Title: FAIR EMPLOYMENT TRIBUNAL
Author: irtusetup
Last saved by: joe.ury
Company: DED

THE INDUSTRIAL TRIBUNALS

CASE REF:	1146/08

CLAIMANT:			Catherine Diane Armstrong

RESPONDENTS:		1.	Chief Superintendent Gary White 
				2.	Police Service of Northern Ireland 

DECISION
The unanimous decision of the tribunal is that the claimant was not victimised by the respondents.

Constitution of Tribunal:
Chairman:		Mr P Kinney

Members:		Mrs Gregg
			Mr Kinnear

Appearances:

The claimant was represented by Mr McIlwrath

The respondents were represented by Mr Colmer, Barrister-at-law, instructed by the Crown Solicitor’s Office.

1.	Issues to be determined

1.1	At the outset of this hearing some time was spent to identify clearly and precisely the issues between the parties. The issues were agreed as follows:-

(1)	The claimant complains that she has been victimised by the respondents.  The only protected act complained of was the presentation of tribunal proceedings by the claimant in March 2008 and referred to in these proceedings as the ‘body armour’ case.  The only alleged victimiser is the first-named respondent, Chief Superintendent Gary White. 

	(2)	The claimant makes four particular complaints against Superintendent White:-

(a)	That he victimised the claimant in his involvement in her injury on duty award.

(b)	That he victimised the claimant in his involvement in making a disciplinary sanction against her as part of his consideration of her bullying and harassment complaint.  The claimant contended that the sanction imposed was a disciplinary sanction and that she had no opportunity to make representations before a decision to impose a sanction was reached.

(c)	The claimant complains that Chief Superintendent White subjected her to excessive monitoring. 

(d)	The claimant complains that she was described by Chief Superintendent White as ‘mouthy’.

(3)	Although the claimant gave evidence about a number of people and a number of events the tribunal has focused on these issues as the issues that it must determine and the parties were reminded of this in the course of the hearing.

2.	Facts found

2.1	The claimant is employed by the second-named respondent.  She is also a Sergeant’s Federation representative on the Police Federation of Northern Ireland and a member of its Central Committee. 

2.2	The claimant attended the Central Committee meeting on 14 and 15 June 2007.  At this meeting, in the context of various issues which emerged, the claimant told the other members of the Central Committee she felt “like everyone in the room wanted to shag me”.

2.3	The claimant subsequently brought a complaint regarding the events of that meeting under the second-named respondent’s Bullying and Harassment Policy.  Although the incident happened at a Police Federation meeting, the claimant brought her complaint through the respondent’s Bullying and Harassment Policy which meant it was dealt with through the district structures of the respondent.  The decision-maker was the District Commander, the first-named respondent, Chief Superintendent Gary White. 

2.4	An information-gatherer was appointed from the HR Department.  The information-gatherer interviewed witnesses and prepared a report.  Although ultimately the authority to appoint the information-gatherer lay with the District Commander, he took no active part in the appointment.  The claimant makes no criticism of the information-gatherer in these proceedings. 

2.5	The second-named respondent considered the information-gatherer’s report in February – March 2008.  He concluded from the evidence before him that no further action should be taken regarding the complaint.  That decision is not challenged by the claimant in these proceedings.  However in considering the report, the       second-named respondent noted the concerns raised by a number of witnesses interviewed as to the comment made by the claimant at the meeting that she felt “like everyone in the room wanted to shag me”.

2.6	The second-named respondent was concerned about this language and considered that it may be a breach of the PSNI Code of Ethics.  However he decided to seek an independent third-party opinion and referred the issue to Detective Superintendent Taylor, supervising member of the PSNI Professional Standards Department.  

2.7	In referring the matter to Detective Superintendent Taylor, Chief Superintendent White sent a memo in which he explained why he was sending the matter to PSD. It states:-

“Since being appointed to examine this grievance I am aware that Sergeant Armstrong has initiated action in relation to sex discrimination over the issue of body armour.  While this is directed at the Chief Constable, as her District Commander, I may be subject to this investigation.

Additionally I am advised that Sergeant Armstrong has initiated a grievance in respect of being denied a secondment opportunity to Kosovo. 

As District Commander, it is my decision to restrict secondments out of this district. 

On that basis I would wish to exclude myself from any decision regarding the matter I have raised above, for fear that it might be perceived that I am not impartial in this matter.”

2.8	Chief Superintendent White did not offer the claimant any opportunity to make representations in relation to the alleged comment. 

2.9	At this hearing, the claimant accepted that she made the comments in question and that they were a breach of the Code of Ethics.  She contended that others at the meeting also used this language and should have been sanctioned, and that the sanction imposed on her was too severe as it did not take into account the circumstances and context in which the comments were made. 

2.10	Chief Superintendent White gave his evidence to the tribunal in a forthright and credible manner.  He frankly accepted that he was ‘treading carefully’ in relation to the claimant.  He was aware of the grievance on the secondment issue and the intention to commence tribunal proceedings on the issue of body armour.  He dealt with the bullying and harassment complaint because it was his responsibility to do so as District Commander.  The claimant does not challenge his role or his decision relating to the bullying and harassment complaint in these proceedings. 

2.11	Chief Superintendent White did not feel he could ignore the comments made by the claimant in light of comments of other witnesses.  He sought an independent opinion and felt Detective Superintendent Taylor in PSD was best placed to provide it.  He played no part in Detective Superintendent Taylor’s investigation.  He did not advise the claimant of her right to make representations or to have a friend accompany her as he was not investigating the matter.  In other circumstances he would have dealt with the matter himself and would have found a breach of the Code of Ethics.  He would probably have imposed a more severe sanction than that recommended by Detective Superintendent Taylor. 

2.12	Detective Superintendent Taylor considered the full file of papers, including the information-gatherer’s report and the witness interviews.  He was satisfied it was appropriate for him it deal with the matter.  In his professional judgment the comment made by the claimant was a breach of the Code of Ethics.  He recommended that an informal misconduct sanction of advice and guidance was appropriate.  He advised Chief Superintendent White accordingly.  At the time Detective Superintendent Taylor considered this matter, neither he nor Chief Superintendent White were aware that the claimant had commenced a grievance procedure against Detective Superintendent Taylor relating to his handling of an earlier complaint made by the claimant of another officer. 

2.13	Advice and guidance is at the lowest end of the range of disciplinary sanctions.  It is often applied by senior officers on the spot.  It is not recorded on an officer’s personal file and does not impede promotion prospects in the way that a formal sanction would.  It is meant to deal with issues effectively and to end matters.  

2.14	In investigating the issues, Detective Superintendent Taylor did not give the claimant an opportunity to make representations or to consult a friend in deciding whether to respond in accordance with the applicable guidelines.  He confirmed that an officer is advised of his or her rights when a formal misconduct investigation is initiated.  However it is not always done where the informal misconduct sanction is advice and guidance.  The nature of the sanction and the way it is delivered does not always mean that a formal process is appropriate. 

2.15	Detective Superintendent Taylor did not find any other breaches of the Code of Ethics in the papers he considered.  Other members of the meeting used similar language, but Detective Superintendent Taylor felt that these were used in rebuttal of the claimant’s comments.  The claimant makes no complaint of victimisation against Detective Superintendent Taylor in these proceedings.

2.16	Chief Superintendent White accepted the recommendation made by Detective Superintendent Taylor.  He considered himself bound by that recommendation and included it in his bullying and harassment outcome. 

2.17	The PSNI Bullying and Harassment Policy contains a provision that no information gathered as a result of the investigatory exercise can be used in any subsequent misconduct investigations.  However, at this tribunal the claimant did not question either Chief Superintendent White or Detective Superintendent Taylor about this provision. Rather, she questioned the information-gatherer and Assistant Chief Constable Finlay.  On the basis of the information before it, the tribunal finds as a fact that there was a breach of the Bullying and Harassment Policy.  However the tribunal heard no evidence as to how or whether this provision played any part in the decision-making of either Chief Superintendent White or Detective Superintendent Taylor, or indeed if they were even aware of it. 

2.18	Chief Superintendent White sought a meeting with the claimant to discuss the outcome of the bullying and harassment complaint, and to give the advice and guidance as recommended by Detective Superintendent Taylor.  The claimant did not accept the outcome and the meeting never took place.  The claimant refused to sign the outcome form and instead sent a six-page response to the outcome dated 14 May 2008 pointing out its perceived shortcomings.  In this document the claimant referred to the sanction imposed for the breach of the Code of Ethics.  She felt that the sanction “compounds my feelings of being intimidated, isolated, excessively victimised and psychologically abused”.  She makes no connection however between the sanction and the protected act.  In the same document the claimant went on to say that she felt Chief Superintendent White was not the appropriate decision-maker as she had a grievance against him due to the secondment policy.  She felt that the advice from PSD was inappropriate as she had taken a grievance against Detective Superintendent Taylor “which is not yet formalised”.  She did not feel the Chief Constable’s Office should deal with the matter “as I have currently a grievance against the Chief Constable for sexual discrimination which is lodged with [sic] Industrial Tribunal”.

2.19	The claimant initiated a grievance against Chief Superintendent White relating to the bullying and harassment complaint.  This was eventually dealt with on appeal by ACC Finlay, who also gave the claimant advice and guidance at a meeting on 13 January 2009 in accordance with Detective Superintendent Taylor’s recommendations.  ACC Finlay regarded advice and guidance as akin to feedback and described it as such. 

2.20	Chief Superintendent White did not pursue the issue of the advice and guidance with the claimant and no further sanctions against the claimant were imposed by Chief Superintendent White.

2.21	Chief Superintendent White has administered advice and guidance to officers many times.  Generally this takes the form of an informal conversation where he will talk over the incident with the officer concerned.  He viewed it as a two-way dialogue and would cover, depending on the circumstances, training issues or help provided from the District.  The only record kept is that he will record the giving of advice and guidance in his journal.  There is no other formal aspect to the process. 

2.22	The claimant gave evidence of other matters, including her perception that she was subjected to excessive scrutiny by members of the Police Federation, by reference to a meeting with ACC Finlay in January 2009, and the way in which her injury on duty award was dealt with after Chief Superintendent White’s involvement had ceased.  She also gave evidence of a grievance she initiated against Chief Superintendent White in relation to the bullying and harassment outcome.  The tribunal, at the outset of the case and during the evidence, confirmed the issues that were to be determined in this case.  Whilst these other matters may well be matters about which the claimant had some concerns, they were not matters which were relevant to the issues before us. 

2.23	The claimant had earlier made a complaint against another officer relating to the content of a text he sent which she found offensive.  This formed some of the background to the conduct of the Police Federation Central Committee meeting of June 2007.  That complaint was investigated by PSD.  The officer concerned was sanctioned and advice and guidance was given. 

2.24	The claimant also complained of Chief Superintendent White’s use of language at a meeting in July 2008.  Chief Superintendent White was sanctioned and was given advice and guidance by ACC Finlay. 

Injury on duty award

2.25	The claimant submitted an injury on duty report in November 2007.  This was referred by the PSNI HR Department to Chief Superintendent White in January 2008.  He raised a number of points for clarification.  These were referred back to the claimant who responded to the queries in early February 2008.  At this time Chief Superintendent White was unaware of the protected act.  The claimant presented her industrial tribunal proceedings on 20 March 2008.  They were received by the respondent from the Office of the Industrial Tribunal on 11 April 2008.  The claimant accepted that Chief Superintendent White acted entirely properly in dealing with the query raised with him by the HR Department in January.  She complained however that there was excessive delay and excessive scrutiny by Chief Superintendent White in dealing with the injury on duty issue.

2.26	Chief Superintendent White had gone on leave on 13 February 2008 and on his return was immediately involved in a promotions board which kept him out of his district work for some three and a half weeks.  The response to his queries was sent to him on 11 February 2008 immediately before he left on leave.  He did not make a response to the HR Department until 21 April 2008.  He opened his memo to the HR department with the comment:-

“The delay in returning these papers to you is as a result of an administrative oversight by me. I apologise for any inconvenience caused by the delay. “

2.27	Chief Superintendent White suggested the file be forwarded to the Occupational Health and Welfare Services to make a medical assessment of the claimant.  He had no further involvement in the injury on duty award process.  Chief Superintendent White had referred other officers to the Occupational Health and Welfare Services on injury on duty awards as he felt uncomfortable as a police officer assessing injuries and preferred to obtain specialist medical advice readily available to him. 

2.28	The claimant in her evidence made reference to a conversation she had with Chief Inspector McMullan in and around February 2009.  The claimant alleges that Chief Inspector McMullan told her that at a senior management meeting someone commented:-

“We should put her on the front gate without any body armour.”

This allegedly referred to the claimant and reinforced the claimant’s view that she was a troublemaker and in her own words ‘mouthy’.  Chief Inspector McMullan strenuously denied making such comments and said the claimant had raised matters stating that she (the claimant) believed such comments were made.  However it was never put to Chief Inspector McMullan that Chief Superintendent White was the person who made such a statement nor that he was present at such a meeting.  

2.29	The tribunal heard evidence from Chief Superintendent White relating to the issue of the availability of body armour for smaller officers, particularly females.  He took active steps in trying to secure such body armour.  He raised the matter internally within the PSNI and also attempted to source supplies himself, setting aside a substantial amount from his budget should an alternative supplier be found.  The claimant was concerned that Chief Superintendent White had not mentioned Special Measures to her as an option at the time.  Special Measures, it would appear, was the provision of individually measured and sourced body armour.  However Chief Superintendent White was not aware of the availability of Special Measures at the time. 

3.	The law

3.1	Article 6 of the Sex Discrimination (Northern Ireland) Order 1976 provides:-

	(1)	A person (‘the discriminator’) discriminates against another person (‘the person victimised’) in any circumstances relevant for the purposes of any provision of this Order if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has –

	(a)	brought proceedings against the discriminator or any other person under this Order or the Equal Pay Act or Articles 62 to 65 of the Pensions (Northern Ireland) Order 1995 …

3.2	In Harvey on Industrial Relations and Employment Law at Division l, Section 3, Paragraph 61 it is stated:-

“Where discrimination is an issue, the proper comparison to make is between the treatment which was afforded to the complainant who has done a protected act and the treatment which would have been afforded to others who have not done such an act.”

Harvey goes on to say:-

“… in deciding how a hypothetical comparator would be treated, the evidence that comes from how individuals were treated is likely to be crucial, and the closer the circumstances of those individuals are to those of the complainant the weightier will be the significance of their treatment.”

3.3	The issue of the respondent’s state of mind is likely to be critical. At Paragraph 67, Harvey states:-

“To put it another way, the respondent will not be able to escape liability by showing an absence of an intention to discriminate, provided that the necessary link in the mind of the discriminator between the doing of the acts and the less favourable treatment can be shown to exist. 

3.4	Victimisation is made out if the protected act is found to have formed any significant part of the reason for the decision maker’s action.  It does not have to be the only, or indeed the main reason. 

4.	Conclusions

4.1	The main question for the tribunal to determine is whether the claimant was treated differently to somebody who had not performed the protected act.  The claimant complains of excessive monitoring and being described as ‘mouthy’.  There was no evidence before the tribunal that anyone ever described the claimant as ‘mouthy’, much less Chief Superintendent White.  Similarly, apart from the specific incidents of the disciplinary sanction and the injury on duty award, the tribunal heard no evidence that supported the claimant’s case that Chief Superintendent White subjected her to excessive scrutiny.  In particular, the tribunal took into account that, although Chief Superintendent White had recommended that the claimant receive advice and guidance, he did not pursue that issue or subject the claimant to any further investigations or sanctions.  The advice and guidance was eventually provided by ACC Finlay. 

4.2	In relation to the injury on duty award, the tribunal is satisfied that the protected act played no part in the thinking of Chief Superintendent White in his actions relating to the award.  The claimant has accepted that Chief Superintendent White’s involvement initially was proper and bona fide.  The matter was referred to him by the HR Department.  The claimant’s complaint is of excessive scrutiny of the matter, and delay after Chief Superintendent White became aware of the protected act.  The tribunal is satisfied that the delay was of short duration and that Chief Superintendent White played no further part in the process after suggesting to the HR Department that the opinion of the Occupational Health and Welfare Services be sought.  Chief Superintendent White had taken similar steps in other cases when he sought readily available medical opinion.  The tribunal concluded that there was no evidence of less favourable treatment, and even if wrong on that finding, the protected act played no part in the decision.  

4.3	This leaves the issue of the disciplinary sanction.  There is no doubt that there were procedural defects on how this sanction arose.  The Bullying and Harassment Policy provides that no information gathered in a bullying and harassment exercise should be used in subsequent misconduct investigations.  The claimant makes the following complaints of this process:-

(a)	Chief Superintendent White made the decision to apply a sanction not Detective Superintendent Taylor who merely provided advice.

(b)	Chief Superintendent White was aware of the claimant’s intention to present a tribunal case relating to the body armour issue when he referred the matter to Detective Superintendent Taylor.

(c)	Chief Superintendent White intended to influence the advice of Detective Superintendent Taylor.

(d)	Chief Superintendent White should not have dealt with the matter at all. 

(e)	The bullying and harassment code of practice provides no information gathered from such an exercise can be used in a subsequent misconduct investigation.

(f)	The guidelines on disciplinary matters were breached as the claimant did not have a chance to respond to the allegation. 

4.4	In considering this aspect of the claimant’s claim, the tribunal has also had regard to the fact that the claimant accepted the language in question was inappropriate and in breach of the Code of Ethics. 

4.5	The tribunal is satisfied that Chief Superintendent White did not victimise the claimant in recommending a sanction for her inappropriate language for the following reasons:-

(a)	The tribunal were impressed with the evidence as given by Chief Superintendent White.  He frankly acknowledged he was in a difficult position.  The claimant’s initial complaint was related to a Police Federation matter, which she complained about through a PSNI procedure.  In bringing a bullying and harassment complaint, the appropriate decision maker was the District Commander, in this case Chief Superintendent White.  When the matter first came to him, and he received the information-gatherer’s report in February 2008, Chief Superintendent White was not aware of the protected act. 

(b)	In considering the papers, Chief Superintendent White was not aware of the protected act.  

(c)	The Chief Superintendent gave frank evidence that he knew he needed to ‘tread carefully’ and that in making decisions he was ‘damned if I do, damned if I don’t’.  He considered comments that he thought may be a breach of the Code of Ethics.  The claimant herself accepts that they were a breach of the Code of Ethics. 

(d)	To attempt to keep transparency and distance, Chief Superintendent White asked Detective Superintendent Taylor to consider the issue.  He took no steps to investigate the matter.  Detective Superintendent Taylor did not deal with the breaches in procedure.  He provided an independent assessment and recommended an informal misconduct sanction of advice and guidance.  The tribunal accepted the evidence of several witnesses that such a sanction is informal and is often administered spontaneously and without regard to formal procedures.

(e)	On receipt of Detective Superintendent’s Taylor’s recommendation, Chief Superintendent White did not attempt to change it, although his own view was that a higher sanction may be appropriate.  He felt he was bound by the advice given. 

(f)	Despite the recommendation made, the claimant did not attend the meeting with Chief Superintendent White to have the advice and guidance given.  However, Chief Superintendent White took no steps to enforce the sanction, or criticise the claimant for not receiving the sanction, which was not in fact applied until the claimant’s meeting with ACC Finlay the following year.  

(g)	The claimant made a full response to the outcome of the bullying and harassment process in May of 2009.  In this response she referred to the sanction applied.  However she did not in that response, suggest that Chief Superintendent White had acted on the basis of the protected act of the issuing of tribunal proceedings. 

(h)	There is no actual comparator.  In considering a hypothetical comparator, the tribunal had regard to evidence before it of how others in similar but not identical circumstances were treated.  Chief Superintendent White had administered the advice and guidance to other officers on an informal basis.  Another officer had sent the claimant a text with inappropriate language.  He had not brought tribunal proceedings.  He was given advice and guidance by PSD.  Chief Superintendent White used inappropriate language at a meeting involving the claimant.  He had not brought tribunal proceedings.  He was given advice and guidance by ACC Finlay. 

(i)	In these circumstances, the tribunal concludes that the informal sanction of advice and guidance was appropriate and there was no less favourable treatment. 

(j)	Even if the tribunal is wrong to reach this conclusion, it is satisfied that the claimant was not sanctioned because she had brought tribunal proceedings.  The investigation and recommendation for the sanction was made by Detective Superintendent Taylor against whom the claimant brings no complaint.  Indeed Chief Superintendent White brought a layer of formality to the process in an effort to ensure that the decision was made by someone not involved in the body armour issue.  The claimant does not make any case that Chief Superintendent White had any reason to victimise her because of the tribunal proceedings.  Indeed the evidence before us was that he was supportive of the need to obtain appropriate body armour.  Again when the claimant wrote her response to the outcome of the bullying and harassment complaint she referred to the secondment grievance as the reason that Chief Superintendent White should not have dealt with the matter.  She did not complain that it was because of the protected act.  She did however state that she felt that the Chief Constable’s Office should not deal with the matter because of the protected act. 

(k)	The tribunal therefore dismisses the claimant’s claim for victimisation against both the first and the second-named respondents. 

Chairman:

Date and place of hearing:	30 November 2009 – 4 December 2009, Belfast

Date decision recorded in register and issued to parties: