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Fair Employment Tribunal Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Murphy v Police Service of Northern Ireland [2007] NIFET 12_05 (11 January 2007) URL: http://www.bailii.org/nie/cases/NIFET/2007/12_05_FET.html Cite as: [2007] NIFET 12_5, [2007] NIFET 12_05 |
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CASE REF: 12/05FET; 84/05
CLAIMANT: Stephen Murphy
RESPONDENT: Police Service of Northern Ireland
The Tribunal finds that the claimant suffered religious discrimination, had his contract of employment breached and was unfairly dismissed. The Tribunal orders re-engagement by 16 July 2007 and awards compensation for religious discrimination of £44,723.62.
Constitution of Tribunal
Chairman: Mr B Greene
Members: Mrs S Butcher
Mr J Crockett
Appearances:
The claimant appeared in person.
The respondent was neither in attendance nor represented.
Sources of Evidence
The Claim and Defence
The Tribunal was satisfied that the respondent had been notified of the hearing and decided to consider the matter in the absence of the respondent.
The Issues
(i) Whether the claimant was discriminated against on the grounds of his religious belief/political opinion while employed by the respondent.
(ii) Whether the claimant was unfairly dismissed.
(iii) Whether the claimant's contract of employment was breached.
(iv) Should the claimant succeed in any or all of his claims, to establish the appropriate remedy?
Findings of Fact
(ii) The claimant worked as a civilian photographer and from 1998 was based at Knocknagoney police station. The claimant was subject to the police authorities at Knocknagoney.
(iii) At Knocknagoney PSNI station Inspector F was in charge. Also stationed there was Acting Sergeant (A/Sgt) K.
(iv) In 2000 the claimant developed a SICAR project for the respondent, whereby photographic services would be carried out within the respondent and not contracted out, thereby saving money from the respondent's budget. The respondent was very pleased with this development and the claimant's contribution was acknowledged by his superiors within the respondent and he headed the SICAR project.
(v) In early 2001 the claimant returned from leave and was advised by A/Sgt K that Inspector F had removed the claimant from SICAR duties and he would return to other duties. No discussion had taken place with the claimant about this change. Despite many requests Inspector F refused to discuss the matter with the claimant citing pressure of other work as the reason. He eventually promised to discuss this at the claimant's annual appraisal.
(vi) The claimant's appraisal took place around March 2001. Inspector F was the appraiser. Inspector F arrived at the appraisal meeting with the claimant's objectives already decided by him without any consultation with the claimant. The claimant felt that the form prepared by Inspector F did not reflect his achievements and had excluded any mention of the SICAR project or that he had fulfilled all his previously agreed objectives. Inspector F gave the claimant a box two mark, a reduction from his previous box five mark, without explanation.
Inspector F refused to discuss the claimant's expressed reservations about the appraisal and asked the claimant to sign the appraisal. The claimant refused to sign it, indicated he would do a detailed report to go with his annual report and lodge a complaint about Inspector F's handling of the appraisal. Inspector F said he would change the mark to a box five and amend the appraisal to a true representation of the claimant's year's work and asked the claimant not to lodge a complaint. The claimant replied he would reflect on it. The appraisal was never completed and the claimant did not lodge a complaint.
Though procedure within the respondent required every employee to have a counter-signing officer to whom an employee could go for advice the claimant's appraiser and countersigning-officer was Inspector F. This was also true for other employees.
(vii) A short time after the appraisal another police officer warned the claimant, confidentially, that he had been present at a discussion between Inspector F and A/Sgt K at which Inspector F stated to A/Sgt K that they had to make life as difficult as possible for the claimant and to get him out of the organisation or to get him to resign as he was intending to marry a Catholic.
(viii) The claimant is a Presbyterian and at that time was engaged to be married to a Catholic.
(ix) Initially the claimant could not believe this and asked for a meeting with Inspector F who was too busy to meet him.
(x) The claimant's hours of work were Monday to Friday 9.00am to 5.00pm but he was expected to work late, if necessary. If a photographer worked late he was permitted to come into work late the next day up to 11.00am. Subsequently the claimant was out late at a crime scene to 5.00am but when he reported for work the next day after 9.00am A/Sgt K reprimanded him and warned him that should he be late again he would put him on a charge, despite the claimant's remonstration that what he had done was permitted.
(xi) A/Sgt K allocated the overtime which was to be divided among the photographers on a fair basis. During July and August 2001 the claimant was regularly given mid-week overtime which necessitated him working until 3.00am or 4.00am but he always reported for work the next day at 9.00am. The claimant's week-end overtime which was paid at time and a half (Saturday) and double time (Sunday) was reduced.
On one occasion A/Sgt K asked Mr G, another civilian photographer if he would do mid-week overtime. The latter replied that he could not do so as it did not suit him. A/Sgt K allocated it to the claimant. When the claimant protested that it did not suit him he was told by A/Sgt K to do it.
(xii) A/Sgt K put pressure on the claimant to do more jobs than others in different parts of Northern Ireland and to complete them before 5.00pm. On one such occasion when pressure was put on the claimant to do extra jobs he returned to base to find that there had been just two jobs to be done that afternoon and there were five photographers available at base.
(xiii) At this time Inspector F and A/Sgt K ceased all unnecessary communication with the claimant.
(xiv) At the direction of Inspector F, invitations to the claimant to photographic events connected with his work, were allocated to other photographers. Some of the mail addressed to him had been opened. When the claimant challenged Inspector F about this he said he would not comment. He said it was nothing to do with the claimant.
(xv) Professor Crane, the State Pathologist, sent a wedding-gift, by post, to the claimant at Knocknagoney police station towards the end of 2001 but he never received it.
A/Sgt K and others made derogatory remarks about the claimant's fiance including referring to her as "a whore". Other staff members made bigoted remarks. Some of the remarks were why was he dating someone from South Armagh or how could he be trusted by his colleagues? These type of remarks were made in the presence of A/Sgt K without sanction or disapproval by him. In fact A/Sgt K encouraged it by making remarks of a personal nature which were unconnected with work.
(xvi) The claimant felt increasingly intimidated and uncomfortable at work and did not know how to deal with the situation. He felt tired, was unable to sleep, had difficulty concentrating, and began to take panic attacks. The claimant remained at work and did his work as best he could until he could endure it no longer.
(xvii) In September 2001 he attended with his GP, who diagnosed stress, prescribed medication and gave him a sick line for four weeks from 12 September 2001. The claimant submitted the sick line to his superiors at Knocknagoney PSNI station.
(xviii) Subsequently he was phoned by A/Sgt K who told him he had to return to work to complete unfinished statements for court. In the course of the conversation A/Sgt K asked the claimant if he was still with "that Catholic bitch" and that he should not return to work if he remained in that frame of mind. The claimant explained that he was unfit for work, had a sick line and that he should have been in receipt of it. A/Sgt K replied that he would take some sort of charge against him for not being at work and fulfilling his duties.
(xix) The claimant received several visits by police officers while he was on sick leave asking him to sign statements for court purposes. Three of the visits related to statements he could not sign because he had not made them or they had been made during his absence.
(xx) The claimant continued to be ill and his sick line was renewed at four weekly intervals.
(xxi) The claimant married his fiance in November 2001. Around December 2001 his father-in-law who lived in south Armagh was brought to Newry PSNI station. He was told that the claimant was a danger to his daughter. The claimant was referred to as a "lunatic". All his work history, which the claimant had kept confidential, was disclosed to his father-in-law who was told the information came from the claimant's line manager.
(xxii) While on a visit to her father in south Armagh police called and advised the claimant's wife that she should no longer be with the claimant.
(xxiii) At the beginning of December 2001 the claimant and his wife were visited at their home, outside Ballymena, by Special Branch. They were advised that the claimant's life was under an immediate and imminent threat and that he should take all precautions associated with that. They stated that they would watch the house. The information was from a paramilitary source, they explained, and his details were in the public domain. At a later date the Special Branch suggested that the information originated from his place of work.
The claimant was advised by Special Branch, that his entire history was in the hands of a terrorist organisation in south Armagh. They also advised him to apply urgently for a firearm under the fast-stream process until the NIO provided security to his home.
(xxiv) Before Christmas 2001 the claimant had two encounters with what he believed were members of terrorist organisations. On the evening on which Special Branch had visited his home for the first time, three men approached him as he and his wife were leaving his home. He believed they had guns though nothing was said.
On another occasion in the countryside outside Ballymena when he and his wife were driving home three cars combined in an apparent attempt to collide with him from the front and side. No collision occurred and he reported the matter to the police that night.
(xxv) Normally a firearm, in these circumstances, is provided within one week. The firearm for the claimant was delayed because Inspector F had done a report that the claimant was mentally ill and incapable of possessing a firearm. Because of the delay the claimant contacted a staff officer in the office of the Chief Constable and he was provided with a firearm immediately.
(xxvi) The claimant also stayed at his parents' home in Glengormley on occasions. He was permitted to park his car at Glengormley police station. He received a phone call from Inspector F telling him to remove his car from Glengormley police station immediately.
Although the practice was for a home visit to a staff member off for three weeks the claimant received no visits.
(xxvii) In late 2000 or early 2001 when the claimant was off on leave an exhibit, prepared by him for court and clearly so marked, was removed from a secure room by a colleague, Mr G, who is a friend of A/Sgt K. It followed a tidying-up procedure carried out by Mr G. He put it in the rubbish bin from where it was recovered. Mr G admitted this to Sergeant J who investigated the matter. It was reported to Inspector F but no action was taken. The claimant believed that this was deliberately done to attempt to get him into trouble.
(xxviii) The claimant remained off work by reason of sickness until July 2003. The sickness scheme operated by the respondent provides a member of staff, off through sickness, with full salary for six months, followed by half salary for three months and no salary thereafter.
The claimant was not advised of these changes or when his salary ceased and only became aware of it when his bank account had a nil balance.
(xxix) In the first half of 2002 A/Sgt K phoned the claimant and told him that he would be charging him with bringing the organisation into disrepute when he returned, if he returned. When the claimant inquired on what ground this charge would be based he was told because he had incurred debt. The claimant had incurred debt as he had no salary. His only source of income was £50 per week Income Support and money from his parents.
During the conversation A/Sgt K asked the claimant if he was still married. When the claimant asked about his personal belongings, locked in his desk and locker, he was told that someone else was using his desk and locker and his belongings were in the bin.
(xxx) From July 2002 to July 2003 the claimant did not have any contact from the police at Knocknagoney. Prior to July 2003 the claimant had submitted an "Inventory of Harassment and Discrimination" to Ann Burnett in Personnel but he heard nothing from Personnel. The claimant followed this up with a number of phone-calls to ask if Personnel would address his grievances and issues.
(xxxi) The claimant was medically assessed on 23 April 2002 when he was found unfit for work. The respondent's Occupational Health and Welfare wanted him medically assessed urgently.
Nothing happened until 30 June 2003 when the claimant attended for a medical examination organised by the respondent. On 3 July 2003 the respondent's Personnel Department wrote to the claimant advising him that the medical assessor had judged him fit to return to work within the following two to four weeks. The letter further advised him that he must attend with his GP for a "closed certificate" and return to work as soon as possible.
(xxxii) The claimant attended with his G.P. and obtained a signing-off certificate, effective from 10 July 2003, which he submitted to the respondent shortly thereafter. The claimant learned that his wife was pregnant with their first child in June 2003. As he had only Income Support of £50 per week and as the respondent was not enabling him to return to work he took a job as a medical photographer with Belfast City Hospital from 21 July 2003. He remained working in Belfast City Hospital until 9 October 2003 when he gave it up, having been advised of his return to work interview with the respondent scheduled for 27 October 2003.
(xxxiii) On 17 July 2003 A/Sgt K wrote to the claimant asking him to return to the respondent property belonging to the respondent which the claimant had. The claimant had the equipment returned to Lisnasharragh after 28 August 2003.
(xxxiv) The claimant had a number of phone conversations with Ann Burnett to discuss the difficulties of going back to Knocknagoney police station and asked to meet with her to discuss grievances or to move him to a suitable location prior to his return to work. Her advice was to return to Knocknagoney and it could be taken from there, as if nothing had happened.
(xxxv) Internal memos in Personnel of 28 August 2003 show a discussion ongoing about inefficiency proceedings being taken against the claimant. Personnel had written to A/Sgt K about this matter on 13 August 2003. The claimant was not advised of this discussion nor was this matter raised with him.
(xxxvi) Valerie Campbell, from Personnel, arranged a back-to-work interview with A/Sgt K for 27 October 2003 at Knocknagoney police station.
(xxxvii) The claimant attended at Knocknagoney police station on 27 October 2003 for a back to work interview with A/Sgt K. A/Sgt McC was to be present during the interview. A/Sgt K dismissed A/Sgt McC from the interview at the start of the interview.
There was not any discussion about the claimant's grievances or issues. A/Sgt K asked him if the Catholic was still around. He further advised the claimant that he would be charging him with bringing the police into disrepute and not completing reports before he went off on the sick.
The claimant's locker and desk were discussed. A/Sgt K advised the claimant that his belongings were in the bin and his desk had been allocated to someone else. A/Sgt K also told him that he did not think he would have been back and indeed he was surprised. He further stated that they would have to do a security review of him.
There was no discussion about a return to work. The claimant was annoyed and hurt. The claimant took a panic attack and had to go to the occupational health doctor, Dr Davies, later on 27 October 2003 who asked the claimant to return to see him on 28 October 2003. Doctor Davies advised the claimant on 27 October 2003 that he had had a severe panic attack brought on by stress.
On 28 October Dr Davies advised the claimant that he should be transferred on medical grounds and the back-to-work interview should not have taken place with A/Sgt K. Dr Davies further advised that the claimant was fit to return to work if the location of work were changed.
(xxxviii) On 11 December 2003 Personnel wrote to the claimant advising him that Dr Davies had advised he be transferred on medical grounds. They suggested that he could move to Maydown. Comment was also made about serious allegations raised by the claimant's wife which had to be addressed. The claimant contacted Mr McQuillan, at Maydown, before Christmas 2003 to advise him that he was ready to return to work and he was told that he would revert to him with a date.
(xxxix) A further return to work interview was held on 13 February 2004 at Maydown with Mr McQuillan, Senior Scientific Manager and Tracey Godfrey from Personnel. The interview did not discuss the claimant's harassment claims. It dealt with two possible locations for the claimant, Maydown or Gough Barracks. It was agreed that he would start back to work on 1 March 2004.
Tracey Godfrey then informed the claimant that an allegation had been made against him that he had been working from 21 July to 9 October 2003 at Belfast City Hospital while off work through sickness and preliminary enquiry was being instigated. He was advised that he was being suspended.
(xl) On 13 February 2004 Tracey Godfrey wrote to the claimant informing him that preliminary enquiries were being instigated on the basis that he engaged in paid employment while on sick leave from the PSNI and without approval or consent.
The claimant replied by letter of 25 February 2004, pointing out that he was deemed fit for work by his medical advisers and held a return to work certificate and it could not be alleged he was in paid work while on sick leave. He further stated that the delay in returning to work was by reason of obstruction by staff at his workplace and serious delays by Personnel; that the harassment at work had not been addressed nor had the discriminatory issues been resolved; that he was not working through the respondent's delay and was not receiving any pay; that Dr Davies can confirm his fitness for work; and that the prohibition on attending any police establishment will prevent him from attending his ongoing occupational health therapy.
By letter of 1 March 2004 Tracey Godfrey advised the claimant that it would be better to leave his other outstanding issues until after the disciplinary matter was finalised. She further advised him that he was suspended on full pay and that he could not attend any PSNI establishment unless instructed by management to do so. He did not receive any pay.
(xli) In response to representations by the claimant about the prohibition on attending police establishments for his occupational health therapy the respondent provided him with a letter of authorisation on un-headed paper which was unsuccessful in achieving admission and the letter was re-issued on headed paper on 2 April 2004 following a further telephone representation by the claimant.
(xlii) On 23 June 2004 the respondent preferred a charge against the claimant that he was employed by the Belfast City Hospital from 21 July 2003 to 9 October 2003 while on sick leave from the PSNI without the approval or consent of the PSNI.
(xliii) On 6 July 2004 the claimant wrote to Mr J Stewart, the respondent's Director of Personnel and Human Resources regarding his unresolved issues of discrimination, harassment and bullying.
Mrs Pamela Feeney, HR Adviser wrote to the claimant by letter of 20 July 2004 inviting him to a meeting from 10.30am to 12.30 pm on Friday 23 July or Monday 26 July 2004 and asked him to let her know by return which date was suitable.
The claimant replied stating that as her letter was sent by second class post that he did not receive it until Friday 23 July 2004 and he could not attend on the 23 July. He explained further that Monday 26 was unsuitable as he wished to be accompanied and no-one could be expected to respond at such short notice. In addition he inquired if she would inform him in writing of any further additional facts that she might require.
Pamela Feeney replied by letter of 26 July 2004 and offered three additional dates Friday 30 July, Monday 2 August or Wednesday 4 August 2004. She warned the claimant that, should he not attend any of the meetings scheduled, his grievance would be closed/terminated on the grounds of unwillingness to co-operate in the investigation process.
The claimant wrote back on 29 July 2004 inquiring if she required any additional information. He explained that her letter arrived by second class post on 29 July 2004 and left him with an unreasonable time to respond to her demands. He also asked for a reasonable period of time to respond to her correspondence.
Mr J Stewart wrote on 29 July 2004 to the claimant advising him that Mrs Pamela Feeney would carry out an investigation into his complaints and that she would be in touch with him to arrange to meet him and clarify the details of his complaint to address his allegations of bullying, harassment and discrimination.
On 30 July 2004 Pamela Feeney wrote to the claimant, rather curtly and added an additional date of 5 August 2004. She sought telephone confirmation of his attendance and repeated the warning she had set out in her letter of 26 July 2004.
The claimant wrote back by letter of 3 August 2004 in which he challenged most of the assertions that Pamela Feeney had made in her letter of 30 July 2004 and asked could he be accompanied by a legal representative or family member as he was not a trade unionist and as he felt a work colleague inappropriate.
By letter of 5 August 2004 Pamela Feeney informed the claimant that his grievance was no longer valid on the grounds of his unwillingness to co-operate in the investigation process. She further informed him that she would so advise Ms Mary McSparron, the independent investigating officer.
(xliv) On 8 October 2004 Mary McSparron, Head of Personnel wrote to the claimant to advise him that she had had the opportunity to examine all the information provided to the investigating officer. She stated that the claimant had not responded to her letters of 11 August and 7 September 2004, which the claimant denied having received. She informed the claimant that she believed the charge of working while on sick leave established and that it constituted gross misconduct and that the appropriate penalty was to terminate his contract with immediate effect. She further informed him that he would be paid salary in lieu of one month's notice and any outstanding holiday entitlement. The claimant says he received neither payment. The claimant was also advised of his right of appeal to the Northern Ireland Policing Board (NIPB).
(xlv) Through his solicitor, Messrs Napier & Sons, the claimant appealed his dismissal on 29 October 2004 to the NIPB. The claimant was required to put his whole case in writing to the NIPB before the hearing. Counsel was engaged and a submission was prepared for the NIPB, signed by the claimant and dated 15 December 2004. In the submission the claimant accepts he had been guilty of misconduct i.e. that he had been working without having sought approval. He advanced mitigating circumstances and felt the penalty too severe.
On 26 April 2005 the date for the hearing of the appeal was scheduled for mid-June 2005. The claimant was to submit his full statement by 23 May 2005.
On 19 May 2005 Messrs Napier & Sons came off record and were not replaced as the claimant could not afford legal representation.
The claimant wrote to the NIPB on 1 June 2005 submitting a number of documents, including medical evidence, and indicated he would represent himself with the assistance of his wife, if that were permitted.
The appeal was heard by the NIPB on 20 October 2005 and he was represented by Mr M Storey MLA. The NIPB found the penalty to dismiss was overly harsh. It recommended a lesser penalty and that he should be re-instated at an appropriate location.
The respondent refused to reinstate the claimant.
(xlvi) In early 2005 Mr I Paisley Jnr MLA raised the claimant's case informally with the Chairman of the NIPB and was advised to await the outcome of the appeal. Following the determination of the appeal Mr Paisley raised the claimant's case formally with Mr J Stewart Director of Human Resources with the respondent. Mr Paisley met with Mr Stewart and ascertained from him that there was nothing in the claimant's background that caused a vetting or security issue.
(xlvii) On 17 January 2006 Mr Rodney McGucken the respondent's Head of Personnel wrote to the NIPB rejecting its findings and recommendations.
(xlviii) The claimant wishes to return to his job as a civilian photographer with the police.
The Law
(ii) Religious/political discrimination is to treat someone less favourably than another on the ground of religious belief or political opinion (Article 3(2)(a) Fair Employment and Treatment (Northern Ireland) Order 1998).
(iii) To establish that a dismissal is not unfair an employer must establish the reason for the dismissal and that it was one of the statutory reasons that can render a dismissal not unfair. If an employer satisfies both of these requirements then whether the dismissal was fair or not depends on whether in the circumstances the employer acted fairly and reasonably in treating the reason as a sufficient reason for dismissing the employee.
(iv) Where an employer dismisses an employee for misconduct he must have a reasonable belief that the employee has committed an act of misconduct after having carried out a reasonable investigation (to include a reasonable disciplinary hearing and appeal) and dismissal must be within the range of reasonable responses.
(v) A breach of contract is where any term or condition, actual or implied, of the employee's contract of employment has been breached by the employer.
Application of the Law and Findings of Fact to the Issues
Unfair Dismissal
(ii) The Tribunal is satisfied that the reason advanced for the claimant's dismissal is misconduct and that that reason is one of the statutory reasons that can render a dismissal fair.
(iii) The Tribunal is not persuaded that the respondent has acted fairly and reasonably in all the circumstances in dismissing the claimant. In so concluding the Tribunal finds that the disciplinary process was seriously flawed. In particular it had regard to the following matters;-
(a) The claimant was not invited to attend a meeting with the disciplining person, Mary McSparron, before any action was taken. The respondent's letter of dismissal of 8 October 2004 refers to written invitations to the claimant of 11 August and 7 September 2004. However the claimant denied ever having received such correspondence. No-one appeared before the Tribunal to challenge that assertion from the claimant nor have such letters appeared in the considerable correspondence before the Tribunal.
(b) In the letter of dismissal Mary McSparron concludes that "…the trust between yourself and this organisation has broken down so significantly as to prevent further continuance of your contract". Yet the claimant was not charged with a breach of trust nor invited to comment on that charge.
(c) The claimant contends that the basis for the charge is fallacious i.e. that between the 21 July and 9 October 2003 when he worked for Belfast City Hospital he was not on sick leave. He says that he held a closed certificate from his doctor effective from the 10 July 2003 which he had submitted to the respondent. He has made this case to the respondent from 25 February 2004 before any charge was preferred against him.
At the request of the Tribunal the claimant asked his G.P. to provide a list of all sick lines issued to him from September 2001. He advised the Tribunal that she could not provide such a list without going through every sick line issued by the practice which she considered too onerous.
Dr Davies, the occupational health doctor, stated that the claimant was fit to resume his duties within two to four weeks from 30 June 2003.
No-one appeared before the Tribunal to challenge the claimant's evidence which the Tribunal accepted.
(d) There is not any indication how Mary McSparron arrived at her decision on the appropriate penalty or how she dealt with mitigating factors.
(e) While the claimant was offered an appeal and had an appeal hearing before the NIPB it was meaningless as the respondent is not bound by its finding and indeed it rejected its recommendation to impose a less harsh penalty and re-instate the claimant to an appropriate location.
(iv) In all the circumstances the dismissal was unfair.
(v) Given that the claimant never had a proper disciplinary hearing and in view of the other matters set out above it cannot be said that had the respondent operated proper procedures the claimant would have been dismissed in any event.
(vi) In light of the medical recommendations of the occupational health doctors that the claimant should work at a place other than Knocknagoney the Tribunal does not order reinstatement.
However the Tribunal orders that the claimant be re-engaged with the respondent, as a civilian photographic officer, at a location to be agreed between him and the respondent and at a rate of remuneration appropriate to that grade. It further orders that the respondent pay to him all remuneration due from 8 October 2004 to the date of re-engagement with all his rights and privileges intact as though he had never been dismissed. This is to be completed by 16 July 2007.
The Tribunal had regard to the evidence from Ms McGrath of Harbinson Mulholland, forensic accountants, in relation to the figures for earnings that the claimant would have earned.
Discrimination
(vii) To succeed in a claim for discrimination on the grounds of religious belief or political opinion a claimant must show that the respondent treated him less favourably than he treated or would treat other persons on the grounds of religious belief or political opinion.
In comparing the cases of persons of different religious belief or political opinion the relevant circumstances in the one case must be the same or not materially different from the other.
(viii) In Shamoon v Chief Constable of the RUC (HL) [2003] ICR 337 the House of Lords gave helpful guidance to tribunals faced with the task of assessing whether a claimant has established the evidentiary ingredients to prove discrimination. Lord Nicholls stated at page 342 paragraph 12;-
"The most convenient and appropriate way to tackle the issues arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case. There will be cases where it is convenient to decide the less favourable issue first. But,…when formulating their decisions employment tribunals may find it helpful to consider whether they should postpone determining the less favourable treatment issue until after they have decided why the treatment was afforded to the claimant."
In his judgement Lord Nicholls had earlier stated;-
"This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter the application fails. If the former, there will usually be no difficulty in deciding whether the treatment afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others." (page 342 at paragraph 11)
(ix) In considering the less favourable treatment element Lord Hope stated in Shamoon at page 356 paragraph 54;-
"…The question is whether the way in which the applicant was in fact treated was different from the way the other chief inspectors would have been treated if they too were persons over whom Superintendent Laird had responsibility and the complaints and representations had been directed against them. If the answer to that question is yes, and there is no other explanation, it can be inferred that she was treated less favourably than they would have been on the ground of her sex."
(x) In Nagarajan v London Regional Transport [1999] ICR 877, 884 Lord Nicholls said;-
"…Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances."
(xi) In Shamoon in discussing the evidential value of comparators Lord Scott stated at page 375 paragraph 116;-
"…But in the absence of comparators of sufficient evidential value some other material must be identified that is capable of supporting the requisite inference of discrimination. Discriminatory comments made by the alleged discriminator about the victim might, in some cases, suffice. Unconvincing denials of a discriminatory intent given by the alleged discriminator, coupled with unconvincing assertions of other reasons for the allegedly discriminatory decision, might in other cases suffice…."
Lord Rodger, when discussing the same issue, stated at page 383;-
"…In a contested claim before a tribunal the applicant has to prove how her employer would have treated a male employee in the circumstances which, ex hypothesi, have not actually occurred. That male employee is often referred to as a "hypothetical comparator". In some cases the applicant's task may be relatively easy. For example, she may be able to point to an established policy or practice of the employer that involves treating women less favourably than men in virtually all circumstances. By proving the existence of the policy or practice the applicant may hope to satisfy the tribunal that, in the (unique) situation in which she found herself, her employer treated her less favourably than he would have treated a male employee if the same had happened to him. In many cases, however, the applicant leads more general evidence and invites the tribunal to find facts from which it can infer that her employer treated her less favourably than he would have treated a male employee in the same circumstances. (paragraph 140)
….Suppose, for instance, that an employer created a new high-level management post and, when refusing to appoint the female applicant to that post, he said that he was doing so because, with a largely male workforce, he did not want a woman at that level of the management structure. The employer's very words would show that he was treating the applicant less favourably than he would have treated a similarly qualified man who applied for the high level job. Therefore, even although this was the very first time that the appointment fell to be made, by proving what the employer said the applicant could establish that he had treated her less favourably than he would have treated a man, on the ground of sex.(paragraph 142)
…Discrimination is rarely open and may not even be conscious. It will usually be proved only as a matter of inference……The important point is that there are no restrictions on the types of evidence on which a tribunal can be asked to find the facts from which to draw the necessary inference." (paragraph 143)
(xii) In determining this application, following the suggested approach set out in Shamoon, the Tribunal considered firstly why the treatment was afforded to the claimant.
(xiii) The decided cases indicate that it is usual, in assessing whether discrimination has been proved on proscribed grounds, for tribunals to rely on inferences and deductions from facts found because it is unusual for direct evidence of discrimination to be available.
In this application the Tribunal is satisfied that there is cogent direct evidence of why the treatment was afforded to the claimant.
The reason why the treatment was afforded to the claimant is clear. It was because he was engaged to and subsequently married a Catholic, a proscribed ground.
This was the declared reason for the treatment at the outset and it remained the ground for the actions thereafter, as is set out above. The decision was made to attempt to force the claimant out of the police or at least from Knocknagoney police station. On foot of that decision steps were taken over a number of years to bring that about.
(xiv) The fact that the religious belief was that of the claimant's wife does not make any difference (Meek v Fire Authority for Northern Ireland and Another 50/90 FET)
(xv) As Lord Nicholls advised in Shamoon, if the treatment afforded to the claimant is on a proscribed ground which is the foundation of the application, as it clearly was in the instant application, then there will usually be no difficulty in deciding whether the treatment afforded to the claimant on the proscribed ground was less favourable treatment than was or would have been afforded to others.
The Tribunal is also mindful of the comment of Lord Nicholls in the Nagarajan case where he said;-
"…Treatment, favourable or unfavourable, is a consequence which follows from a decision."
(xvi) The circumstances of the instant case are analogous to the example set out in Shamoon by Lord Rodger at page 384 at paragraph 142;-
"….Suppose, for instance, that an employer created a new high-level management post and, when refusing to appoint the female applicant to that post, he said that he was doing so because, with a largely male workforce, he did not want a woman at that level of the management structure. The employer's very words would show that he was treating the applicant less favourably than he would have treated a similarly qualified man who applied for the high level job. Therefore, even although this was the very first time that the appointment fell to be made, by proving what the employer said the applicant could establish that he had treated her less favourably than he would have treated a man, on the ground of sex."
The evidence before the Tribunal was that the declared aim of excluding the claimant from the police organisation, or at least Knocknagoney police station, was that he was engaged to be married to a Catholic. These very words show that the respondent was treating the claimant less favourably than it would have treated a similarly qualified photographer who was engaged to someone who was not Catholic.
This approach has been recognised by the English Court of Appeal in Sidhu v Aerospace Technology Ltd (CA) [2001] ICR, 167 at 176 F-H. In considering a claim of direct racial discrimination Peter Gibson LJ stated at page 176 F-H;-
"…
It is clear therefore that what the statute requires in order to find direct evidence of racial discrimination under section 1(1) is that the complainant must show that he has been treated less favourably by the discriminator than the discriminator treats or would treat other persons in the same circumstances.
But in certain cases the comparison need not be demonstrated by evidence as to how a comparator was or would be treated, because the very action complained of is in itself less favourable treatment on sexual or racial grounds. Thus in a sex discrimination case, if it can be shown that the less favourable treatment meted out to a woman was only because she was a woman, it follows that the woman was treated less favourably than a man (Porcelli v Strathclyde Regional Council [1986] ICR 564). In the jargon of employment lawyers that conduct is gender-specific. So also, if a person is harassed or abused because of his race, that conduct is race-specific and it is not necessary to show that a person of another race would be treated more favourably (Burton v De Vere Hotels Ltd [1997] ICR 1)…."
(xvii) In this application the claimant does not rely on an actual comparator. The claimant relies on how the respondent would have treated others. The evidence to support that comes from the treatment afforded to the claimant following its decision to force him out of the organisation or at least Knocknagoney police station.
(xviii) The actions and omissions of Personnel within the respondent set out above, and which are not in dispute, continued the less favourable treatment. The Tribunal had particular regard to the following matters;-
(a) Prior to July 2003 the claimant sent an Inventory of Harassment and Discrimination to Ann Burnett in Personnel but nothing was done about it. He followed this up with telephone calls to no avail.
(b) When Dr Davies found the claimant fit to return to work within two to four weeks of 30 June 2003 the claimant discussed with Personnel his return to work, his difficulties with Inspector F and A/Sgt K and the possible move to a different location. Nothing was done.
(c) Personnel arranged a back to work interview for the claimant with a person he alleged was discriminating against him.
(d) Despite the medical reports from the occupational health doctors drawing attention to the claimant's work difficulties nothing was done to address them.
(e) When the claimant raised the work difficulties again at the second back to work interview on 13 February 2004 nothing was done.
(f) The claimant wrote complaining about discrimination and harassment to Personnel on 25 February 2004, 16 March 2004, 7 April 2004 and 6 July 2004. It was not until 20 July 2004 that the respondent made any attempt to deal with the claimant's complaints.
(g) The respondent demonstrated a complete lack of urgency in dealing with the claimant's complaints of harassment and discrimination
(h) The disciplinary procedure followed by Personnel was flawed as is set out above.
(xix) The Tribunal is satisfied that the matters set out at (xviii) above, in the circumstances of this case, occurred on the grounds of religious belief i.e. the claimant had married a Catholic.
(xx) The Tribunal is satisfied, on the balance of probabilities that the respondent has discriminated against the claimant on the grounds of religious belief.
(xxi) This discrimination led to the claimant's absence from work by reason of anxiety, depression and panic attacks and to considerable distress which was apparent to the Tribunal as he gave his evidence, without having to endure the rigours of cross-examination.
(xxii) By reason of the religious discrimination suffered by the claimant he has lost income and endured severe injury to feelings.
The Tribunal awards the claimant compensation made up from his loss of earnings up to 8 October 2004 and damages for injury to feelings which the Tribunal assesses at £20,000.
The claimant received his full pay for twenty-six weeks from 12 September 2001 to 13 March 2002 and half pay for thirteen weeks from 14 March to 13 June 2002.
The claimant worked at Belfast City Hospital from 21 July to 9 October 2003 and did not suffer any loss of earnings during that period.
The annual value of the pension to the claimant is £10,169. If the claimant suffered a loss of his pension it is recoverable. Though no specific evidence was given on the point the Tribunal assumes that the respondent paid the claimant's pension contributions until he was dismissed on 8 October 2004. As the Tribunal has ordered re-engagement with all rights and privileges restored his pension or pension costs from 8 October 2004 to date should be paid.
The Tribunal had regard to the forensic accountant's report to determine salary payable to the claimant with appropriate increases.
Compensation for religious discrimination
Loss of earnings
14 March 2002 to 13 June 2002
£1,229 x 3 = £3,687 x .5 = £ 1,843.50
14 June 2002 to 20 July 2003
£292.15 x 57.29 = £ 16, 737.27
10 October 2003 to 12 September 2004
£300.92 x 48.29 = £ 14,531.43
13 September 2004 to 8 October 2004
£309.92 x 3.57 = £ 1,106.41
= £ 34, 218.61
Benefits Received
26 March 2002 to 8 October 2004 = £ 9,494.99
Total loss of earnings = £ 24,723.62
Injury to feelings = £ 20,000.00
Compensation for religious discrimination = £ 44,723.62
(xxiii) By reason of the matters set out above the respondent breached the claimant's contract of employment by reason of the breach of the implied term of trust and confidence.
Chairman:
Date and place of hearing: 27, 28, 30 November, 20 December 2006 and 11January 2007, Belfast.
Date decision recorded and issued to parties:
