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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> AB v Police Service of Northern Ire... [2010] NIIT 06723_09IT (11 March 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/06723_09IT.html
Cite as: [2010] NIIT 06723_09IT, [2010] NIIT 6723_9IT
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 6723/09
7477/09
7612/09
CLAIMANT: AB
RESPONDENTS: 1. Police Service of Northern Ireland.
2. Chief Constable PSNI.
3. (CD).
4. (EF).
5. (GH).
6. (IJ).
7. (KL).
8. Deputy Chief Constable.
9. (MN).
10. (OP).
DECISION
It is the unanimous decision of the tribunal that the claimant was not discriminated against on the grounds of her sex either by way of direct discrimination or victimisation.
Constitution of Tribunal:
Chairman: Ms Andrea Crooke
Members: Ms Eileen Kennedy
Mr Robert Hanna
Appearances:
The claimant was represented by Mr Neil Richards, Barrister-at-Law, instructed by Gerald P Henvey, Solicitors.
The respondent was represented by Mr Adrian Colmer, Barrister-at-Law, instructed by the Crown Solicitor’s Office.
PRELIMINARY MATTER
(1) Following an application by the respondent, pursuant to Rule 54(2)(a) of the Industrial Tribunals Rules of Procedure contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) (2005), the tribunal considers that it is expedient in the interests of national security that an Order be made that the above entitled proceedings be conducted in private; and it is so ordered.
(2) The tribunal further considers that, and it is so ordered, it is expedient in the interests of national security that an Order be made pursuant to Rule 54(2)(a) of the Rules of Procedure, that the identity of all parties to the proceedings and all witnesses to the proceedings be concealed in this decision.
SOURCES OF EVIDENCE
1. The claimant gave evidence on her own behalf. Additionally, QR (now retired) and ST gave evidence on behalf of the claimant. The following gave evidence on behalf of the respondent:-
MN, GH, EF, CD, EF1 (these officers were in the claimant’s line of management). The following witnesses were called from the various Human Resources functions within the first respondent:- OP, KL, WX. YZ acted as a note taker during the claimant’s meeting with EF. Additionally, IJ and UV heard the claimant’s grievance and her appeal respectively. Finally, the tribunal also heard evidence from CD1, who was a retired officer who had been involved in the case as a representative of the Police Federation and “a Federation friend”. CD1 also had a role in the Federation Benevolent Fund. The tribunal heard from the Deputy Chief Constable, who at the time of the events in question was the Acting Chief Constable.
THE CLAIM AND THE DEFENCE
2. The claimant claimed that she had been discriminated against on the grounds of her sex contrary to Articles 3 and 8 of the Sex Discrimination (Northern Ireland) Order 1996 and subjected to discrimination by way of victimisation contrary to Article 6 of the Sex Discrimination (Northern Ireland) Order 1976. The claimant’s claim in respect of harassment contrary to Article 6A of the Sex Discrimination (Northern Ireland) Order 1976 as amended was abandoned and is hereby dismissed. The respondents denied that in their dealings with the claimant they had discriminated against her on grounds of her sex or that they victimised her as alleged or at all.
THE RELEVANT LAW
3. The law relating to sex discrimination is principally found in the Sex Discrimination (Northern Ireland) Order 1976 (“the 1976 Order”) as amended. In particular the tribunal considered the following articles:-
a. Article 8(2) which provides as follows:-
It is unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland, to discriminate against her:-
(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them; or
(b) by dismissing her, or subjecting her to any other detriment.
b. Secondly, the tribunal considered the provisions of Article 3 of the 1976 Order. Article 3(2) provides as follows:-
In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman:-
(a) If on the grounds of her sex, he treats her less favourably than he treats or would treat a man….
The definition of direct discrimination is found in Article 3(2)(a) of the 1976 Order and it is as follows:-
That on the ground of her sex, the respondent has treated the claimant less favourably than it treated or would have treated a man.
In
considering the claimant’s situation the tribunal has to compare
like-with-like as set out in Article 7 which provides as follows:-
Each of the following comparisons, that is:-
(b) A comparison of the cases of persons of different sex under Article 3(1) or (2) must be such that the relevant circumstances in the one case are the same, or not materially different in the other.
c. The law in relation to victimisation is found in Article 6 of the 1976 Order which provides as follows:-
6(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 a person victimised less favourably than in those circumstances he treats or would treat other persons, and also by reason that the person victimised has:-
(a) brought proceedings against the discriminator or any other person up to this Order;
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Order…
(c) otherwise done anything under or by reference to this Order… in relation to the discriminator or any other person; or
(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Order… or by reason that the discriminator knows the person victimised intends to do any of those things, or suspects the person victimised has done, or intends to do, any of them.
(2) Paragraph (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.
d. As in all cases concerning discrimination the tribunal had regard to Article 63A of the 1976 Order which provides as follows in relation to the burden of proof:-
(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent (a) has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of Part Three or (b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination or harassment against the complainant, the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or, as the case may be, he is not to be treated as having committed that act.
The tribunal also considered the following cases:-
Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337.
O’Neill v Governors of St Thomas Moore Roman Catholic Voluntary Aided Upper School [1996] IRLR 372, at Page 376, Paragraph 39.
Igen Limited v Wong [2006] IRLR 258.
THE ANALYSIS OF THE EVIDENCE
4. In general where there was a divergence between the versions of events given by or on behalf of the respondents and the versions of events given by or on behalf of the claimant, the tribunal preferred the evidence given by and on behalf of the respondents. This is because it was given in a consistent and convincing manner. By contrast, the claimant displayed a habit of failing to answer the questions put to her to the point where she could almost be characterised as being evasive in her evidence. In particular, the tribunal was very impressed by the evidence given by EF1 and retired CD1 both in terms of the evidence given, and the manner in which it was given, which was particularly straightforward.
THE FACTS FOUND
5. (1) At the time of the events described in this case the claimant was a Detective Sergeant employed in C4 Department of the Crime Operations Department of the first respondent.
(2) This Department is involved in surveillance operations and it has Departments that include firearms, surveillance, aerial support, technical support, and operations centre, automatic number plate recognition, and a quality performance unit.
(3) The following persons were in the claimant’s line of management:
MN,
GH,
EF,
CD, and
EF1.
(4) The claimant for the greater part of the time referred to in this case ran the red surveillance team. For part of the time, her co-Sergeant was QR.
(5) Although the events complained of by the claimant commenced with a meeting of 24 September 2008 with CD, the tribunal has nonetheless considered it useful to set out the background which led up to this meeting as follows:-
(a) On 12 January 2008 the claimant had been asked to deploy her surveillance team and informed head quarters that her team did not deploy on a Saturday. Later, she was persuaded to deploy the team, but it was later found out that the full team had not deployed and the claimant had certified certain people as present who were not present.
(b) On 25 January 2008 there was a meeting concerning the performance of the red team to do with record keeping and supervision issues.
(c) Due to the intervention of CD1 (in his capacity as a Police Federation Representative), EF was persuaded to deal with the situation by way of a Superintendant’s written warning rather than by way of disciplinary proceedings.
(d) It was notable that CD1 had to persuade the claimant to sign the Superintendant’s written warning. She was highly reluctant to do so. At that stage in the first respondent, a Superintendant’s written warning could only be given if it was accepted by the officer involved.
(e) A team from the Surrey Police Force carried out an independent review of Operation *, which was an operation in which the claimant was involved, over a period of months. The main reason for the investigation was that there was a leakage of confidential information which had fallen into the public domain. The claimant was not accused of leaking information, but she was specifically mentioned in the C4 Section of the confidential report of the Surrey Police Team as not having complied with recording requirements of information in her notebook. Initially it was proposed to deal with this by way of a Superintendant’s written warning. However, the claimant required that the matter be reviewed by the first respondent’s Professional Standards Department and this took place on 1 February 2008. The result was that advice and guidance were to be given to the claimant. The tribunal has noted that the advice and guidance was to the effect that the claimant was to comply with recording requirements. The claimant’s complaint about this was that at the time of Operation * the guidelines about which she was given advice were not at that time in force. However, EF emphasised that she had to comply with whatever guidelines were current.
(f) In or around 8 April 2008 EF was approached by GH1 and CD1, both of whom said that the claimant had not achieved closure in connection with the issues arising from Operation * and considered that management were “out to get her”.
(g) EF1 took over from IJ1 as the claimant’s immediate Supervisor in August 2008. On 4 September 2008 the claimant was given a fitness testing project by CD. The claimant contended that this was unusual. She said that no other operational Sergeant had been required to carry out a project. Extensive evidence was given by EF about various projects undertaken by various operational Sergeants. EF1’s view of the project that it was a small matter was not contested in evidence. Both he and CD were keen to assist the claimant and made suggestions to her about how she might tackle the project. EF1 had a background in training and mentoring and would have had no difficulty in assisting the claimant towards the successful completion of the project. The tribunal found that Sergeants (male and female) were given projects to complete.
(h) On 10 September 2008 there was a vote taken in the various teams to set up a voluntary shift agreement to help resources. One team had been deployed in the field for a very long time and desperately needed relief. The claimant canvassed her team and found that there would be 50 per cent in favour, 50 per cent against.
(i) On 11 September 2008 she was telephoned for the result by CD. She told him and he asked for the names of the people who had voted. The claimant considered that these should not be given and telephoned her EF1, who was in London on a course and her Federation Representative, CD1. The claimant’s evidence was that both CD1 and EF1 told her not to release the names. EF1 and CD1 denied this indicating that it was a lawful order and should be complied with (even if it was a little unusual). In the event, QR intervened when the claimant became emotional suggesting they be allowed to go back to the team. Both he and the claimant canvassed the team again and an amended result of 75 per cent in favour of the new shift arrangement was obtained. CD was informed but indicated to them that he would be looking closely at the red team in future. Later that day he apologised to the claimant for having upset her. The tribunal accepts that this was not his intention. The tribunal accepts that he had an important operation to resource and was trying to think about the needs of the persons who had been deployed for a long time in the field.
(j) Despite this apology, the claimant had a meeting on 12 September 2008 with GH to tell him what had happened. He suggested to her that she should make a complaint about it. She did not do this.
(k) On 17 September 2008 the variable shift agreement finished as there was no longer any operational need for it. The claimant was told to have everyone in her team report as normal. QR was in Manchester at this time and became extremely upset whenever he was told that he had to report for 10.00 am the next day. He was not told by the claimant that if anybody had difficulties they would be sympathetically looked at. He telephoned GH and explained to him how badly he felt and was told to take some time off work.
(l) On 22 September 2008 EF1 had reason to speak to the claimant about her attitude to senior management. He advised her to stop “badmouthing” the senior management. At this the claimant became tearful and said “the team had to know how much senior management can’t manage and if people in senior management are “assholes they shouldn’t be offended about being called names or talked about”. The claimant denied some of her usage of foul language. As the claimant confirmed in open tribunal that she told WX, a Human Resources Manager, “I’ll tell you what I said to CD in that meeting, I said to him "stick your job up your hole””, the tribunal finds it very likely than not on the balance of probabilities that the claimant did say that management were “assholes” and used other profane language to GH. On 23 September 2008 a meeting was initiated by CD to discuss having an “on-call” arrangement. There was general opposition to this in the teams but for the most part the opposition was stated in an appropriate manner. However, by contrast the claimant had an altercation with CD1 at the meeting and in general was flustered, red faced and confrontational creating a “them and us” attitude and stating that they (management - tribunal’s interpretation) were trying to punish the teams.
(6) The meeting of 24 September 2008 had been previously discussed between EF1, CD and EF. EF had been told that CD was going to talk to the claimant about her performance. This meeting took place in the presence of EF1. One of the first things discussed was the fitness testing project that the claimant had been given to carry out on 4 September 2008. She indicated that it would be at least two weeks before she would address it as she was fully involved in running her team, it was not due until 1 October anyway and she was scheduled to take a week to help the training team in Magilligan. Both CD and EF1 had indicated that they were keen to help with the project as both of them would have had relevant experience to offer, but this was totally ignored by the claimant. CD also discussed her record of behaviour. The claimant stood up and said “put me on the sick”. CD asked her to sit down as he had not finished but she shouted “put me on the sick” and walked out. CD asked EF1 to obtain the claimant’s notebook but the claimant refused to give it to him. She said “I’ll have to write it up and I’ll give it to GH”. On the same date the claimant had an emotional meeting with the head of branch, GH. She complained about CD and GH said that he would be referring her to Occupational Health and had a discussion with her about her future in the Crime Operations Department, saying that he would help her in any way that he could to get her to return to work with a posting that would meet her needs in terms of emotion and work life balance.
(7) On 21 October 2008 the claimant had a further meeting with GH in his office indicating that she wished to bring a bullying and harassment claim against CD. GH brought in KL, an HR professional working in the Crime Operations Department, to speak to the claimant about the process. KL did so but indicated to the claimant that in his experience, which was to the tribunal not insignificant, there were no winners in this process.
(8) On 24 October 2008 the bullying and harassment claim was lodged by the claimant against CD.
(9) On 26 November 2008 WX, another Human Resources Manager in the Human Resources Department, was appointed as information gatherer and met with the claimant to take a statement from her. It was particularly noted by the tribunal that the claimant was anxious for WX to interview all of her team to show how stressed she had been and how they had wanted to call an ambulance for her at the time of the interview with CD. WX indicated that she already had evidence that the claimant had been distressed, both from CD, and from the claimant.
(10) By 3 December 2008 EF had been made aware that he was to take over the claimant’s performance interview to protect CD from allegations of victimisation. On 8 December 2008 he sought to clarify whether to proceed by way of Unsatisfactory Performance procedure or by way of discipline. He decided to choose the Unsatisfactory Performance procedure because it is designed to address a pattern of poor performance and also to take consideration of welfare. He also established with the Professional Standards chief of department, KL1, that he could raise issues that were not previously raised before.
(11) On 10 December 2008 EF initiated the procedure with the claimant seeking a suitable appointment and requested that she hand her notebook in to him. On 22 December 2008 the claimant indicated that as her federation representative was not available it would be January before the interview could take place and queried surrendering her notebook, alleging that her federation representative thought that this was unusual. At the same time the claimant’s former federation representative, CD1, made his statement for EF.
(12) On 5 January 2009 EF spoke to the claimant resulting in her requiring to speak to GH first, before she did so. GH encouraged her to hand her notebook in to EF and it was done on this date.
(13) On 14 January 2009 the claimant’s actual performance interview took place under the Unsatisfactory Performance procedure. EF put the claimant on an action plan to be supervised by EF1. This was to address her inadequate performance and her attitudes to senior management. Part of this action plan stressed the requirement for a Supervisor to be a positive role model and the two principles of the plan were her personal responsibility both to maintain records and maintain records of training and her duty as a Supervisor to maintain staff records and deliver training to her team.
(14) At this time GH indicated to the Human Resources Department that he was concerned about the length of time these procedures were taking.
(15) During this time WX was continuing to conduct the bullying and harassment process throughout December 2008 and January 2009 and IJ was appointed as decision maker.
(16) In or around 21 January 2009 EF drew up a confidential report to GH about the claimant stating that he considered that her position in C4 was untenable. This was despite the fact that EF1 had delivered a broadly positive report on the claimant’s action plan. The points stressed by EF were that there was a breakdown in working relationships and a mutual loss of confidence.
(17) He delivered that report to GH but it was unclear how and why IJ had received a copy of this report.
(18) This report was certainly taken into account by IJ in reaching his decision to reject the bullying and harassment complaint and in response to a request for clarification on certain points. EF drew up a supplementary report commenting on the claimant’s further behaviour on 17 April 2009. The most salient point concerned the handing over of the claimant’s notebook to EF. The claimant had taken the view that only EF1 was entitled to see her notebook. It took counselling by GH before the claimant was prepared to release the notebook to EF. When she handed it over to him she told him not to “tamper” with the notebook. EF asked why and was told that it contained things that were important to the claimant. He asked what they concerned and she said an industrial tribunal. When asked if she would like to take a copy of the notebook the claimant indicated that she had already done so. The point which concerned EF particularly, and indeed was commented upon adversely and at length by a number of the persons giving evidence to the tribunal, was the fact that she had sealed her notebook with a confidential seal before handing it to EF. It was generally the view of the persons giving evidence that this was practically unheard of. The notebooks operated by Police Officers are regarded as being the personal property of the Chief Constable and as GH said, if MN asked for his notebook he would hand it over straightaway. EF drew from this encounter the inference that the claimant despite her appearing on the face of the action plan to have complied with the requirements to be a more positive role model, still did not display any confidence in senior management. EF felt that this had to be addressed because he took the view that at some stage senior management would be in the position of giving the claimant an order in a life and death situation and they could not run the risk that she would equivocate or outright fail to carry out their direct orders.
(19) IJ and KL in or around 5 May 2009 agreed that the Service Confidence Procedure should be applied. A Service Confidence Procedure panel was set up. However while KL and IJ , as they read the procedure, felt it applied to officers in which there was a loss of confidence, OP disagreed. OP had been involved in the drawing up of the procedure and he considered that it was applicable to an entirely different situation and advised MN not to proceed with it. However, after that, GH, under the powers contained in the Police Act, transferred the claimant out of C4.
(20) The claimant appealed against this transfer to the Deputy Chief Constable. This officer had a meeting with MN and there was a careful and conscientious check to see whether there was any position at all into which the claimant could be slotted. There was not and the claimant’s appeal against transfer was dismissed.
CONCLUSIONS
6. (1) To successfully mount a claim for discrimination the constituent elements are:-
(a) that there was less favourable treatment;
(b) in comparison with an actual or hypothetical comparator; and
(c) the treatment was on a prohibited ground.
(2) The claimant complained of her treatment by management from the interview of 24 September 2008 onwards through the Unsatisfactory Performance and Service Confidence procedures up until and including her transfer out of C4 and back into uniformed policing. This was a course of conduct by management which was designed to preserve the claimant’s career in C4, and which when it failed, had the end result of transferring her out of C4. The tribunal found ample evidence to suggest that the claimant was treated with patience and understanding by her management. Her senior officers tried to save her career, and in the course of so doing were met with aggressive, confrontational and emotional behaviour from her.
(3) The actual sequence of events was that CD commenced proceedings against the claimant to deal with her behaviour, and performance, before she initiated her bullying and harassment complaint. Accordingly we do not accept that her bullying and harassment complaint sparked off the chain of events which resulted in her transfer.
Furthermore the claimant was repeatedly asked to make a complaint or “move on” by management. In the face of such encouragement, we do not accept that her making the complaint was the reason for her treatment. The victimisation claim fails as there was no credible evidence. In particular her suggestion that IJ treated her less favourably on the ground of her sex or her bullying and harassment complaint was grounded on her view, which was not supported by evidence, that he was close to GH.
(4) There was no evidence to suggest that the claimant’s sex had any role in the course of treatment of which she complained. However, the tribunal found ample evidence that the claimant’s performance was unsatisfactory, and her attitude to management was starting to become a matter of deep concern.
The claimant provoked a divisive atmosphere between her team and management, and used profane language when referring to management, and also on an occasion to GH.
(5) The very demanding requirements of the job carried out by the claimant are of particular importance. There was above all a need for mutual trust and confidence. If an order is given, the management of C4 needs to know that it will be obeyed. The claimant had displayed hostility to management and even after the completion of the Unsatisfactory Performance procedure (one of the purposes of which was to address the claimant’s attitude to management) she displayed a continued hostility as evidenced by the notebook incident already referred to. The management could not trust the claimant. It was her continuing hostile behaviour that was the reason management treated her as they did and not for her sex or her bullying and harassment complaint. The claimant did not contest that other male officers who had been subject to Unsatisfactory Performance plans were ultimately transferred out of C4.
(6) The tribunal had deep reservations about the actual male comparators which the claimant raised. The tribunal considered that their situations were materially different in that none of them had the claimant’s recent history of performance issues and issues with management. Neither did it accept a hypothetical comparator. As previously stated other male officers were subject to Unsatisfactory Performance plans and subsequently were transferred out of C4. The claimant did not deny the existence of initiatives to encourage women to join C4.
(7) The tribunal accepted that management could not trust the claimant to carry out her duties appropriately within the chain of command and this was why she was transferred. She was a risk to her colleagues and the general public potentially.
(8) We have already discussed the reason for the claimant’s treatment and concluded for the reasons set out that it was not on a prohibited ground inference.
(9) As we have not found any primary facts from which an inference of discrimination can be drawn, the question of the shifting of the burden of proof does not arise.
(10) For all the above reasons the claimant’s claims are dismissed.
Chairman:
Date and place of hearing: 6-10 September, 13-17 September, 20-23 September,
6-8 October and 12-13 October 2010, Belfast.
Date decision recorded in register and issued to parties: