FAIR EMPLOYMENT TRIBUNAL

CASE REFS:   48/04 FET
307/04

CLAIMANT:		Steven Andrew Lowrey Wilson

RESPONDENT:		Chief Constable of the Police Service of Northern Ireland 

DECISION

The unanimous decision of the Tribunal is that the claimant was not unlawfully discriminated against by the respondent on the grounds of religious belief, race, and sex.

Constitution of Tribunal:
Chairman:		Mr D Buchanan
Members:		Mr B McGuire
			Ms A Gribben

Appearances:
The claimant was represented by Mr M McEvoy, Barrister-at-Law, instructed by Harrison & Barbour, Solicitors.
The respondent was represented by Ms N Murnaghan, Barrister-at-Law, instructed by The Crown Solicitor’s Office.

1.	By consent, the title of the proceedings is amended to that now shown.

2.	The issues for determination by the Tribunal, as agreed by the parties at a Case Management Discussion on 4 January 2007, are as follows:-

(i)	whether the claimant was less favourably treated than Bernio Cowan on the grounds of religious belief, contrary to Article 3(2) of the Fair Employment and Treatment (Northern Ireland) Order 1998 in the respondent’s refusal to grant the claimant permission to avail of unpaid leave;

(ii)	whether the claimant was less favourably treated than Bernio Cowan contrary to Article 3 of the Race Relations (Northern Ireland) Order 1997 in the respondent’s refusal to grant the claimant permission to avail of unpaid leave;

(iii)	whether the claimant was less favourably treated than Bernio Cowan contrary to Article 4 of the Sex Discrimination (Northern Ireland) Order 1976 in the respondent’s refusal to grant the claimant permission to avail of unpaid leave.

3.	On 7 October 2003 or thereabouts the claimant was refused unpaid leave to work for a private security company in Iraq.  At that time he was a serving police officer.  The claimant is white, Protestant, and male.  He compares his treatment with that of another police officer, Bernio Cowan, who, he claimed, had been granted leave in similar circumstances to take up employment with the United Nations Special Court at Freetown in Sierra Leone.  Constable Cowan is black, female, and Catholic.

4.	In order to determine these matters, the Tribunal heard evidence from the claimant, Mr Wilson, and from Mr Andrew Millar (Personnel Officer, South Belfast District Command Unit), Ms Pat Wilson (at the relevant time an EOII in Personnel at Lisnasharragh), Mrs Ann Burnett (Head of Personnel), and Mr Joe Stewart (Director of Human Resources), on behalf of the respondent.

The Tribunal also had regard to the documentary evidence adduced before it.

It finds the facts set out in the proceeding paragraphs.

5.	(i)	The claimant was formerly a police constable in the Royal Ulster Constabulary GC and its successor, the Police Service of Northern Ireland.  He had approximately 18 years service in the police.  Following the events which gave rise to these claims, he resigned from the force, and that resignation took effect on 6 November 2003.	
			
	(ii)	On or about 17 September 2003 the claimant made an application for unpaid leave for a period of one year.  This was to enable him to take up employment with a London-based security risk consultancy, Control Risks.  This company provided close protection to Foreign and Commonwealth Office staff in various locations abroad, including Iraq.	
			
	(iii)	The application for leave of absence was made in accordance with Paragraph 18 of Section 17 of the Leave Regulations in the Police Code.  Paragraph 18 provides:-	

(1)	Application for unpaid leave will be made through the normal channels to Personnel Branch, Lisnasharragh, giving a firm recommendation as to the suitability of the member being absent from their duties for the period applied for.  District Commanders/Sub-Branch Heads should report if the member will be required to attend court proceedings during this period.

(2)	Members applying for a period of unpaid leave must have exhausted their full quota of unpaid leave.  Entitlement will be calculated up to the date of commencement of the period of unpaid leave.  Members will be allocated a further annual quota upon their return to duty …

(3)	The following details covering the period applied for must be included in all applications for the information of the police authority.  The dates of –

(a)	annual leave … ;

(b)	unpaid leave … ;

(c)	rest days …;

(d)	public holidays … ;

(e)	time off in lieu (rest days and public holidays falling within the period of unpaid leave should be included as unpaid leave).

	(iv)	The claimant’s application for unpaid leave complied with the requirements of the Regulations, and it was submitted through his line manager (who supported it, and recommended that it be granted) to the relevant District Commander.  He, in turn, forwarded it to Personnel Branch at Lisnasharragh on 25 September 2003.  The accompanying minute stated, “The application is forwarded with my approval.  This decision is based on current resource requirements solely within South Belfast (District Command Unit).

This application is forwarded for your determination in respect of corporate resource requirements and your final decision”.	
			
	(v)	The claimant believed that because his application had been approved at District Command level, approval by Personnel was only a formality (he referred to it as ‘a tick in the box’).  Whilst such a belief on his part did not accord with the prescribed procedures, we can nonetheless see how he came to hold it.  District Commanders were routinely recommending that such applications be granted without, it seems, giving much thought to the resource implications of their recommendations.	
			
	(vi)	The claimant’s application for unpaid leave was refused by Personnel on 25 September 2003 (the day it was received).  The stated reason was ‘ongoing resource shortages’.	
			
	(vii)	Mr Millar, the personnel officer at Musgrave Street, was notified verbally by Personnel at Force Headquarters on 3 October 2003 that the claimant’s application had been refused on the basis of an instruction from Mr Stewart, Director of Human Resources, that because of organisational pressures, a moratorium on the approval of unpaid leave/career break applications had been directed.	
			
	(viii)	There had been an instruction from the Director of Human Resources distributed on the force’s Message Handling System (MHS) on 26 August 2003 which had stated that “[i]n the current climate of limited resources it is paramount that the maximum amount of resources are made available to police Northern Ireland.  To this end it has been agreed between the Chief Constable and the Policing Board that PSNI Personnel will be withdrawn from International Missions”.

This minute, however, had not come to the attention of staff at Musgrave Street when the claimant’s application was processed.  The minute was not directly in point as far as the claimant’s case was concerned.  There was nothing in it suggesting unpaid leave was going to be affected.  The MHS was issued in the context of involvement by police officers in ‘International Missions’, and related to the deployment of PSNI officers as such.  

However, it was nonetheless a forewarning that there were potential problems with the granting of leave of absence, whatever the reason.	
			
	(ix)	Mr Millar notified the claimant verbally of the refusal of unpaid leave sometime between 3 and 9 October 2003, and on 11 October 2003, he informed the claimant, in writing, through his line manager, of that refusal.	
			
6.	(i)	The claimant gave notice of resignation on 9 October 2003, to take effect from 6 November 2003, and went to work in Iraq shortly afterwards.  While home on leave in December 2003, he met up with a friend, also a former police officer, who told him of another officer (his comparator, Constable Bernio Cowan, who had in fact worked with the claimant in the past) who had applied for a period of unpaid leave, which had been granted, around the same time the claimant was refused.	
			
	(ii)	Constable Cowan’s application for unpaid leave had been made on or about 8 August 2003.  Her application was to enable her to work at the Special Criminal Court, set up under the auspices of the United Nations, at Freetown in Sierra Leone.  (Her purpose in applying for unpaid leave was somewhat different from that of Mr Wilson, the claimant, but the parties have agreed that the purpose for which unpaid leave was sought by the claimant and Constable Cowan was not a material consideration in refusing or granting leave under the Leave Regulations).	
			
	(iii)	Constable Cowan’s application for unpaid leave was granted on 8 September 2003.

At the time her leave of absence was granted, there was ongoing concern within the police about resource implications generally.  There was also concern about rates of absenteeism, and policies were being put in place to encourage absentee officers back to work.  In the context of limited resources, this did not sit easily with the policy of releasing other officers on unpaid leave.  Staff in personnel were aware of these ongoing concerns, and in late September 2003 verbal advice was sought as to how officers’ applications for unpaid leave should be dealt with in future.

Mr Stewart was involved as part of these ongoing discussions, and on 16 September 2003 he informed Mrs Burnett in an e-mail that “[t]he command team are of the view that because of the need for more officers to serve in NI resources should be maximised.  No officers should be given leave to perform policing duties elsewhere”.

This e-mail had the authority of the Chief Constable, and following a meeting of the force’s senior command team on 24 September 2003, Mr Stewart’s then staff officer sent a further e-mail to District Commanders on 29 September 2003 stating that unpaid leave would currently be difficult to justify, and further stating that it should only be considered in exceptional circumstances in the future.

Indeed, it can be noted at this point that the general rule following the claimant’s refusal of unpaid leave, was that subsequent applications were refused.	
			
	(iv)	On receipt of Mr Stewart’s e-mail of 16 September 2003, Mrs Burnett gave an instruction on 17 September 2003 that if Constable Cowan had not already gone to Sierra Leone, the approval for her to do so should be rescinded, and this was in fact done on the latter date.	
			
7.	(i)	On learning that the leave of absence, which had been granted, had been revoked, Constable Cowan was most unhappy, and she made strong representations to Personnel in which she outlined the significant personal difficulties which that decision had caused for her.  Constable Cowan appealed against the decision to revoke the permission to take unpaid leave.  (It is perhaps more accurate to say that she asked for the revocation decision to be re-considered, for the Leave Regulations did not provide for any formal appeal procedure.)  	
			
	(ii)	The matter was placed before Mr Stewart at a meeting late on 17 September 2003 at which Mrs Burnett, and his staff officer at the time, were present.  Mr Stewart had no day-to-day involvement in considering applications for unpaid leave.  It was a matter which he had delegated to his subordinates.  He re-considered the matter in the light of the information placed before him by Mrs Burnett.  He noted that approval had been granted to Constable Cowan to go to Sierra Leone on 8 September 2003.  It had subsequently been withdrawn following his e-mail direction of 16 September 2003.

Constable Cowan, in reliance on the initial approval, had in the intervening period rented out her house for a year, sold her car, packed her belongings and informed relatives of her departure.  If she were not allowed to go, she would, in effect, have been rendered homeless.

Mr Stewart considered that on welfare grounds, on the specific facts of Constable Cowan’s case, it would have been unfair to let the revocation decision stand.  Consequently, the original decision to let the officer go to Sierra Leone was reaffirmed.  Mr Stewart did not make this decision lightly.  He made it very clear that his decision in this case was not to be taken as a precedent in respect of any other application for, or decision about, unpaid leave.  	
			
	(iii)	The claimant in his witness statement stated that in its dealings with Constable Cowan “the Police Service was driven by a consciousness of being seen ‘to be politically correct in giving preference treatment to Bernio as a member of a number of minority groups within the force … “.

It was expressly put to Mr Stewart in cross-examination that a desire to be politically correct had informed his judgment and that he had panicked about the consequences of an adverse decision in respect of Constable Cowan. 

Mrs Burnett, Mr Stewart and Mrs Pat Wilson (who processed Constable Cowan’s application and referred it upwards) all knew that she was a female officer.  However, they did not know her religious belief or colour and Mrs Burnett only learned that her place of birth was in England, when she accessed her file subsequently for the purpose of these proceedings.

The way in which Constable Cowan was treated, where the decision to revoke her grant of leave of absence was arguably wrong in any event, is not indicative of or consistent with ideas of political correctness.	
			
	(iv)	Mr Wilson, the claimant, did not seek to challenge, or ask for reconsideration of, the decision to refuse him unpaid leave in the way that Constable Cowan had challenged the revocation of her grant of unpaid leave.  

There was nothing to stop him following Constable Cowan’s example.  Mr Stewart gave evidence that had the claimant made an application for a review of the refusal, he would have considered it on its merits.  We accept Mr Stewart’s evidence in that regard.  We also accept Mrs Burnett’s evidence that if the claimant had made initial representations to her, she would have taken them forward to Mr Stewart in the same way she had done for Constable Cowan.	
			
8.	(i)	The relevant law in relation to these claims is to be found in Article 19(1) of the Fair Employment and Treatment (Northern Ireland) Order 1998, as amended by the Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003, Article 8 of the Sex Discrimination (Northern Ireland) Order 1976, as amended by the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) Order 2001, and Article 3 of the Race Relations (Northern Ireland) Order 1997, as amended by the Race Relations Order (Amendment) Regulations (Northern Ireland) 2003.  

These provisions deal with discrimination in the employment field, and make it unlawful to discriminate on the grounds of religious belief, sex, or race respectively.	
			
	(ii)	Regulation 24 of the 2003 Fair Employment Regulations inserts a new Section 38A in the 1998 Order.  It deals with the burden of proof and provides:-	

“Where, on the hearing of a complaint under Article 38, the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent:-

(a)	has committed an act of unlawful discrimination or unlawful harassment against the complainant, or

(b)	is by virtue of Article 35 or 36 to be treated as having committed such an act of discrimination or harassment against the complaint;

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

		Article 63A of the Sex Discrimination (Northern Ireland) Order 1976 (as substituted by the 2001 Regulations) and Article 52A of the Race Relations (Northern Ireland) Order 1997 (as substituted by the 2003 Amendment Regulations) make similar provision.	
			
9.	(i)	In Igen Ltd (formerly Leeds Carers Guidance) and Others  v  Wong, Chamberlain Solicitors and Another  v  Emokpae; and Brunel University  v  Webster [2006] IRLR 258, the Court of Appeal in England and Wales set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race, and disability discrimination.  It is not in dispute that this guidance also applies to cases of religious discrimination.  This guidance is now set out at an Annex to the judgment in the Igen case, op cit 269,270.

We therefore do not set it out again, but we have taken it fully into account.	
			
	(ii)	In short, the claimant must prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of unlawful discrimination on one or more of the proscribed grounds.  The Tribunal will also consider what inferences it is appropriate to draw from the primary facts which it has found.  By way of example, such inferences can include inferences that are just and equitable to draw from the provisions relating to statutory questionnaires, failure to comply with any relevant Code of Practice, or from failure to discover documents or call an essential witness.

If the claimant does prove facts from which the Tribunal could conclude in the absence of an adequate explanation from the respondent that the latter has committed an unlawful act of discrimination, then the burden of proof moves to the respondent.  To discharge that burden the respondent must show, on the balance of probabilities, that the treatment afforded to the claimant was in no sense whatsoever on a proscribed ground (in this case, religious belief, sex, and race).  The Tribunal must assess not merely whether the respondent has proved an explanation for the facts from which inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that religious belief, sex, or race was not a ground for the treatment in question.  Since the facts necessary to prove an explanation will normally be in the possession of a respondent, a Tribunal will expect cogent evidence to discharge that burden of proof.	
			
	(iii)	Although the above logically establishes a two-stage process, it is not to be applied slavishly or mechanically, and in deciding whether the claimant has made out a prima facie case the Tribunal must put to one side the employer’s explanation for the treatment, but should take into account all other evidence, including evidence from the employer.

(See : Laing  v  Manchester City Council [2006] IRLR 748 EAT; Madarassy  v  Nomura International PLC [2007] IRLR 247; and Arthur  v  Northern Ireland Housing Executive and another [2007] NICA 25.)	
			
10.	(i)	Having considered the evidence and the relevant law in this case, and having regard to the helpful submissions of counsel, the Tribunal now reaches the following conclusions.	
			
	(ii)	Following Mr Stewart’s e-mail of 16 September 2003 setting out the decision not to allow any more unpaid leave, Constable Cowan’s unpaid leave, which had been granted, was revoked, and the claimant’s application for unpaid leave was refused.  Both, therefore, on the face of it, suffered adverse consequences.  In Constable Cowan’s case, the adverse decision was later set aside.

However, we are satisfied that the reason for their different treatment was not because of factors relating to religious belief, sex, or race (the proscribed grounds of discrimination relied upon by the claimant), but because Personnel Branch were operating under different policies at the time of making the respective decisions.  Had the making of the respective applications been reversed in point of time, we are satisfied that the claimant would have been permitted to take unpaid leave, and Ms Cowan’s application would have been refused.

We have already noted that since the refusal of the claimant’s application, there has been a fairly consistent policy of refusing unpaid leave to subsequent applicants.

This is not to say we are without sympathy for the claimant, who unfortunately left the police with a sense of grievance after a long and unblemished career.  It would, perhaps, have been fairer if the respondent had made some transitional arrangements when the policy was changed.

In this case, however, we are not satisfied that any facts have been proved from which discrimination can be inferred.  We dismiss these claims.	

Chairman:

Date and place of hearing:	8 – 9 and 15 October 2007, Belfast

Date decision recorded in register and issued to parties: