Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

 

CASE REFS: 4119/17

4120/17

 

 

 

CLAIMANTS: Darwin Mawhinney

Barry McMullan

 

 

RESPONDENT: Chief Constable of the Police Service of Northern Ireland

 

 

DECISION

 

The majority decision of the tribunal is that it does not have jurisdiction to determine the claimants' claims and accordingly their claims are dismissed.

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Bell

 

Members: Mr A Huston

Mr A White

Appearances:

 

The first-named claimant was represented by Mr N Phillips, Barrister-at-Law, instructed by Worthingtons Solicitors.

 

The second-named claimant was represented by Mr Hand.

 

The respondent was represented by Ms R Best, Barrister-at-Law, instructed by the Crown Solicitor's Office.

 

 

1.             The claimants in their claims complained of indirect age discrimination arising from the respondent's introduction at short notice of a (time limited) computer based test into a promotion process disadvantaging them in comparison to younger candidates who had more IT training during their induction, were more computer literate and able to type faster, resulting in higher pass rates for younger candidates.

 

2.             The respondent resisted the claimants' claims and in its responses contended that the computer based assessment, as a further sift, was introduced to reduce the large number of candidates otherwise anticipated to progress to the interview stage with consequent vulnerabilities regarding the maintenance of fairness, consistency and confidentiality and given the numbers involved that the process was required to be run over an agreed timeline. At briefing sessions candidates were advised that they were not required to produce large volumes of text to demonstrate effectiveness and could use bullet points or short sentences; also that spelling, punctuation and grammar would not be assessed, so as to ensure candidates not sure of their computer skills were not disadvantaged. Neither claimant submitted an appeal under the appeals process set out within the Selection Competitions and Appointments Guidance. Constable McMullan requested a remark but there was no provision for this to be done.

 

3.             An order was issued on 2 November 2017 that the above claims be considered and heard together.

 

4.             Following orders made at a Case Management Discussion held on 23 November 2017 the parties provided an agreed statement of legal and factual issues and thereafter signed and dated witness statements as a complete statement of their evidence relating to the issues.

 

5.             At the outset of the hearing: in the interests of cost efficiency it was agreed that liability would be determined first; Ms Best confirmed it was still contended that there was a live time point.

 

ISSUES

 

6.             As per the parties agreed statement of Legal and Factual Issues the main issues before the tribunal for determination in summary were:

 

Preliminary Issues

 

A.         Were the claims lodged within the primary 3 month statutory time limit?

 

If not,

 

B.         Is it just and equitable to extend time?

 

Issues thereafter:

 

If so,

 

C.         Have the claimants proven facts from which, in the absence of an explanation from the respondent, the tribunal could conclude that the respondent has indirectly discriminated against the claimants on the grounds of age contrary to Regulation 3(1) (b) of The Employment Equality (Age) Regulations (NI) 2006? Was a provision criterion and/or practice applied equally to all applicants which placed the claimants and those aged 40 years and over at a particular disadvantage compared to other applicants?

 

If so,

 

D.         Was the introduction of the computer based sift tool:-

 

(i)    For a legitimate aim?

 

(ii) A proportionate means of achieving that aim?

 

EVIDENCE

 

E.         The tribunal considered the claims, responses, agreed bundle of documentation, witness statements and sworn oral testimony from the claimants, Elizabeth Semple (former Equality Officer for the Respondent) and Stephen Gibson (Chartered Occupational Psychologist) for the claimants; and for the respondent from Carmel McCormack (Human Resources (HR) Strategic Lead), Tom Garland (Registered Occupational Psychologist), Michael Wilkinson (Head of Internal Selection and Promotion), Ronald Farrar (Chief Superintendent) and David Beck (Head of Policing with the Community Sub- Branch).

 

FINDINGS OF FACT RELEVANT TO PRELIMINARY ISSUES

 

7.             As per the evidence of Mr Gibson Information and Communications Technology (ICT) was formally introduced as part of the National Curriculum in the UK in 1988. By 2005 around 50% of schools included laptops in their technology budget.

 

8.             The PSNI Strategic Promotions and Examinations Board (SPEB) following its last Sergeant Promotion Competition commenced in 2014, determined in 2016 that a further process should be commenced in September 2016 to fill an anticipated 100 vacancies in the 12 months from April 17 to March 18. SPEB decided that candidates passing the first stage Law and Procedure exam required under the PSNI Promotion Regulations would progress directly to the interview stage. An assessment centre had been implemented as an interim sift in the 2014 process but found ineffective in narrowing the candidate pool. It was proposed by HR and discussed at a SPEB meeting in summer 2016 that interviews be undertaken in batches spread throughout the year each with its own merit list which would first be exhausted before appointments made from the next tranche.

 

9.             The Promotion Competition launched in September 2016 and 1836 applications were received by the closing date. Based upon previous competitions over 700 were expected to pass the first stage.

 

10.          In October 2016 the Police Federation Northern Ireland (PFNI) raised concern that interviewees in the final tranches would be disadvantaged and withdrew its support for the tranche approach, its position being that a final merit list could not be produced until all candidates had been interviewed.

 

11.          HR anticipated significant challenges in undertaking all the interviews in one go including: maintaining stability of panels; preventing panel fatigue; ensuring consistency in marking; and maintaining confidentiality of questions. Consequently it was put to SPEB in November 2016 that the decision to progress all candidates who passed the first stage to interview was not practicable and SPEB sought options for consideration to manage the applicant pool should the anticipated number pass to the next stage.

 

12.          On 28 November 2016 an options paper was presented to SPEB which identified 3 options: do nothing; implement a higher cut score; introduce a further sift tool. A higher cut score was considered to have a significant negative impact reducing the number of females progressing to the next stage by 3% and so it was decided that the implementation of an additional sift tool using the Policing Professional Framework behaviours which the interview process was designed to assess, was the most suitable way forward. This sift test had been previously used by some England and Wales Police Forces. The format of the assessment was not a consideration. The decision to introduce a computer based assessment into the promotion process was not at that stage equality screened by the respondent with a view to ensuring compliance with equality and good relations duties under Section 75 of the Northern Ireland Act 1998. The Service Executive Board ratified SPEB's decision on 19 December 2016 following which candidates were individually emailed and notice placed on the Police Service of Northern Ireland (PSNI) intranet notifying them of the introduction of the further sift into the sergeant promotion process.

 

13.          Constable McMullan received by email dated 19 December 2016 his notification that: SPEB had decided it would be appropriate to introduce a further sift to the process with the aim of reducing the applicant pool to between 250-300 meaning less panels interviewing and increased consistency in approach; HR would run (on dates to be advised) information sessions on the sift tool during the week commencing 9 January 2017; it would be a scenario based assessment planned to take place on 25 & 26 February 2017 with those successful invited to interview commencing 27 March 2017 onwards.

 

14.          By email dated 9 January 2017 candidates were notified that three information sessions on the sift tool were taking place on 11 and 12 January 2017. Constable McMullan as per his evidence was surprised at the decision to introduce a sift stage being of the view that there were considerably less applications than for the previous promotion competition. Constable McMullan attended an information session on 12 January 2017 which he found helpful. Constable Mawhinney did not attend any of the information sessions.

 

15.          Following on from the information sessions candidates were supplied by email on 13 January 2017 with a list of Frequently Asked Questions (FAQs) with answers relating to the sift tool from which it was apparent that it would be a computer based assessment requiring answers to be typed into a Word document on screen. These included:

 

What is the format?

 

POINT takes the format of a written in-tray exercise. Candidates are provided with paper feed presenting FIVE specific items/ scenarios and are required to respond to each of these items. Candidates will be required to type their responses into a word document.

 

Is the document free text or will there be options to select from?

 

The response template is 'free text' for candidates to type into. There will not be a series of options of actions for candidates to select from.

 

Is there a limited word count?

 

There is no word count or limit to a candidate response to any of the items/ scenarios.

 

Candidates are not required to produce large volumes of written text in response to the scenarios in order to demonstrate their effectiveness.

 

Is it ok to use bullet points?

 

Written communication is not assessed so candidates can use bullet points or short sentences. Neither spelling, punctuation or grammar is assessed. However, candidate responses need to be understandable in order for the assessor to mark these.

 

What format should my answers take?

 

Candidates are free to use the format that they feel is most effective for them in conveying their response to the two tasks. As referenced previously, written communication is not being assessed.

 

What can I bring into the assessment room with me?

 

...... Although answers must be typed directly into the word document on screen. Candidates will be provided with pen/ paper to make notes. These cannot be removed from the room at the end of the assessment.

 

What preparation can I undertake?

 

Slide 10 of the accompanying slides offers some practical advice for candidates in order to help them perform at their best. The assessment will test your ability to think and operate at the Sergeant level so the better understanding you have of this and how much you have thought through how you would personally approach the challenges and demands of this rank will be effective preparation.

 

Will negative marking be used?

 

The way that POINT is assessed means that the concept of 'negative marking' doesn't really apply. However, assessors take into account ALL the evidence you provide in response to each item in evaluating the quality and quantity of the evidence against the marking guide. Therefore, evidence provided which could have a detrimental impact (e.g. on an officers welfare or the reputation of the force) would have a negative effect on the grade awarded in that item.

16.          Any keyboard or Information Technology (IT) system tasks performed by the claimants in the course of their duties were not usually performed under strict time constraints and generally involved niche systems with drop down menus.

 

17.          After learning that he was to participate in a timed computer assessment Constable Mawhinney aired his concerns with Chief Inspector Seffen, whom he informed that his typing speed and skills were poor and that he would be at a great disadvantage to others to whom he would be in competition with. Constable Mawhinney understood from Chief Inspector Seffen that representation had already been made to HR to seek some sort of compromise to establish if a handwritten paper was an option but later heard that this option had been ruled out, the date upon which he heard was not confirmed in evidence.

 

18.          Constable McMullan as per his evidence was shocked to be informed on
13 January 2017 that the sift tool was to be a computer based assessment. He was worried that his typing speed and lack of "technological know-how" would let him down; was very disappointed that he was not made aware prior to the launch of the process that this assessment would be computer based to allow him time to work on his typing speed, and develop a preliminary understanding of the Microsoft Word programme; and felt that in the midst of studying for the Law exam, studying the relevant competencies, and having a young family, that he had insufficient time to study and develop his computer skills to ensure that he could compete with "the younger candidate". Constable McMullan was aware of several officers who shared his concerns in relation to use of the computer based assessment who had spoken to senior officers and Human Resources about their concerns and so did not feel it necessary to lodge an additional complaint of his own, being hopeful the process would be modified to allow for a paper-based assessment or delayed to allow older candidates to develop ICT skills in response to complaints already raised, albeit this did not happen.

 

19.          The Law and Practice exam took place on 28 January 2017. The College of Policing subsequently identified 23 questions as having unusual response patterns and PSNI deemed 12 of these questions as 'problematic' and so decided to give all candidates an extra 12 marks. Consequently 671 candidates passed the exam, including both claimants. Constable Mawhinney achieved a score of 71% against the force average of 56%.

 

20.          By email dated 17 February 2017 Constable McMullan was informed of his success in the Law examination and thereafter invited by email of 22 February 2017 to attend on 4 March 2017 the sift stage of the process. Constable Mawhinney was informed likewise and invited to attend on 26 February 2017.

 

21.          The sift test exercise information for candidates encouraged candidates to initially read all of the materials and advised that they may link information where they felt it was appropriate to do so across the individual items.

 

22.          On 26 February 2017 Constable Mawhinney, who was 46 years of age at the time, undertook the computer based assessment sift tool. As per his evidence he divided his time evenly between the 5 presented scenarios and 10 typing boxes, using a stop watch to manage his time, but considered with his slow typing speed that he was unable to complete each scenario to his satisfaction before having to advance to the next box/ scenario. Although he typed as fast as he could Constable Mawhinney knew that he had not inputted enough information into each box in order to effectively answer the scenarios, was deflated after the examination and felt disadvantaged by the timed computer based assessment.

 

23.          Constable Mawhinney was unaware at the time of the sift test of a 'cut and paste' shortcut facility and on subsequently learning of it considered that he lost valuable time going in and out of every screen whereas others with a good knowledge of Microsoft Word compartmentalised the screen allowing a succinct overview of resources at their disposal and that he could have performed a lot better if he had been allowed to handwrite his answers within the given time.

 

24.          On 28 February 2017 Constable Mawhinney forwarded an official written grievance to HR concerning the computer based assessment and how he felt disadvantaged in comparison to other candidates. He set out therein:

 

I wish to state that having been involved in the Sift process that I feel I was severely disadvantaged due to the fact that I am slow at typing and have very limited skill in this area which was an important component part of the process. This process incurs no negative marking, so therefore the more information and detail a candidate gets typed on the page, the more chance they have to hit the markers and therefore are automatically at a clear advantage to me.

 

This organisation promotes equality and fairness and I believe that it has set a very poor example of those values on this occasion. I am aware that there are touch typists who took part in this process and surely they are immediately at an advantage from all other candidates. I feel this was a very discriminatory process with a number of persons having a greater advantage to others leaving the process without integrity or fairness.

 

I have taken some time to consider my position I feel I have no option but to instigate a grievance on this occasion.

 

25.          Constable McMullan undertook the sift test on 4 March 2017 at which time he was 40 years of age. As per his evidence all the scenarios in the assessment were part of the handover for the same shift, therefore information could be linked across the individual items. He considered that as a result of his lack of computer skills he had to go back and forth in and out of various screens when it was clear to him that resourcing one incident resulted in another scenario having fewer resources. From the start of the assessment Constable McMullan found it very distracting listening to several younger candidates, who were in close proximity, and in his view typing at significant speeds. He was further distracted because when he glanced around the room, whilst he could not decipher what any candidate was typing, he saw that several candidates, all of whom he considered appeared to be a lot younger than him, had split their screen into different segments meaning that they were able to answer their questions simultaneously. Constable McMullan did not know how to do this and considered it put these candidates at a significant advantage being able to view the interlinked scenarios all at once, helping them and saving them time which could be used to type. He was not aware or trained in this facility and considered himself to have spent a lot of time clicking in and out of various screens to compare answers whilst listening to other candidates seemingly 'touch typing'. Constable McMullan felt that candidates who were able to split multiple screens had an excellent overview of the scenarios and could complete the assessment assured that they had given each scenario equal attention. During the assessment Constable McMullan felt that he did not have enough time to type all of his responses; that he had to leave a lot of information out due to his slow typing speed; and that use of a computer based assessment was extremely advantageous to the younger candidates, who were more likely to have more advanced "technological know-how".

 

26.          On 6 March 2017 Constable Mawhinney copied by email to Constable McMullan a copy of his grievance email of 28 February 2017.

 

27.          Constable Mawhinney's grievance was considered by Carmel McCormick who did not uphold it as a stage 1 appeal and then forwarded the papers to Superintendent Simon Walls of District Policing Command to progress consideration as a stage 2 appeal, setting out therein:

 

'in response to the comment that the progress was heavily reliant on the ability of a person to be able to type, candidates were advised in briefing sessions and in the Q & A provided on 13 ^th January that they were not required to provide large volumes of text in response to scenarios to demonstrate effectiveness so they could use bullet points or short sentences. It was also advised neither spelling punctuation or grammar would be assessed. For example, in the same way as someone at interview who speaks slowly is not necessarily at a disadvantage to someone who speaks quickly as it is the content that is assessed not the sheer volume of information.'

 

Superintendent Walls responded by email to Constable Mawhinney setting out that with reference to Constable Mawhinney's recent appeal relating to the sift tool stage he had considered the information provided together with the decision of the Stage 1 Appeals Manager Carmel McCormick and concurred with her decision and confirmed as a result the Stage 2 appeal was not upheld. The date of Superintendent Walls' response was absent from the copy of his email adduced in evidence and was not otherwise confirmed in evidence.

 

28.          On 14 March 2017 Constable Mawhinney raised by email, an additional complaint against the fairness of the sift process, that Constables in South region had been schooled and briefed on the Sift process on 23 February 2017, giving them a huge advantage over him and asked this be considered with his original complaint of 28 February 2017.

 

29.          By emails of 20 March 2017 the claimants were individually informed they had been unsuccessful at the sift tool stage. Constable McMullan was informed his score was 25 out of a maximum score of 40 and the pass mark 26.

 

30.          Constable McMullan as per his evidence following his experience with the computer based sift tool felt unsupported, let down and disappointed in the respondent for what he saw as a failure to adhere to their statutory duties in the process and to embrace equality of opportunity for all. He thereafter in an attempt to raise his concerns sent two emails to HR in the first of which he requested a meeting to discuss his concerns in relation to the process, to which he received a response 4 days later advising him to address matters by freedom of information requests, and a second email sent on 21 March 2017 in respect of which he did not receive a specific response.

 

31.          On 30 March 2017 an email was issued to candidates referred to as being in response to their recent correspondence regarding the sift tool and stated that as there had been a number of similar queries raised, a FAQ sheet had been prepared, a copy of which was attached. It in particular set out therein:

 

Q. I have only average typing skills and touch typists have an advantage. This process was not an operational in tray exam but a typing skills assessment.

 

A. Candidates were advised in briefing sessions and in the Q&A provided on 13 ^th January 17 that candidates were not required to produce large volumes of text in response to scenarios to demonstrate effectiveness so they could use bullet points or short sentences. It was also advised that neither spelling, punctuation nor grammar would be assessed. For example, in the same way as someone at interview who speaks slowly is not necessarily at a disadvantage to someone who speaks quickly as it is the content that is assessed not the sheer volume of information.

 

Q. Is it possible for my Sift Tool assessment to be resubmitted for review and re-marking?

 

A. The PSNI is satisfied that there was an appropriate calibration and rigour in terms of the marking scheme and this was supplemented by an appropriate quality assurance process. There is no provision to have papers re-marked.

 

Q. Is there an Appeals procedure?

 

A. The Appeals process is set out within the Selection Competitions and Appointments Guidance and can be found on PoliceNet.

It states the following: "A candidate who wishes to make an appeal must submit the full grounds for appeal in writing, within 7 days of the selection process."

 

32.          Constable McMullan as per his evidence lodged a grievance with the respondent on 6 April 2017, no evidence as to the detail thereof was provided.

 

33.          On 5 May 2017 both claimants were emailed feedback requested by them for the sift tool together with confirmation that the exercise sought to assess two behaviour areas: Managing Performance and Professionalism; and as to how it was scored.

 

34.          Feedback comments as to Overall Task Performance for Constable McMullan included:

 

Overall you identified some of the issues within each incident but you did not always demonstrate a clear awareness of the associated implications of these. You were very task focused and tended to identify issues surrounding the physical investigation, while focusing far less on performance management issues of staff and the inter relationships between officers. As the task progresses you provided less detail and were perhaps struggling with time allowance.

 

35.          Constable Mawhinney's personal feedback under Overall Task Performance comments included:

 

Overall you did identify some of the key issues and for the most part you demonstrated an awareness of the associated implications with these. However you needed to consider the implications of these consistently to convince of your understanding of the broader picture. To be able to fully assess the risks around an issue, and determine your actions you need to understand all the implications. Otherwise it could be considered that your actions haven't been given enough thought.

 

36.          By letter dated 15 June 2017 Constable Mawhinney was informed by the HR Service Centre :

 

Re: Grievance - Sergeants Process 2017

 

Having reviewed the content of your Form G1a, I wish to advise that I am unable to accept this matter as a formal grievance as:

 

•        This procedure does not apply for those matters where an alternative appeal mechanism exists. In other words, if you have raised the matter before during the appeal stage of any process, you cannot raise the issue again through the Grievance procedure.

 

•        Any Grievance seeking a review of a previous decision (which are themselves subject to a 3 step process) will not be processed.

 

Constable McMullan was informed likewise in respect of the content of his Form G1A by letter dated 16 June 2017.

 

No evidence was presented as to the content of G1A forms submitted by either of the claimants nor contention made that either claimant delayed presentation of their claim form pending a response thereto.

 

37.          On 19 June 2017 both claimant's presented their claims to the office of the tribunals each naming thereon as their representative the Equality Commission.

 

38.          Statistics for the promotions process for different age groups show:

 

Age Range	Nos sat L&P exam	% Pass L&P Exam	Nos Sat SIFT (Comp Based Assess)	% Pass	Nos at interview	% Successful at interview	% Passed from L&P exam to select list
25-29	78	51.3	40	62.5	25	72	23.1
30-34	303	56.8	171	56.7	97	67	21.5
35-39	359	60.4	217	46.5	101	56.4	15.9
40-44	263	51.3	135	40.7	55	60	12.5
45-49	174	51.7	90	30	27	40.7	6.3
50-59	40	45	18	22.2	4	50	5
Total	1217	55.1%	671	46%	309	60.2%	15.3%

 

39.          There is no clear correlation between age and success at the Law and Procedure exam or interview stage. Statistics show however a clear correlation between increasing age and significant increased failure of the sift test. Whilst the figures also show the percentage of older candidates doing less well overall in progressing from the Law exam onto the selection list, these figures incorporate the sift tool results and are affected accordingly.

 

40.          We accept on balance that both claimants were just short of the pass mark for the sift test and more probable than not, absent the required computer based means of input, likely to have provided longer answers with a greater likelihood of addressing therein required issues and to have otherwise scored higher so as to have progressed to interview stage.

 

41.          In September 2017 Constable McMullan passed an interview panel and was placed on, and to date remains upon, a Temporary Promotion Sergeant List.

 

42.                                                         The respondent's equality officer (at that time) Mrs Semple became aware following complaints received in October 2016 that the decision to introduce a computer based assessment into the promotion process had not been equality screened in compliance with section 75 of the Northern Ireland Act 1998 and the respondent's own Equality Scheme as to impact on the section 75 grouping of age and that statistics released under freedom of information seemed to support that this was the case. Screening is a key tool to enable public authorities to identify policies that are likely to have an impact on equality of opportunity and/or good relations leading to consideration for an equality impact assessment and most useful if introduced at an early stage when developing or reviewing a policy than after policies have been developed. The respondent self-reported the matter to the Equality Commission and was advised to undertake a retrospective screening exercise. Ms Semple highlighted to the respondent the importance of resolving the issue given it was unlikely to be done prior to her imminent departure from the PSNI on 24 November 2017. Whilst a retrospective screening exercise was thereafter carried out by Ms McCormick in which she concluded on 11 December 2017 that the perceived impact on the Equality grouping of age was low and so no equality issues identified, she acknowledged under cross-examination flaws in her assessment and which she accepted without, would have otherwise led her to assess the impact as high for the grouping of age. The respondent's retrospective assessment has not as at the date of hearing been signed as accepted on behalf of the strategic Diversity Steering Group so as to complete it.

 

43.          It was accepted by the claimants that the introduction of a sift tool, but not the computer (Microsoft Word) based format thereof, was a legitimate aim, being the reduction of numbers of candidates going forward. Also it was accepted that there was no evidence that the respondent had applied the computer based assessment with the intention of treating the claimants unfavourably on the grounds of age.

 

44.          As at April 2018 only eight officers have been appointed from the 2016/2017 promotions list.

 

45.          Both claimants defined an 'older candidate' as those aged 40 and over; and the 'younger generation' as those aged 39 and under. Both claimants at the time of the sift test fell into the older candidate pool.

 

RELEVANT LAW

 

46.          The Employment Equality (Age) Regulations (Northern Ireland) 2006 (as amended) provide at:-

 

"3(1) .... a person ("A") discriminates against another person ("B") if:-

 

(a) on the grounds of B's age, A treats B less favourably than he treats or would treat other persons; or

 

(b) A applies to B a provision criterion or practice which he applies or would apply equally to persons not of the same age group as B, but one which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and

 

(2) which puts B at that disadvantage,

 

and A cannot show that the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim.

 

(3) A comparison of B's case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

 

(4) In this Regulation:-

 

(a) "age group" means a group of persons defined by reference to age, whether by reference to a particular age or a range of ages; and

 

(b) the reference in paragraph (1)(a) to B's age, includes B's apparent age."

 

 

 

 

47.          Burden of proof: industrial tribunals

 

"42 (1) This regulation applies to any complaint presented under regulation 41 to an industrial tribunal.

 

(2) Where, on hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this regulation, conclude in the absence of an adequate explanation that the respondent:-

 

(a) has committed against the complainant an act to which regulation 41 (jurisdiction of industrial tribunals) applies; or

 

(b) is by virtue of regulation 26 (liability of employers and principals) or regulation 27 (aiding unlawful acts) to be treated as having committed against the complainant such an act,

 

the tribunal shall uphold the complaint unless the respondent proves that he did not commit, whereas the case may be, is not to be treated as having committed, that act."

 

48.          Period within which proceedings to be brought

 

"48(1) An industrial tribunal shall not consider a complaint under regulation 41 (jurisdiction of industrial tribunals) unless it is presented to the tribunal before the end of a period of three months beginning when the act complained of is done...

 

(2) A court or tribunal may nevertheless consider such a complaint or claim which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

 

(3) For the purposes of this regulation and regulation 46...:-

 

(b) Any act extending over a period shall be treated as done at the end of that period; ..."

 

49.          How the burden of proof provisions, applicable to these proceedings, work is set out in the case of Igen Ltd -v- Wong [2005] IRLR 258, CA. It is for the claimant to prove facts from which the tribunal could conclude in the absence of any explanation by the respondent that discrimination on the grounds of age (whether direct or indirect) has occurred. If the claimant succeeds in proving such facts, the burden of proof shifts to the respondent to disprove that any discrimination whatsoever occurred and the burden is then upon the respondent to prove that any such discriminatory behaviour, or any provision criterion or practice applied, was justified in that it was a proportionate means of achieving a legitimate end.

 

TIME

50.          To determine whether a discrimination complaint has been presented in time it is first necessary to consider when the act complained of was done.

 

51.          Generally in tort a cause of action accrues when every fact has eventuated which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court.

 

52.          Harvey on Industrial Relations and Employment Law considers at Division L, 5. E. (2) The date on which discrimination occurs, and at Division PI, 1. F. (5) (c) Time limits in discrimination and detriment claims, both of which the tribunal has considered, in particular paragraphs [817] and [106.01] respectively thereof. Where a discrimination claim is based on a failure to select or promote the claimant the date is to be determined by asking whether a cause of action has crystallised rather than by focussing on whether the claimant felt that he had been discriminated against. The EAT in the case of Clarke -v- Hampshire Electro Plating Company Ltd 1991 IRLR 430 stipulates that it is a question of fact for the tribunal as to when the claim crystallised. The principle is that the date of the act of discrimination must be capable of determination by reference to the occurrence of an act or acts and not be dependent on the state of knowledge of the disadvantaged party. Any lack of knowledge of facts required to prove discrimination is one of the relevant factors for the exercise of the discretion to allow claims out of time on the basis of what is just and equitable.

 

53.          Proceedings in the Industrial Tribunal must be commenced within the statutory time limits set out in the statutes and statutory instruments that confer the right to bring the proceedings. Time limits are not procedural niceties that may simply be waived, but go to the tribunal's jurisdiction. If an application is out of time and cannot be brought within the applicable statutory formula for the extension of time (where one applies) then the tribunal must refuse to hear the case.

 

54.          It is clear from case law that where the 'just and equitable' formula applies for the extension of time, as with the Age Regulations, that the discretion to extend time is broader than for where the formula of 'reasonable practicability' applies. The Court of Appeal in the case of Robertson v Bexley Community Centre 2003 IRLR 434 stated as follows in relation to the issue of extension of time limits:

 

An employment tribunal has a very wide discretion in determining whether or not it is just and equitable to extend time. It is entitled to consider everything that it considers relevant. However time limits are exercised strictly in employment cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify the failure to exercise the discretion. On the contrary the tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. The exercise of discretion is thus the exception rather than the rule.

 

55.          Harvey on Industrial Relations and Employment Law considers at Division PI 1. G. (3) the 'Just and equitable' extension, in particular Para [277]- [285], in particular setting out at Para [277.01]:

 

"In  Chief Constable of Lincolnshire Police v Caston   [2009] EWCA Civ 1298 ,  [2010] IRLR 327 , the Court of Appeal dismissed any suggestion that Auld LJ's comments in  Robertson  were to be read as encouraging tribunals to exercise their discretion in a restrictive manner. ......... According to Sedley LJ: `there is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised' (para 31). Whether a claimant succeeds in persuading a tribunal to grant an extension in any particular case 'is not a question of either policy or law; it is a question of fact and judgment, to be answered case by case by the tribunal of first instance which is empowered to answer it' (para 32). As Langstaff J put it in   Abertawe Bro Morgannwg University Local Health Board v Morgan   UKEAT//0305/13 (18 February 2014, unreported), a litigant can hardly hope to satisfy that burden unless he provides an answer to two questions (para 52):

 

''The first question in deciding whether to extend time is why it is that the primary time limit has not been met; and insofar as it is distinct the second is [the] reason why after the expiry of the primary time limit the claim was not brought sooner than it was"."

 

56.          The words 'in all the circumstances of the case' refer to circumstances relating to why the claim was late. The tribunal can take into account a wide range of factors in determining whether it is just and equitable on the facts to allow an out of time claim to proceed. It does not have to consider the full circumstances of the case ( Hutchinson v Westward Television Ltd 1977 ICR 279, EAT), although may do so as a factor in its decision making if it considers it necessary. In British Coal Corporation v Keeble and ors 1997 IRLR 336 the EAT suggested tribunals might be assisted in the exercise of their discretion if they considered factors listed in S.33 of the Limitation Act 1980 which requires the court to consider the prejudice which each party would suffer as a result of the decision reached, and to have regard to the circumstances of the case and identifies matters for consideration. The equivalent legislation in this jurisdiction is the Limitation (Northern Ireland) Order 1989 which at Article 50(4) sets out matters for consideration as including the length and reasons for the delay, the effect of the delay on the cogency of the evidence, conduct of the defendant after the cause of action arose, the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages, the steps taken to obtain legal advice and the nature of any such advice he may have received. Whilst a useful guide, the tribunal is not required to go through such a list, the only requirement being that it does not leave a significant factor out of account ( London Borough of Southwark v Afolabi 2003 ICR 800).

57.          As per Harvey Division PI 1. G. (3) para [297.02] (which appears immediately following [2 79.01]) where a claimant asserts ignorance of the right to make a claim, the assertion must be genuine and the ignorance - whether of the right to make a claim at all, or the procedure for making it, or the time within which it must be made - must be reasonable. It is not enough, in a case where ignorance is relied upon, for a tribunal to conclude that a claimant has not acted reasonably and promptly without specifically addressing the alleged lack of knowledge. As a matter of law both kinds of knowledge, knowledge of the facts that could potentially give rise to a claim, and knowledge of the existence of a legal right to pursue compensation in respect of those facts are relevant and should be taken into account.

 

58.          Delay caused by a claimant awaiting the completion of an internal grievance procedure may justify an extension of the time limit but it is only one factor to be considered in any particular case, as are the principle of legal certainty and finality in litigation, and likewise the extent of the delay.

 

59.          How to exercise the discretion where the claimant does not put forward evidence in support of his application for an extension of time, explaining the delay, albeit not binding upon this tribunal, has been the subject of differing approaches by the EAT, (as referred to by HH Judge Clark in Rathakrishnan v Pizza Express ( Restaurants) Ltd [2016] IRLR 278 with regards to Pathan v South London Islamic Centre [2014] UKEAT/0312/13 and Szmidt v AC Produce Imports Ltd [2015] UKEAT/029/14 in contrast to Habinteg Association Ltd v Holleran [2015] UKEAT/0274/14 and similar approach in Smith-Twigger v Abbey Protection Group Ltd [UKEAT/0391/13]). In Rathakrishnan it was held that the failure to provide good reason for the delay in bringing a claim will not inevitably result in an extension of time being refused; the balance of prejudice and potential merits of the claim before the tribunal were relevant considerations and wrong for the tribunal not to have weighed these factors in the balance and instead to have terminated the exercise, having rejected the claimant's application for the delay.

 

60.          In Edomobi v La Retraite RC Girls School [UKEAT/0180/16], Laing J preferred to follow the approach in Habinteg stating she found it difficult to see:

 

" how a claimant can discharge the burden of showing that it is just and equitable to extend time if he or she simply does not explain the delay, nor do I understand the supposed distinction in principle between a case in which the claimant does not explain the delay and a case where he or she does so but is disbelieved. In neither case, in my judgement, is there material on which the Employment Tribunal can exercise its discretion to extend time. If there is no explanation for the delay it is hard to see how the supposedly strong merits of a claim can rescue a claimant from the consequences of any delay."

 

61.          We consider that overall the tribunal should adopt a multi-factorial approach and that no single factor alone is determinative on principle as to whether the discretion to extend time should be exercised under the just and equitable formula. As such we consider that there is no requirement that the tribunal must be satisfied that there was a good reason for the delay, nor that time cannot be extended in the absence of an explanation of the delay from the claimant. Whether there is any explanation or apparent reason for the delay and the nature of any such reason, again at most, are relevant matters to which the tribunal ought to have regard, noting however that the absence of any or proper explanation for the delay may, subject to the other factors, as found on the facts, weigh heavily against the granting of any extension given the exercise of the discretion is the exception rather than the rule and time-limits are to be exercised strictly in tribunals (as per Robertson).

 

62.          Ms Best and Mr Phillips provided the tribunal written closing submissions including reference therein to the main authorities upon which they relied. Mr Hand concurred with Mr Phillips submissions. The tribunal took account of all the written and oral submissions together with the authorities to which it was referred insofar as they were relevant to the issues in this case.

 

APPLICATION OF LAW TO FACTS FOUND

 

63.          The first matter to be determined by the tribunal is when did each of the claimant's individual causes of action crystallise?

 

64.          A cause of action crystallises when the constituent parts of the tort of discrimination are complete.

 

65.          In essence the claimants complained that the computer based means of input for the sift test answers left them less able than younger computer literate candidates with faster typing speed, to deliver their full answers, with a consequent reduced likelihood of them stating key points for mark allocation, resulting in lower scores for them and people in their age pool, and a higher pass rate for younger candidates.

 

66.          The respondent contended that the particular disadvantage identified by the claimants in pleadings was that they were unsuccessful in the promotions process whereas the claimants submitted that whilst this was ultimately a result of the effect of the disadvantage in the sift tool, the particular disadvantage relied upon was being unable to advance in the promotions process, thus losing the opportunity to:- interview for promotion; be placed on the promotions list; and, be promoted to Sergeant and the financial rewards associated with same. We accept that the particular disadvantage identified and complained of by the claimants was being unable to advance in the promotions process and associated loss of opportunity as specified in pleadings.

 

67.          For the purposes of the Regulation 3 (1) (b) indirect discrimination occurs if A applies to B a provision, criterion or practice which he applies or would equally apply to persons not of the same age group as B, which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and which puts B at that disadvantage and A cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim.

 

68.          Accordingly the tribunal must consider whether the cause of action was complete at the time of the application of the sift test, or, not until the respondent confirmed each claimant's failure of the sift test. It was contended on behalf of the claimants that the cause was not complete until the claimants were put to the particular disadvantage applied to persons of the same age group, and that their disadvantage only arose when they knew the outcome of the sift test on 20 March 2017. Questions posed by Mr Phillips included did the claimant suffer a disadvantage prior to being informed of the outcome of the sift test? And, what loss did the claimant suffer prior to discovering the outcome of the sift tool? It was contended that prior to then the claimant's incurred no injury to feeling.

 

 

 

MINORITY VIEW

 

69.          The minority view is that the cause of action did not crystallise until the claimants received confirmation of the outcome of the sift test and their disadvantage on 20 March 2017.

 

MAJORITY VIEW

 

70.          We note both claimants in their evidence confirmed their concern in anticipation of the sift test as to the disadvantage to which they would be put. It is clear from the evidence of Constable Mawhinney that he considered the computer based sift test would put him at a disadvantage in the promotions process as early as January 2017 prompting him to raise a complaint before undertaking the test and that he felt that he had been disadvantaged on doing so in consequence of which he raised further complaints. It is apparent from the evidence of Constable McMullan that he was also of the view that he would be disadvantaged in the promotions process by the sift test before he undertook it although did not raise a complaint beforehand because he was aware of others having done so and hopeful action might be taken on foot of this, and furthermore he also felt disadvantaged in comparison to younger candidates on undertaking the computer based sift test.

 

71.          We accept the respondent's submission that the claimants each complain about the introduction of the computer based sift tool and allege that this was an act of indirect discrimination; in particular the claimants were informed on
13 January 2017 that in respect of the sift tool the requirement would be for applicants to "type their response into a Word document"; that the claimants respectively took part in the sift tool on 26 February 2017 and 4 March 2017; that Constable Mawhinney raised complaints by email on 28 February and 14 March 2017 and knew what his complaint was before the outcome.

 

72.          We reject the submission that the cause of action did not complete until the claimants were advised of the outcome of the sift tool at which point they incurred injury to feeling, there being no loss incurred prior to then. We are not persuaded that completion of the cause was dependant on the state of knowledge of the claimants of the outcome of the sift test but find as a fact that the disadvantage to each claimant occurred on the date they were required to perform the computer based sift test, their performance in which meant they were unable thereafter to progress further in the promotions process. The claimants' anticipated and expressed concerns as to the disadvantage they were put by the sift test was confirmed to them on receipt of the respondent's confirmation on 20 March 2017 that they would not advance further. We agree this means that time began to run before the claimants knew for certain that they were unable to advance in the process as a result of their performance in the computer based assessment, but consider their lack of knowledge of this fact which goes to proof of discrimination is a factor relevant to whether it is just and equitable to extend time rather than delaying crystallisation of the cause of action and start of the primary time limit.

 

73.          We find as a fact that the cause of action for Constable Mawhinney crystallised on 26 February 2017 and for constable McMullan on 4 March 2017. Accordingly we accept that Constable Mawhinney's complaint should have been presented no later than 26 May 2017 and Constable McMullan's complaint presented no later than 4 June 2017 but neither were presented until
19 June 2017. As such both claims were presented outside the primary 3 month statutory time limit.

 

Is it just and equitable to extend time?

 

74.          Under Regulation 48 (2) a court or tribunal may nevertheless consider such a complaint or claim which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

 

75.          Ms Best contended that the claimants had failed to make any formal application to extend time and hence the tribunal's consideration should stop there. We however accept this matter was clearly identified and agreed by parties as an issue by the parties in their statement of main legal and factual issues.

 

76.          Ms Best further submitted that neither claimant gave evidence in their statements nor was evidence run to support it being just and equitable to extend time and so question for the tribunal only whether the claims are in time.

 

77.          We do not consider that the tribunal should on principle halt its consideration of whether or not it is just and equitable to extend time where a claimant has not run evidence in support of his application for time explaining the delay. We do not consider that we are obliged if a claimant gives no direct evidence about why he did not bring his claim sooner to infer that there was no acceptable reason for the delay, or even that if there was no acceptable reason that this inevitably means that time should not be extended. The tribunal is entitled to give consideration to any materials before it. Whether there is any explanation or apparent reason for the delay and the nature of any such reason, in our view are relevant matters to which the tribunal ought to have regard in a multi-factorial assessment of relevant matters in reaching a decision. No single factor is on principle alone determinative. We accept however that the burden lies with a claimant to persuade the tribunal that it has jurisdiction to determine the claim.

 

78.          The tribunal in considering a time extension should identify the cause of the failure to bring the claims in time, giving consideration to why the primary time limit was not met and why after expiry the claim was not brought sooner than it was. As per Langstaff J in A bertawe Bro Morgannwg University Local Health Board v Morgan a litigant can hardly hope to satisfy that burden unless he provides an answer to two questions:

 

''.... why it is that the primary time limit has not been met; and insofar as it is distinct the second is [the] reason why after the expiry of the primary time limit the claim was not brought sooner than it was.''

 

79.          Both claimants only contention in respect of the extension of time was that it would be just and equitable to allow them to bring their claims within three months of 20 March 2017 as being their date of knowledge of the nature of the disadvantage suffered. This implies an element of ignorance, or indeed mistake, for some period between 20 March and 19 June 2017, whether of the right to make a claim at all, or the procedure for making it, or the time within which it must be made. An assertion of ignorance of the right to make a claim must be genuine. Ignorance - whether of the right to make a claim at all, or the procedure for making it, or the time within which it must be made - must be reasonable. An alleged lack of knowledge should be considered before reaching any conclusion that a claimant has not acted reasonably and promptly. Knowledge of the facts that could potentially give rise to a claim, and knowledge of the existence of a legal right to pursue compensation in respect of those facts are both relevant.

 

80.          There is however a lack of evidence before the tribunal to assist it. No evidence was adduced by either claimant nor is there evidence before the tribunal as to the date from which the claimants each knew they could raise a claim, when each sought advice, when they became aware of time limits, how they acted thereafter to present their claims, and whether they acted promptly in presenting their claims after they became aware of the relevant facts or their right to do so. There was an intervening period of 67 days for Constable Mawhinney from date of notification of the outcome of the sift test until expiry of the primary time limit and his claim was presented 24 days thereafter. There was an intervening period of 76 days for Constable McMullan from date of notification of the outcome of the sift test until expiry of the primary time limit and his claim was thereafter presented 15 days out of time. Both claimants are clearly intelligent men. We are mindful that the test is not whether it was reasonably practicable to present in time.

 

81.          No contention was made that the claimants were impeded in the presentation of their claims by the actions of the respondent or by reason of awaiting the outcome of an internal process. No submissions were made as to the balance of prejudice; merits of the case; public interest in allowing the case to go forward; nor principle of legal certainty in relation to time limits. We have however been mindful of these matters. We in particular note the strong merit in the claimant's claims relating to the format of the sift test (rather than timing of its introduction) albeit not certain the claimants would have ultimately succeeded at interview stage or indeed thereafter have been promoted. We also note the respondent's failure to screen its decision for impact on S.75 groups with a view to compliance with its duties under the NI Act before its decision to adopt a computer based assessment. These are all relevant matters to be weighed on the basis of the material before the tribunal in its assessment whether in all the circumstances of the case it is just and equitable to exercise the discretion to extend time.

 

MINORITY VIEW

 

82.          The minority view is that the claimants appear to have delayed until rejection of the claimant's G1A grievance forms and without the aid of legal representation thereafter promptly presented their claims and overall weighing relevant factors would be just and equitable to extend time.

 

MAJORITY VIEW

 

83.          It was not contended that the claimants were impeded from presenting their claims in time and we do not consider that they were. We are not persuaded on the evidence before us that if the claimant's delay was because they were awaiting the outcome of their G1A grievances, that this was reasonable.

 

84.          There is no evidence before the tribunal as to the extent to which the claimants each acted promptly and reasonably once they knew the nature of the damage suffered, steps taken by either to obtain legal advice and the nature of any advice received. Nor is there evidence before us as to how long for, either claimant, was in fact ignorant of his right to make a claim and upon which we can be satisfied that any such ignorance was genuine. There is no evidence as to either claimant's ignorance of his right to make a claim, the procedure for doing so, the time limits within which to do so, or mistake in respect thereof and upon which we can be satisfied that any such ignorance was reasonable.

 

85.          We are not satisfied on the evidence before us on balance that either claimants lack of knowledge until 20 March 2017 of the nature of the disadvantage suffered, as a reason then for either ignorance of time limits, mistake, or otherwise for delay thereafter in presenting their claims until 19 June 2017, was genuine and reasonable. We are not persuaded on the evidence before us that the claimants acted reasonably and promptly in the presentation of their claims. There is an absence of material before us. We consider that the claimants' lack of evidence and explanation in respect thereof weighs heavily in the balance of relevant matters set against in particular the merits.

 

86.          Overall, weighing relevant factors, we do not consider in all the circumstances of the case that it is just and equitable nevertheless to consider either of the claims out of time. We accept the respondent's submission that the claimants have failed in their burden of proof to persuade the tribunal that it has jurisdiction to determine their claims.

 

CONCLUSION

 

87.          By majority the tribunal finds that the claimants' claims were each presented outside the primary time limit for presentation thereof and does not consider in all the circumstances of the case that it is just and equitable nevertheless to consider either of the claims out of time. The tribunal does not have jurisdiction to determine the claimants' claims and accordingly their claims are dismissed.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 1-3 May 2018, Belfast.

 

 

Date decision recorded in register and issued to parties: