FAIR EMPLOYMENT TRIBUNAL

CASE REF:  24/06FET

CLAIMANT:		William David Frazer

RESPONDENTS:		1.  Mr David Moore
				2.  Mr Robin Masefield
				3.  Northern Ireland Prison Service

Constitution of Tribunal:
Chairman:			Mr Buggy

Members:			Mr Margrain
				Mr McGuire

Appearances:
The claimant appeared in person.
The respondent was represented by Mr Peter Coll, Barrister-at-Law, instructed by the Crown Solicitor’s Office.

DECISION

The unanimous decision of the Tribunal is that the claimant’s claim of religious discrimination is not well founded and accordingly it is dismissed.

REASONS

 1.	In March 2005, the claimant was a prison officer, based at the Healthcare Centre at Maghaberry prison.  On 14 March 2005, he invoked the Prison Service’s internal grievance procedure, for the purpose of complaining about the conduct of another prison officer, (who will be referred to as “X” in this Decision).

 2.	The claimant objects to the manner in which the grievance was dealt with on behalf of the Prison Service (“the Service”) by Mr David Moore, and by Mr Robin Masefield, both senior officials of the Service.

Some key statutory provisions

 3.	Statutory provisions in respect of religious discrimination in the field of employment are set out in the Fair Employment and Treatment (Northern Ireland) Order 1998 (“the Order”).

 4.	For the purposes of the Order, “discrimination” includes discrimination on the ground of religious belief.  (See Article 3(1) of the Order).  Article 2(1) provides that, for the purposes of the Order, an “act” includes a deliberate omission.  The same article provides that, for the purposes of the Order, references to a person’s religious belief include references to his supposed religious belief and also include references to the absence or supposed absence of any, or any particular, religious belief.

 5.	Article 3 provides that, for the purposes of the Order, a person commits unlawful discrimination against another if he does an act in relation to that other which is unlawful by virtue of any provision of Part III of the Order.  Article 19 is contained within Part III.

 6.	Article 19 provides that it is unlawful for an employer to discriminate against a person, in relation to employment in Northern Ireland, by dismissing that person or by subjecting him to any other detriment.  (See Article 19(b)(iii) of the 1998 Order).

 7.	Article 3(2A) of the Order provides that a person discriminates against another person on the ground of religious belief in any circumstances relevant (for the purposes of the employment provisions of the Order) if, on the ground of religious belief, he treats that other less favourably than he treats or would treat other persons.

 8.	Article 3(3) of the Order provides that, in considering whether there has been less favourable treatment (for the purposes of the relevant definition of discrimination):

	“A comparison of the cases of persons of different religious belief … must be such that the relevant circumstances in the one case are the same, or not materially different, in the other”.

The internal grievance complaint

 9.	The claimant is a Protestant.  At the material time, X was a Roman Catholic (“a Catholic”).

10.	The claimant initiated the Service’s internal grievance procedures by sending an internal memorandum dated 14 March 2005.  That memorandum was entitled “Harassment/Sectarianism“.  The content of that memorandum was as follows:-

	“Sir, at about 10.30 am today 14/3/05 I was walking down the main administration corridor in the Healthcare Centre when I was approached by [X].  He came at me in an aggressive manner, with his finger wagging.  He moved tight up against me, so close I could smell his bad breath.  He said in a low, slow [threatening] voice “you never filled in those files”.  The files in question are prisoner personal files located in the wards of the Healthcare Centre where I had spent a morning the previous Thursday.  The files are normally filled in daily by the Ward’s staff, as they work with and observe these individuals constantly.  When I replied “No” to [X] he appeared as if he was getting into a rage and with a raised and aggressive voice said “I told you to fill in these fucking files”.  I immediately protested at this outburst of inappropriate use of language and asked [X] to calm down and never to use such disgusting language again when speaking to me.  [X] turned away from me and I asked him to remain as I would have liked to explain my reasons for not adding to these files.  I followed him down the corridor and asked him to step into an empty treatment room where I could discuss this matter in a calm and civilised manner and to ask why he had such a problem with these files.  We had [just walked into] the treatment room, I closed the door, and it started again.  “I’m in charge down the Ward, and when I tell you to do something you will fucking well do it” he shouted at me with his finger pointing and [gesturing].  Again I protested about the language, asked him to settle himself and to sit down as I thought he was about to explode.  When again I tried to explain myself he continually spoke over me using more inappropriate language.  This lasted a few minutes until I stood up and stated that I’ve had enough of his childish and inappropriate behaviour and was going immediately to speak to the [Principal Officer].  He then stomped towards the door and as a parting [gesture] said “I’ll sort you out you fucking Orange bastard”.  The matter was brought to the PO, who in turn [accompanied] myself, when we went to speak to Governor Treacy”.

	Sir, I feel very aggrieved at what has taken place and I have lost all respect, trust and confidence in this individual.  I feel unable to bring myself to work with this man and would ask if you could deal with this grievance as soon as possible.

	I have been wronged and will not be forced from my group or establishment by someone that has no respect for others religion and who uses such inappropriate language as a means of [coping] when under pressure”.

11.	Accordingly, in essence, the internal grievance complaint against X can be summarised as follows:

		(1)	The claimant asserted that X had used obscene language.

(2)	The claimant asserted that X had behaved in an intemperate and aggressive manner.

(3)	It was alleged that X had spoken to the claimant in insulting and sectarian terms by referring to the claimant as an “Orange bastard”.  (Below, we refer to this allegation as “the sectarian remark allegation”).

12.	Obviously, the sectarian remark allegation was by far the most serious of the three matters complained of.

The claim and the defences

13.	For the purpose of these proceedings only, the Service admits that the claimant was a person who was employed within the Service.

14.	In these proceedings, the claimant’s central complaint arises out of the fact that the sectarian remark allegation was not upheld at any stage of the internal grievance procedure.

15.	The claimant asserts that, if it had not been for various (specified) deficiencies in the manner in which the internal grievance was addressed, the latter allegation would inevitably have been upheld; the failure to uphold that allegation, and those various specified procedural deficiencies, constitute unlawful religious discrimination which amount to “… any other detriment” within the meaning of Article 19(1) of the Order.  (See paragraph 6 above).

16.	The claimant has not identified any actual comparator.  Instead, he has asserted that he has been treated less favourably, in the relevant respects, than the respondents would have treated a person of a different religion in circumstances which were the same, or not materially different, from the circumstances which provided the factual context to the internal grievance against X.

17.	The claimant asserted that he had been subjected to that less favourable treatment either because he is a Protestant and/or because X, at the material time, was a Catholic.

18.	The claimant asserts that all of the respondents have consciously discriminated against him, on the ground of religion, by failing to adequately address and decide the relevant internal grievance, because it was politically unattractive to make a finding of sectarian harassment against a Catholic.

19.	The respondents defend these proceedings mainly on the following grounds:-

	(1)	According to the respondents, the grievance was properly and fairly addressed, and the outcome was also fair.

	(2)	In any event, according to the respondents, no relevant act or omission was affected in any way by the religion of the claimant or the religion of X.

The evidence

20.	We received oral testimony from the following witnesses on behalf of the claimant:-

(1)	the claimant himself,

(2)	Governor I. Millar, and

(3)	Nursing Officer Paul Rooney.

21.	We received oral testimony from the following witnesses on behalf of the respondents:-

(1)	Governor David Eagleson;

(2)	Mr Brian Hawe, Personnel Manager at Maghaberry Prison;

(3)	Mr David Moore, a Deputy Principal within the Service; and

(4)	Mr Robin Masefield, the Director of the Service.  (In that capacity, Mr Masefield is the person with overall responsibility for the work of the Service).

22.	We also saw the contents of an agreed bundle of documents.

23.	We told the parties that, if they wanted us to have regard to the contents of any particular document, it would be necessary for them to draw that particular document to our attention.

The facts

24.	We now set out finding of fact which are relevant to the issues which we have determined.

25.	The relevant grievance procedure is set out in a 1995 document.  From that document, it is clear that the procedure involves three stages, followed by an appeals mechanism.  In this case, there was no adjudication at Stages 1 or 2.  Instead, Stage 3 was the first stage at which adjudication occurred.  Mr David Moore (“Mr Moore”) conducted that Stage 3 process.

26.	Paragraph 9 of the document provides that there will be an endeavour, at Stage 3, to resolve the matter within a maximum time of seven days.  Secondly, paragraph 9 provides as follows:-

		“If the matter cannot be resolved within this period Prison Personnel Division will arrange a meeting of those directly concerned ... and will notify the [officer] concerned of the outcome in writing within a maximum time of 14 days from the date of referral to this stage”.

27.	Appeals in relation to the outcome of Stage 3 were provided for at paragraph 10 of the 1995 document.  Paragraph 10 provides as follows:-

		“10.  Where the matter has not been resolved to the satisfaction of [the officer] concerned there is a right of appeal to the Controller of Prisons and ultimately to the Deputy Under Secretary of State, Northern Ireland Office, Belfast.  The appeal should be made in writing within 14 days of receipt of the written outcome under Stage 3”.

28.	In our view, it is clear that the 1995 document envisaged a relatively informal process of adjudication under the internal grievance procedure (as distinct from a formal, quasi-judicial procedure).

29.	The version of events being put forward by X emerged in an internal memorandum which X sent to PO Audrey Garvin on 14 March 2005.  In the course of that memorandum, X, commented as follows:-

		“I am writing to you to inform you of an incident which occurred between myself and [the claimant].  This incident happened on Monday 14 March 2005 in the main corridor of the Healthcare Centre HMP Maghaberry.  As Acting Senior Nursing Officer of the Inpatient Unit at the Moyola Suite, I approached [the claimant] to ascertain why he had not carried out duties allocated to him on Thursday 10 March 2005.

		During this discussion, [the claimant], in my opinion, became quite abusive towards me stating “[…] Why don’t you crawl back under your stone and wind your neck in”.

		To be sure he said this I replied “What did you say?” and [the claimant] stated “I said crawl back under your stone and wind your neck in”.

			…

		I entered the treatment room at this point, staying near the door, and stated “What did you say?”  To this [the claimant] replied “You’ve got no balls.  I have been in this game too long to be talked to by the likes of you.”  At this point I did feel quite threatened and also annoyed at being spoken to by [the claimant] so I turned around, with my back to [the claimant], and began to leave the room.

		At this point, I must state, that in a moment of annoyance I did state “Away to fuck”.  I, at this point, stated this under my breath and this was not directed at anyone.  I also at this point was just outside the door, into the corridor and my back was to [the claimant] …”

30.	Accordingly, in adjudicating in respect of this grievance, Mr Moore was faced with a situation in which one of the claimant’s three grievance allegations had already been admitted by X (because X had admitted, in the statement of 14 March, that he had used obscene language in his interactions with the claimant).  Therefore, the question of whether X had used obscene language was not really an issue in the grievance.

31.	The claimant freely admitted that he had made the remarks about X crawling back under his stone and winding his neck in.  Therefore, Mr Moore was faced with clear evidence that, on the occasion in question, the claimant had himself acted in an inappropriate and intemperate manner.

32.	Before Mr Moore had adjudicated in respect of the grievance, the claimant’s constituency MP, Mr Jeffrey Donaldson, wrote to Mr Masefield, on 14 October 2005, about the case.  Mr Donaldson’s letter shows that the central thrust of the claimant’s grievance was an allegation of sectarian abuse.  Mr Donaldson pointed out in his letter:

		“I am writing on behalf of my constituent Mr David Frazer regarding his concerns about the delay in completing an investigation into a complaint that he has lodged against [X] ... who he alleges subjected him to sectarian abuse in his place of work”.

33.	On 18 October Mr Moore met with the claimant, as part of Mr Moore’s investigation of the grievance.  In the course of that meeting, the claimant drew Mr Moore’s attention to the fact that there had been previous complaints, from others, about X’s abrasive attitude and his use of obscene language.  An official note of that meeting accurately records the fact that Mr Moore told the claimant that the claimant’s suggestion that there had been other complaints about X would be considered to establish if they were relevant.

34.	The claimant did not allege at that meeting, nor has he alleged at any time subsequently, that X had any previous record of making sectarian comments.

35.	During the course of the 18 October meeting, the claimant also identified other potential witnesses in respect of the incident on 14 March 2005.  That part of the discussion was accurately recorded at paragraph 9 of a note of a meeting, in the following terms:

		“9.  Possible witnesses were then discussed.  SO Brown was 5-6 feet away and it is likely she heard exchanges between the two men.  If she was looking out of her office she could have seen any finger pointing.  There was an officer in the control pod who could have seen the witnesses but actually heard it.  His name is Geordie; surname unknown.  Mr Frazer stated he asked others but no-one saw anything.  One other person who was aware of the incident was Anne Isbister who worked in the pharmacy.  She said she heard raised voices but didn’t see anything.  Mr Frazer also recalled a nurse, Tara Sanderson who didn’t witness the incident but was aware that he was annoyed about something”.

36.	Mr Moore correctly concluded that none of those individuals were witnesses who were of substantial importance in deciding whose version of events to believe in respect of the alleged sectarian remark.

37.	The note of the 18 October meeting also refers to the claimant’s reference to X’s previous “record”.  This was accurately recorded at paragraph 15 of the note of the meeting, in the following terms:

		“15.  Mr Moore than asked if David Frazer wished to add anything more.  Mr Frazer stated that there were lots of other issues happening within the hospital.  He was asked to elaborate and responded as follows -

				Dr Boreland had been on sick leave absence for 6 months due to an incident with [X].  He will no longer work with [X] (Dr Boreland) was out of time in lodging a complaint).

					There were 3 complaints from prisoners;

					[X] was not allowed to work with prisoners for a time;

			there was an incident on the wards involving other members of staff.  They asked to speak to [X] and each of them told him of his unacceptable behaviour and language.  They warned him that a paper was written and would be submitted if his behaviour did not improve.  Nurse Paul Rooney could clarify this.

					PO Garvin could confirm the above incidents.”

38.	At the end of the meeting, Mr Moore promised that he “… would meet with all concerned.”

39.	Mr Moore did make some enquiries in relation to the matters touched upon at paragraph 15 of the note of the meeting.  However, those enquiries were rather half-hearted and were not pursued to definitive conclusions.  He did not speak to Dr Boreland.  He did not speak to Paul Rooney.  

40.	If he had pursued those enquiries thoroughly, he would have found that there was a significant record of previous complaints against X, in which it had been alleged that X had behaved aggressively and had used obscene language in the workplace.  However, as the claimant has freely admitted in his testimony to us, the outcome of any such enquiries would not have included any conclusion that the claimant had previously made sectarian remarks, because, as far as the claimant knows, there had been no past complaints against X in relation to that particular type of misconduct.

41.	Having received oral testimony from Mr Moore, we are satisfied that he refrained from exhaustively investigating the past record issues because he genuinely considered that the complaints referred to at paragraph 15 would not be of assistance to him in resolving the differences between the two versions of events which had been put forward in relation to the March 2005 incident.

42.	Having carefully considered this aspect of Mr Moore’s testimony, we are satisfied that he would have behaved the same way if X had been a Protestant, or if the claimant had been a Catholic.  

43.	We note that even the senior judiciary have had some difficulty in resolving the question of whether, and to what extent, it is appropriate to take account of an individual’s previous history, in determining whether to accept his or her version of events in relation to a particular incident.  In that connection, we drew the attention of the parties to the decision of the House of Lords in O’Brien -v- Chief Constable of South Wales Police [2005] UKHL 26.  As Lord Bingham pointed out in the course of his speech in that case (at paragraph 2 of the judgement), the general area of “similar fact“ evidence has proved to be:

		“… a contentious and uncertain area of the law, particularly in criminal cases but also in civil cases …”.

	In the same speech, he implied that, at the date of the O’Brien decision, the general topic of similar fact evidence was still “shrouded in mystery”.

44.	In the same speech, he highlighted some significant arguments against admitting similar fact evidence (evidence of, an alleged perpetrator’s previous record) which are likely to be of some importance to a conscientious fact-finder.  (See paragraph 6 of the judgment).  The arguments which he listed there can be paraphrased as follows:

		(1)	The omission of such evidence distorts the hearing and distracts the attention of the decision-maker, by focusing attention on issues collateral to the issue to be decided.

			(2)	The evidence may cause unfair prejudice.

	(3)	The admission of such evidence puts a burden on the resisting party, in terms of time, cost and personal resources.

	(4)	The admission of such evidence is likely to lengthen any hearing, with the increased cost and stress inevitably involved.

		(5)	There is potential prejudice to witnesses called upon to recall matters long closed, or thought to be closed.

	(6)	There may also be problems regarding the loss of documentation, or the fading of recollections.

45.	Mr Moore’s decision at Stage 3 of the grievance procedure was set out in a document which was dated 24 November 2005.  The key conclusions of that document, for present purposes, are those which were set out at paragraphs 12 to 15 of the document:

		“12.  I find no evidence to support [the claimant’s] contention that [X] was aggressive or abusive to him when he initially [our emphasis] spoke to him in the corridor about duties he had not carried out.  SNO Brown said that [X] did not sound threatening or aggressive and had spoken to [the claimant] in a civil tone.  In addition, both PO Garvin and Ms Isbister said they would expect to hear raised voices given the location of their respective offices but neither heard anything.

			…

		14.  There were no witnesses to the exchange in the treatment room and so what, if anything, happened is a case of one word against the other.  In the circumstances I am unable to substantiate [the claimant’s] contention that [X] shouted and pointed his finger at him or used inappropriate language including the alleged sectarian remark.

		15.  Whilst I accept that [X] had intended to raise this matter in an appropriate fashion I believe he should have spoken to [the claimant] privately about the matter rather than in a place where others could hear the conversation.  I also note that [X] admitted that he said “away to fuck” as he left the treatment room and accepted that the remark was inappropriate.  I shall be recommending that [X] is given advice on both these issues by his line manager.”

46.	Paragraph 15 of the Moore adjudication constitutes a recognition that X had not dealt with the interaction appropriately, and that X had used unacceptable obscene language in speaking with the claimant.

47.	The allegation regarding the making of the sectarian remark is a serious allegation.  If an allegation is serious, cogent evidence is usually required before such an allegation can properly be upheld.  Against that background, we consider that Mr Moore’s central conclusion (that the sectarian remark allegation was not substantiated) is a conclusion which was reasonable in all the circumstances, in light of all the evidence actually and potentially available to Mr Moore.

48.	We are satisfied that, even if Mr Moore had made all the additional enquiries which were urged upon him by the claimant, the outcome in relation to the sectarian remark allegation would have been no different.  Mr Moore would still have been left in a situation in which the question of whether the relevant remark had been made could only be answered by deciding between two widely differing versions of events being put forward by the only two people who were present at the relevant time.

49.	If X had been proven to have engaged in sectarian misconduct in the past, that would have been a significant relevant matter to be taken into account by Mr Moore in adjudicating upon the claimant’s grievance in this instance.  However, there was no proof of previous misconduct of that type.  Even in the absence of proof, if there had been previous allegations of sectarian misconduct, these might have been matters which Mr Moore ought to have taken into account.

50.	However, there were no previous allegations of sectarian misconduct.  The previous allegations related to a tendency to verbal aggressiveness and a tendency to use obscene language.  Any such tendencies, in our view, are of very limited probative value in the context of an issue as to whether an individual is a person who is likely to make sectarian remarks in the workplace.

51.	In any event, it is necessary to remember the relatively informal procedure in which Mr Moore was engaged.  (See paragraph 28 above).

52.	Against that background, and for those reasons, we think that Mr Moore was not acting unreasonably in failing to pursue enquiries in respect of the past record of X.

53.	We think however that the claimant was probably misled by remarks which had been made during the course of his 18 October meeting with Mr Moore.  (See paragraphs 33 and 38 above).  We think that, because of those remarks, the claimant was under the misapprehension that all of the “witnesses” identified by him would be interviewed by Mr Moore.  Neither the claimant nor Mr Moore is to blame for that misunderstanding.

54.	The claimant appealed against the Stage 3 decision to Mr Masefield.  That appeal was unsuccessful.  Mr Masefield’s decision was contained in a letter dated 12 January 2006.  In that letter, he stated that he believed that Mr Moore had come to reasonable conclusions in light of his investigations.  He also added the following:

		“Nor would it have been appropriate to interview others whom you stated have complained about [X] in the past”.

	The claimant made a further appeal to Mr Nick Perry, a Senior Director in the Northern Ireland Office.  Mr Perry upheld the previous decisions.  

55.	Mr Masefield gave evidence in these Tribunal proceedings.  Having considered his testimony, and his demeanour and manner of giving evidence, and having considered that testimony within the context of the known facts, we are satisfied that his decision, on the appeal from the Moore adjudication, was in no way affected by the fact that X was a Catholic, or by the fact that the claimant is a Protestant.  

56.	In arriving at that conclusion, and in arriving at similar conclusions in relation to Mr Moore’s adjudication (see paragraph 42 above), we have taken full account of the following matters:

		(1)	Historically, Catholics have been under-represented in the workforce of the Service, for reasons which are not to the discredit of the Service.  In recent years, efforts have been made to address that problem of under-representation.  Against that background, the Service, or some officials of the Service, might feel that it would be inconvenient to have an internal finding that a particular Catholic worker had made a sectarian remark to a particular Protestant worker.

		(2)	However, the claimant’s constituency MP had shown an interest in the claimant’s internal grievance about X.  That clearly expressed interest would be likely to help the Service to resist any temptation which it might otherwise have had to investigate the relevant complaint with less than appropriate rigour.

		(3)	We are not here concerned with the question of whether or not the Service, or any individual within the Service, was unconsciously, or subconsciously, affected by the community background of the alleged perpetrator, or by the community background of the alleged victim.  (The claimant only alleges bias at a conscious level; see paragraph 18 above).

57.	On the basis of the available evidence, we are satisfied that, at the date of the relevant incident, X was a person who, in the past, had been verbally aggressive in the workplace and had used obscene language in the workplace.

58.	For the purpose of determining these proceedings, it has not been necessary for us to arrive at a definitive view on the question of whether or not X did make, or did not make, the relevant sectarian remark.  Instead, the focus of our attention has been on the way in which the ensuing grievance was handled.

59.	We are satisfied that the scope of the evidence considered in the course of the grievance investigation was broadly appropriate.  We are also satisfied, in light of the evidence available to the grievance decision-makers, that the conclusions arrived at in respect of that grievance were reasonable conclusions.

The issues

60.	The issues in this case can be summarised as follows:

		(1)	Has the claimant, in any relevant respect, been treated less favourably than Mr Moore or Mr Masefield would have treated an appropriate hypothetical statutory comparator?

	(2)	If so, was any such treatment accorded to the claimant because of his own religion, or because of X’s religion?

The law

61.	This is a case in which the claimant alleges that he has received less favourable treatment (on the ground of religion) than the treatment which would have been accorded to a hypothetical statutory comparator.

62.	Where a hypothetical comparator is cited (as in this case), it will usually be more convenient for a tribunal to focus, in the first instance, on the question of whether or not the relevant treatment was accorded on the ground of religion, or on some other ground.

63.	In considering whether or not any relevant treatment was affected by religion, it is important to bear in mind that, in the context of direct discrimination, treatment will be on the ground of religion even if religion is not the main ground for the treatment, so long as the ground of religion is a substantial and effective cause.  In other words, the religion ground need only be an important, or significant, factor.  (In this context, see Igen Ltd -v- Wong [2005] IRLR 258, at paragraph 37 of the judgement).

64.	If a tribunal is satisfied that religion did not affect the according of the relevant treatment, the claim has to be dismissed.

Conclusions

65.	It has been alleged that Mr Moore and Mr Masefield were consciously affected either by the fact that the claimant is a Protestant, or by the fact that X was a Catholic, in making relevant decisions in the course of the grievance procedure.  They have testified to us, on oath, that they were in no way consciously affected by such matters.  We accept the truth of that evidence.  

66.	We have concluded that the treatment complained of was not accorded to the claimant on the ground of religion.  We are satisfied that the relevant treatment was in no sense whatsoever on the ground of religion.  Therefore, the case must be dismissed.

Chairman:

Date: 		22, 24, 25 and 29 May 2007, Belfast.

Date decision recorded in register and issued to parties: