applicant was not "recuperative" but "restricted" or that she thought she was. Unfortunately the tribunal did not have the benefit of Con Cahill's evidence to clarify this point or to indicate what advice he gave to the applicant.
26. 10 In August the applicant's section was again on 12 hour shifts but the applicant was not allocated any overtime on basis she was not needed to do overtime as an SDO whereas Con Ward was given overtime as an SDO. He could, if necessary, be pulled out to do other duties whereas the applicant could not. She was the only female in her section. She believed that male officers with a similar restriction to her were getting overtime and following a conversation at the end of August with Sgt Allen, medically restricted because of a back injury, who told her he was doing overtime that day, she reached the conclusion she was being treated differently because she was a female. She consulted with her federation representatives and decided to pursue a sex discrimination claim. No evidence was available from them as to what advice was given.
27. 11 The tribunal accepted the applicant's evidence that she was not aware of the Force Order or the difference between "restricted" and "recuperative" until she was told about it by one of the federation representatives in July/August, also that she believed she was "permanently restricted" as opposed to "temporarily restricted" or "recuperative".
28. 12 As far as OPU was concerned she was "recuperative" and therefore from the coming into effect of the Force Order could not be allocated overtime. The decision whether or not an officer was on recuperative or restricted duties was decided by the OHU who relayed the information to personnel, in this case Chief Inspector Robinson, who in turn informed the OPU.
29. 13 The applicant attended OHU:

(a) On 30 August 2000 after which Dr Crowther reported on 5 September 2000,

"She is currently on long term sick leave as a result of a neck problem which may well require surgery. She …… could probably return to duties without a significant risk of confrontation at the end of September if these were available. She would have no difficulty working the normal shift system. We are awaiting further scans and comments from the neurosurgeon but it likely she will have to remain on restricted duties until she recovers from her operation".

Received by personnel on 12 September 2000.

(b) On 12 April 2001 when Dr Watson reported on 13 April 2001,

"She has had her MRI scan however she is awaiting her neurosurgical appointment which I think is in June, therefore in view of the remarks dated 5 September 2000 from Dr Crowther, her duty should remain at present without confrontation. We would hope to review her after the neurosurgeons have commented on her possibility of having surgery".

Received by personnel on 23 April 2001.

Applicant was aware from June 2001 that neck surgery was not appropriate and without it her restriction was permanent. In her evidence she said she told her section sergeant and sergeant in OPU. She did not however go back to OHU or seek a referral.

(c) On 24 October 2001 after which Dr Crowther reported on 25 October 2001,

"Unfortunately the neurosurgeon feels that surgery would not be appropriate at the moment due to risks involved. Unfortunately Con Rankin will therefore have a vulnerable neck in situations of physical confrontation which would restrict her from duties involving this risk in the long term.

I note there has been a query with regards to her working overtime. From a medical point of view there would be no constraints to her working overtime if required. As previously stated she can work in the full shift system".

This latter report was apparently received by personnel on 2 November 2001.

30. 14 On 25 October 2001 Con White of Police Federation wrote to Chief Inspector Robinson on applicant's behalf. He made 3 points:-

(i) There was no indication in Dr Crowther's report of 5 September 2000 that restrictions should be placed on amount of overtime she could work.

(ii) That Force Order had not been properly applied to her in that she fell into 11(8)(b) as being an officer who in the opinion of the medical adviser will not be fit for the full range of duties in the foreseeable future.

(iii) Other officers on restricted duties had been regularly given more overtime than the applicant.

Chief Inspector Robinson sought the view of OHU whether the applicant was capable of working overtime and requested Inspector Weston to investigate the complaint and report. Inspector Weston confirmed that the applicant had been told by OPU that overtime availability would be unlikely for her due to the restriction in her working capacity. He also reported that no deliberate overtime constraints had been applied to officers on restricted duties but that it was normal to detail officers who could perform the full range of duties and that overtime worked by an officer on restricted duties was for a valid and necessary reason.

Following receipt of reports from OHU and Inspector Weston, Chief Inspector Robinson informed OPU that the applicant could be given overtime in capacity of SDO. In his response to Con White he said "Whilst Force Order Part 1, File Box B …. is silent on overtime for personnel on restricted duties, I nevertheless consider that it is always good practice to seek OHU opinion before such overtime is allocated. This I have done on this occasion. I can confirm that medical opinion does not prevent the member performing overtime. Operational Planning has been so informed".

There is confusion in the terminology used in this correspondence.

It is not clear from Chief Inspector Robinson's letter whether he is agreeing with Con White and the applicant that she was "restricted" or whether he is accepting that following receipt of the medical report on 25 October 2001 she is "restricted". The latter is more consistent with his evidence to the tribunal that he based his decision that applicant was "restricted" upon the report of 25 October 2001 but said he could understand the applicant's view prior to this that her restriction was permanent. He explained that he thought it was good practice to seek opinion from OHU to check persons on "restrictive" and for those on "recuperative" it was necessary. He accepted there was delay in getting medical evidence reviewing persons on "recuperative".

31. 15 In relation to the male officers who like the applicant were restricted in the duties they could do:-

(i) Con Speers was given no overtime in March 2001. He sought an interview with OHU and was classified as fully fit.

(ii) Con Chalmers was similar to the applicant in that on 6 February 2001 OHU said he was fit for duties limited to station complex and this was likely to be the case for several months. He worked as SDO at Oldpark Station. In August 2001 he approached his line supervisor for overtime and was referred to OHU who said on 7 August 2001 he could do overtime as an SDO. No overtime as SDO was available to him. On 31 August he went off sick on grounds of stress.

Both Con Speers and Con Chalmers were referred to the Force Order in relation to their allocation of overtime.

(iii) Con McFettridge worked 9.00 am to 5.00 pm and did not wish to work overtime.

32. 16 The applicant compared herself to R/Con Ward who did same work as her – SDO or assistant SDO but was not restricted. She compared herself to him to show that overtime as an SDO or assistant SDO was available.
33. 17 The applicant was transferred to Oldpark station in January 2002 in position of SDO. Sgt Allen was also transferred. Neither had asked for a transfer. The applicant in her evidence said "I accepted it and didn't complain about it". This was consistent with the entry in Sgt Bradley's notebook in which he records telling the applicant on 25 January 2002 that as a result of changes in personnel and reduction of response vehicles she would be located at Oldpark as SDO in charge of two reserve constables; that the decision had been made on a purely operational basis. She appeared pleased and looked happy with the change and expressed no reservations to him.

It was clear that manpower in Oldpark was down – to three persons per section, one as security at gate, one as SDO and one to cover either of these positions.

The tribunal accepted the applicant's evidence that Con White of Police Federation suggested to her that her transfer was significant coming so soon after she had lodged her claim of sex discrimination in relation to allocation of overtime and that it was probably on his advice she lodged her second claim. Unfortunately the tribunal did not have the benefit of his evidence on the matter.

34. The relevant legislation is contained in the Sex Discrimination (Northern Ireland) Order 1976 Articles 3, 7 and 8.
35. The tribunal considered the submissions made and cases cited by Counsel.
36. In relation to the applicant's first claim, the tribunal was satisfied it had jurisdiction to hear same pursuant to Article 76(6)(b) of the Sex Discrimination (Northern Ireland) Order 1976. The alleged discrimination relates to the allocation of overtime to the applicant from March 2001 to November 2001. This was an act extending over a period of time. The tribunal would refer to Hendricks –v- Commissioner of Police for the Metropolis (Court of Appeal) 2003 IRLR 50. In addition the tribunal accepted the applicant's evidence that it was not until the end of August 2001 she became aware of the possibility of sex discrimination i.e., that the treatment by the respondent in relation to the allocation of overtime to her was different to the treatment afforded to male officers.
37. 1 Pursuant to the Sex Discrimination (Northern Ireland) Order 1976 Articles 3(1), 7 and 8 and to case law, in particular the decision in Shamoon –v- Chief Constable of the Royal Ulster Constabulary [2003] ICR337 (HL) the applicant must 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 unlawful act of discrimination against her i.e.

(i) Less favourable treatment.

(ii) On grounds of her sex.

To show that the less favourable treatment was on ground of her sex, the applicant must show that another male in the same or not materially different circumstances was treated differently or that a hypothetical male in the same or not materially different circumstances would have been treated differently.

The House of Lords in the Shamoon case said that whilst the traditional 2 stage approach:

(i) Was there less favourable treatment and

(ii) If so, was it on grounds of sex.

May be appropriate in some cases, in other cases, less favourable treatment cannot be determined until it has been asked why the applicant was treated as she was.

38. 2 The applicant's case was that she was permanently restricted but was for the allocation of overtime treated by the respondent as temporarily restricted or recuperative. By treating her as temporarily restricted the respondent could not allocate her overtime in the normal way without the explicit approval of line management and the medical adviser. The respondent treated the applicant as temporarily restricted or recuperative because of the reports of the medical advisers of 5 September 2000 and 13 April 2001. The wording of both these reports do not indicate a permanent or lengthy restriction. In the first Dr Crowther says "we are awaiting further scans and comments from neurosurgeon"; in the second "at present", "review after neurosurgeons have commented on possibility of her having surgery". It was not until on or about 7 June 2001 when she had her consultation with the neurosurgeon that the applicant herself was aware that without an operation, which was not advisable, her condition was permanent. Had she gone back then to OHU, she would have been classified as permanently restricted which is what happened after she was seen by Dr Crowther on 24 October 2001 and when he confirmed it was in order for her to do overtime in SDO capacity.
39. 3 Two male officers, Con Speers and Con Chalmers, who were similarly restricted in their duties to the applicant were not allocated overtime. When they raised this with Con Thompson of OPU he referred them to the Force Order. Con Speers who raised the matter in March 2001 went to OHU and was classified as fully fit. Con Chalmers raised it in August and was referred to OHU who confirmed he should remain working as an SDO for several months and that he could do overtime in this capacity.

The applicant was not referred to the Force Order when she raised the matter of her overtime with Con Thompson. It was however raised with her federation representative, Con Cahill, a few days later when he was making representations on her behalf. In comparison to the two male officers the only less favourable treatment was that the applicant was not referred to OHU in June when she raised the matter. There is nothing to suggest this was because she was female but rather that her federation representative did not do it or advise her to do it.

40. 4 Counsel for the applicant did not accept either Con Speers or Con Chalmers as appropriate comparators. She suggested R/Con Ward and argued that the fact that he was not subject to any medical limitation was not a material difference between him and the applicant.

In the tribunal's view it was a very material difference. We could understand that the applicant used him to illustrate the amount of overtime available to SDO's and assistant SDO's, overtime she believed she could have done. The fact he was not subject to any medical limitation meant he was, if required, available for non-confrontational duties and he was not subject to Paragraph 11 of the Force Order. There was no evidence to show that a hypothetical male comparator would have been treated differently to the applicant had he been in the same circumstances or not materially different circumstances.

41. 5 Counsel for the applicant highlighted a number of instances from which she asked the tribunal to draw inferences of sex discrimination:-

(i) Con Thompson's conversation with the applicant on 22 June 2001 – his failure to refer her to the Force Order and his abrupt tone. The tribunal did not find in the circumstances that it could draw such an inference.

(ii) In relation to the Force Order that the federation representatives were not familiar with it. There was no evidence to confirm this; that the applicant was not referred to it in June does not confirm this; the evidence of Sgt Browne was that she referred Con Cahill to it and he was fully aware of it and they discussed it.

(iii) No documentation between OPU and personnel re officers with duty restrictions. The explanation offered was that at the relevant time there was only a small number of officers with duty restrictions i.e., four. The tribunal could not draw any inference of sex discrimination.

(iv) Someone other than Con Thompson detailed overtime to applicant. The tribunal accepted his explanation that it was probably detailed by her section sergeant because of a need. Again the tribunal could not draw any inference.

Counsel also suggested that in Dr Crowther's report of 5 September 2000 the words that the applicant would have "no difficulty in working the normal shift system" meant she was fit to work overtime. Unfortunately it did not say so and the tribunal did not think it appropriate to make the assumption.

42. 6 The tribunal was not satisfied that the applicant had proved facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent had committed unlawful discrimination against her or to put it another way the tribunal was not satisfied on the evidence before it that the applicant had established sex discrimination in respect of her first claim.
43. In relation to the applicant's second claim the tribunal was satisfied on the facts found (7.17) that the applicant was not discriminated against on ground of her sex and/or victimised because she had filed a sex discrimination claim but was transferred to Oldpark Station for genuine operational reasons.
44. We have considered the claim made by Counsel for the respondent for costs to be awarded against the applicant in respect of her claims, particularly the second complaint.

Pursuant to Article 12 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 1996 a tribunal has a discretion to make an Order for Costs where it is of the opinion that "a party has in bringing or conducting the proceedings acted scandalously, frivolously, vexatiously, abusively, disruptively or otherwise unreasonably".

The respondent's application did not include "scandalously", "frivolously" or "disruptively" but relied on "vexatiously, abusively" or "otherwise unreasonably". There was no suggestion that the applicant acted from a spiteful or improper motive. The respondent's application relied on lack of substance in the applicant's claims and that they had no reasonable prospect of success.

In relation to the first case, the applicant believed she had been treated unfairly in respect of the allocation of overtime. Chief Inspector Robinson in his evidence said he understood the applicant's view that her restriction was permanent, also that there was some confusion with the introduction of the Force Order and delay in getting medical evidence. She was the only female in her section who was restricted in relation to duties. She believed that male officers like her were being treated differently. It is the view of the tribunal that she had a prima facie case and was entitled to bring her claim to the tribunal which did not reach its decision until it had heard all the evidence.

In relation to her second claim the applicant was given some 4-5 days notice she was being transferred to another station. It was suggested to her by her police federation representative that it might be significant following so soon after her lodging a sex discrimination claim. On 28 January 2002 the applicant wrote to Sgt Jardine of OPU seeking information about her transfer but did not receive any reply. Again there was a prima facie case.

The originating application in this claim filed almost a month later, and also in the first claim, were both signed by solicitors acting on behalf of the applicant but who at the hearing were no longer acting for her. Also at the hearing neither of the police federation representatives were available to give evidence. It was not therefore certain to us that the applicant "had the benefit of legal advice at all times prior to and during the presentation of these complaints".

Finally in neither case was any application brought by the respondent for a pre hearing review.

Having considered all the circumstances the tribunal refuses the respondent's application for costs against the applicant.

Chairman:

Date and place of hearing: 15, 16 October 2003 and 27 November 2003, Belfast.

Date decision recorded in register and issued to parties: