THE INDUSTRIAL TRIBUNALS

CASE REF:	563/03

CLAIMANT:			Robert Paul

RESPONDENT:		Chief Constable of the Police Service of Northern Ireland

DECISION
The unanimous decision of the tribunal is that:-

(i)	The claimant was not unlawfully discriminated against by the respondent on the ground of his national origins.  The application is therefore dismissed.

(ii)	It is ordered that the respondent pay to the claimant the sum of £750.00 in respect of costs incurred by the latter.

Appearances:
The claimant was represented by Mr T McGleenan, Barrister-at-Law, instructed by Jones & Cassidy, Solicitors.
The respondent was represented by Mr S Ritchie, Barrister-at-Law, instructed by The Crown Solicitor for Northern Ireland.

1.	(i)	The claimant, by an application presented to an industrial tribunal on 18 February 2003, alleged that he had been discriminated against on the ground of his national origins when he sought to be considered for one of a number of Senior Investigation Officer (SIO) posts which were advertised in late 2002.  His case had been agreed as the ‘lead case’ for a number of similar claims against the respondent.	
			
	(ii)	He made an allegation of indirect discrimination, but following on evidence adduced before the tribunal, he sought to amend his claim to include an allegation of direct discrimination.  This application to amend was resisted by the respondent, and is dealt with subsequently.	

2.	The respondent denied indirect discrimination.  Although the case proceeded before the tribunal on the basis that the claimant could show facts from which indirect discrimination could be inferred, and revolved primarily around the issue of justification, the respondent at no time expressly conceded that the claimant had satisfied the other limbs of an indirect discrimination claim.  Consequently it was necessary for the tribunal to resolve those issues, as well as the issue of justification.

3.	(i)	In order to determine this matter the tribunal heard evidence from Sir Hugh Orde (as he is now), the Chief Constable of the Police Service of Northern Ireland (PSNI), Mr Samuel Kinkaid, an Assistant Chief Constable (ACC), of that force responsible for its Crime Operations Department, Mr Michael Cox, Deputy Director of Human Resources, responsible for Personnel,                          Ms Gillian Faulkner, Personnel Department, PSNI, and Mr Philip Heaton, a Director of Consensia, a consultancy undertaking specific recruitment exercises.

It heard evidence from the claimant, Mr Paul, who is a Detective Inspector in the PSNI.

It also had regard to a considerable amount of documentary evidence adduced by the parties.	
			
	(ii)	The tribunal finds the facts set out in the following paragraphs.	
			
4.	(i)	The claimant has a police career spanning over 24 years in both the PSNI and its predecessor, the Royal Ulster Constabulary GC (RUC).  Most of that career has been spent as a detective.  He is clearly an experienced, highly motivated, and conscientious officer with a service record of which both he and his Chief Constable can be proud.	
			
	(ii)	The claimant, and the 11 other officers of inspector rank who have claims before the tribunal, were on a Reserve List of 20 officers for appointment to the rank of Chief Inspector within the PSNI following a promotion board which took place in late 2001.  This was one of the largest promotion exercises ever undertaken within the PSNI, with approximately half the force’s complement of Chief Inspectors being recruited from the board.  There was a Select List of 71 officers who were allocated to vacancies at Chief Inspector rank.	
			
	(iii)	The claimant had been placed No 10 on the Reserve List.  Promotion for him depended on a future vacancy arising at Chief Inspector level, or on an officer on the Select List declining a posting at Chief Inspector rank on two occasions.	
			
	(iv)	The Reserve List lasted until 14 December 2002.  The way the Reserve List operated had raised some concern within the force.  Some of the claimants had previously engaged in correspondence about it, and ultimately it was indicated by management to the Police Federation on 29 November 2002 that the Reserve List would not be activated.	
			
5.	(i)	On 1 September 2002, the present Chief Constable formally took up his post as head of the force.  Two years before he came to Northern Ireland as Chief Constable he had, as a Deputy Assistant Commissioner with the Metropolitan Police Service, become familiar with policing and policing methods in the Province, having spent a considerable amount of time here heading the            so-called ‘Stevens 3’ investigation into the murder of the prominent Belfast solicitor, Mr Patrick Finucane.  This murder had been carried out by ‘Loyalist’ terrorists and there had been widespread allegations of collusion in the killing by elements within the police and army.  It was because of these allegations that the re-investigation into it was carried out by members of outside police forces.	
			
	(ii)	It is clear to the tribunal that the Chief Constable’s judgment, and decisions which he made in relation to the matter with which we are here concerned, were heavily influenced by the experience which he accumulated in the course of his previous role in enquiries in Northern Ireland.	
			
	(iii)	In fulfilling that role, he saw how murder investigations and enquiries into other serious crime were carried out in Northern Ireland.  There were no permanent and dedicated investigation teams.  When a serious incident took place, senior officers spent a lot of time at the outset of the investigation trying to staff the teams.	
			
	(iv)	The evidence of the Chief Constable in this respect is supported by that of Mr Kinkaid.  Mr Kinkaid was an experienced ‘insider’.  He had previously been ACC Crime and ACC Northern Region under the force’s previous structures.

In addition to being a highly experienced detective officer, we found him to be a completely open and transparent witness who was honest about the RUC’s failings, and who accepted that the RUC/PSNI had fallen behind best practice on the mainland.	
			
	(v)	In the past, when Regions and Divisions had been responsible for the investigation of murder and other serious crime, there had been little co-ordination, with officers being borrowed from other Regions and Divisions.

Under the current structure, with the existence of 10 Major Investigation Teams (MITs) headed by officers of Detective Superintendent or Detective Chief Inspector rank, with appropriate subordinate officers and civilian support staff, crime operations were able to cope without borrowing staff.	
			
	(vi)	Problems for policing in Northern Ireland had also been accentuated by the Patten Report.  This had largely been concerned with the organisational structure of policing.  However, whatever the benefits of Patten, a downside clearly was that the severance arrangements which it recommended, when implemented, had a disproportionate effect on Special Branch and senior detectives, leaving a skills deficit in the PSNI.	
			
6.	(i)	The Chief Constable therefore determined that he needed to ‘borrow’ from mainland forces a small number of highly qualified detectives with experience of the operation and working of MITs (though he saw this as only part of the way of dealing with the problem).

He was trying to change the way major crime was investigated and he wanted officers who knew how to work within the structure of MITs.	
			
	(ii)	An HMIC Inspection of 2002 had recommended the recruitment of officers on short term contacts.  This recommendation did not differ in substance from what the Chief Constable was trying to do here.	
			
	(iii)	We accept the evidence of ACC Kinkaid that even the recruitment of a small number of officers was something which was capable of achieving the end both he and the Chief Constable desired.  If those recruited had a background of investigating serious or organised crime, then the ACC’s view was that there was the potential to learn a lot from their experience.	
			
	(iv)	We further reject any suggestion that what the Chief Constable proposed was in any way to be taken as indicative of a lack of confidence in his own officers.  Although he regarded his own officers as very good, in his professional judgment they did not have the experience he wanted.	
			
	(v)	Further support for the Chief Constable’s view is provided by a report of HMIC published in May 2003 entitled ‘A Report on Murder Investigation for the Chief Constable of the Police Service of Northern Ireland’.  The report took the name of its author, Mr David Blakely HMI.  He had carried out his inspection at the request of Sir Hugh’s predecessor.  In its recommendations it stated that having considered the issue of finding the balance between having central teams to investigate murder or leaving it to the local Divisions, ‘HMIC is unequivocal in recommending the application of a dedicated Major Investigation Team (MIT) structure to PSNI’.	
			
	(vi)	The Blakely Report, of course, post-dates the recruitment process with which we are concerned, and it was suggested by the claimants that it is being relied upon now by the Chief Constable as a subsequent rationalisation of his actions.  We reject this.  Rather it seems to us that Blakely provides evidence that the direction in which the Chief Constable wanted to go in terms of his professional judgment was correct.  We are satisfied in any event that there was an awareness of the skills problem before Blakely reported.	
			
7.	(i)	Another factor very much in the Chief Constable’s mind when recruiting these outside officers was the need for independence in investigations.  The Finucane Enquiry, in which he had been involved, was a case in point.  It was not the only enquiry where there had been allegations of security forces’ collusion.  There were also increasing and ongoing demands for the re-opening of old cases (some of which, too, revolved around allegations of collusion).  The Chief Constable was also aware that decisions of the European Court of Human Rights on the need for independence in investigations to a great extent arose out of cases from Northern Ireland.

From his experience of Stevens, he realised that there were situations where people would not speak to RUC officers.  This was not just the experience of the Chief Constable, at a time when he had been an outsider.  ACC Kinkaid had also found himself in situations where relatives of victims who believed there had been collusion would not speak to him because of his membership of the RUC.	
			
	(ii)	This problem of community confidence, or the lack of it, in the police had manifested itself in the legal advice received by police, complaints to the Police Ombudsman, the number of inquiries (including latterly judicial inquiries) established to look at allegations of collusion, and decisions in judicial review applications.

The Chief Constable described the situation obtaining as the ‘harsh reality’ that some officers in his force would not have commanded community or public support.  He included among these officers English born officers who had served in the RUC/PSNI for a long time.  	
			
	(iii)	It has been put to us, on behalf of the claimant, that there was no reference to independence in the advertisement seeking the officers.  

We do not attach significance to that.  It seems to us that if the officers were being recruited from outside Northern Ireland, then their independence followed from that.

We accept that in what has been termed the subsequent ‘paper trail’ following on the  initiation of the recruitment exercise, there is no mention of independence.  Indeed, generally there is a lack of minuted meetings relating to the recruitment exercise.  While accepting there was a perceived need to act quickly, we nonetheless find that surprising in the public sector.  Nor does independence feature in the pleadings.  However, we are not prepared to draw any adverse inference from that.

Independence was clearly a factor which influenced the Chief Constable’s thinking, and which he decided upon in the exercise of his professional judgment and accumulated experience of conditions on Northern Ireland.

He gave an instruction for his decision to be implemented, as he was clearly entitled to do, and to expect that it should be carried out with minimal further involvement by him.  We do not see how he can be held responsible for any defects in the way his wishes were carried out.	
			
8.	(i)	In fulfilment of the Chief Constable’s instruction, some time in September 2002, Mr Philip Heaton, of Consensia, a consultancy undertaking specific recruitment exercises, was engaged to recruit detectives in the PSNI.	
			
	(ii)	This followed a meeting of the Policing Board on 4 September 2002, at which the Chief Constable (within days of taking up his new appointment) highlighted the serious shortage of detectives within the PSNI and stated that as an interim measure he was seeking assistance from other police forces to second or transfer skilled detectives to the PSNI.  The officers recruited in this way would not form part of the PSNI establishment, and their numbers would be kept to a minimum.  There was no intention to deny promotion opportunities to members of the PSNI.

In a subsequent television interview on 18 September 2002, the Chief Constable had spoken of wanting to ship over from the mainland, “some detectives, fully trained, who can start work very quickly …”, and went on to say that if he could recruit “six or seven experienced Senior Detectives, the impact on major crime would be substantial”.	
			
	(iii)	On 27 September 2002, an advertisement appeared in the ‘Police Review’ a publication circulating widely in Great Britain, but which was also available in Northern Ireland.  The advertisement was headed with a quotation from the TV programme and stated:-	

“As the Police Service of Northern Ireland moves into one of its most challenging phases, the newly appointed Chief Constable, Hugh Orde, requires Senior Investigating Officers to help meet that challenge ………................................................................................................... …………………………………………………………………………………..
The Senior Officers selected will be expected to hit the ground running in a role which combines the co-ordination of serious crime investigations along with the management of intelligence, briefings and family liaison issues ………………………………………….  If you take pride in your detection ability and want to prove yourself in a demanding role, then this is for you.”

	(iv)	Those who were interested were invited to register that interest with the Consensia Partnership by 11 October 2002.	
			
9.	(i)	The full text of the advertisement in ‘Police Review’ did not refer to this recruitment exercise as a secondment opportunity, nor did it any where refer to the rank of officer eligible for considerations.  It referred to ‘Senior Officers’ and ‘Senior Investigating Officers’ (SIOs).	
			
	(ii)	It is a matter of dispute between the parties in this case as to whether the position of SIO is determined by rank.  The claimant, of Inspector rank, contends that he was an SIO.  The respondent claims that an SIO is an officer of the rank of Chief Inspector or above.	
			
	(iii)	We find that the term ‘Senior Investigating Officer’ denotes the rank of Chief Inspector or above.  The evidence of the Chief Constable was that on the mainland, SIOs in murder enquiries are routinely Detective Chief Inspectors (DCIs), and that although the advertisement referring to SIOs did not mention rank, the term should have been understood as referring to DCI or Detective Superintendent rank.

He said that he would have been astonished if a Detective Inspector was short listed.	
			
	(iv)	It is clear that the claimant, Detective Inspector Paul, and other officers of the same or more junior rank, were dealing almost on a routine basis with cases that elsewhere in the United Kingdom would have been dealt with by officers of more senior rank.  However, it is equally clear to us that the reason for this was related to the volume and intensity of serious (especially terrorist) crime in the Province, and the consequent demands placed on the overstretched resources of the RUC/PSNI.	
			
	(v)	The national standard is that an officer of at least DCI rank is responsible for the investigation of major crime, and RUC Force Order No 23/2001 contemplates that the Regional (Senior) Detective in murder investigations should be of DCI rank.	
			
	(vi)	When Gillian Faulkner, of PSNI Personnel, became involved in the recruitment process in January 2003, and received 19 application forms submitted through Consensia, her instructions were that candidates were not to be short listed unless of DCI/Detective Superintendent rank.

This was consistent with an earlier letter sent to unsuccessful candidates pointing out that opportunities for secondment would be at these ranks.  Additionally, a letter of 6 February 2003 to candidates outlining terms and conditions refers to a supplement in lieu of overtime for Chief Inspectors.	
			
10.	(i)	The claimant and his 11 colleagues attempted to apply for the positions trawled in Police Review.  On various dates prior to the specified closing date of 11 October 2004 they telephoned Consensia to obtain information about the posts.  The claimant had his details taken but did not receive an application form.  He was subsequently told on 17 January 2003 that only transferees from other police forces would be considered.  Another claimant, Inspector Foy, was told before the closing date that the positions were only open to officers from Great Britain.	
			
	(ii)	At no time were the claimants told that only officers of the rank of Chief Inspector or above would be considered.  In fact five Inspectors from Great Britain were sent application forms, though none was short listed.  An officer of Detective Constable rank also applied.	
			
	(iii)	On or around 10 January 2003, a spreadsheet was produced by the PSNI setting out the details of the DCIs and Detective Superintendents who were short listed for the positions.  By this stage the Detective Inspectors and Detective Constable who applied had been excluded.	
			
	(iv)	On 9 April 2003, Superintendent Hunter and Superintendent Spick were interviewed by ACC Kinkaid and Detective Chief Superintendent Wright.  On 24 April 2003 each was informed that he had been successful at interview.	
			
	(v)	They were subsequently provided with terms and conditions of employment and they took up their posts in the PSNI.  On 1 June 2003, Superintendent Hunter (who came from the West Midlands Police) was allocated to CID duties in the North West of the Province.  Some of his responsibilities extended to collusion type enquiries.  On 11 August 2003, Superintendent Spick (from Northamptonshire Constabulary) took up duties with the PSNI’s Internal Investigation Branch.  Again, his remit extended to sensitive cases.	
			
	(vi)	Among the sensitive cases handled by Detective Superintendent Hunter was the     re-investigation of the murder of Mr Patrick Kelly, which happened in July 1974.  The victim’s widow made allegations that there had been collusion in that killing by soldiers of the Ulster Defence Regiment, as it then was.

Notwithstanding that one of the Chief Constable’s reasons for seconding officers to the PSNI was that they would bring independence to such investigations.  Mrs Kelly, as part of her application for judicial review of the PSNI’s decision not to appoint an external police force to conduct a fresh investigation into her husband’s killing, asserted that the investigation being conducted by Superintendent Hunter was not independent because he was already on secondment to the PSNI and carrying a PSNI warrant card before he was appointed to head the re-investigation.

Her application for judicial review was dismissed, the Court holding that if properly conducted, the new investigation had the potential to ensure that the requirements of Article 2 of the European Convention on Human Rights could be complied with.	
			
11.	(i)	We now turn to the relevant law relating to indirect discrimination on the ground of race.  It is to be found in Articles 3 and 6 of the Race Relations (Northern Ireland) Order 1997.	

			Article 3(1) provides as follows:-

“A person discriminates against another in any circumstances relevant for the purposes of any provision of this Order if
…………………………………………………………………..

(b)	he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other, but –

(i)	which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that group who can comply with it; and

(ii)	which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and
	
(iii)	which is to the detriment of that other person because he cannot comply with it.

	(ii)	It is accepted that the modified definition of indirect discrimination, introduced by the Race Relations (Amendment) Order 2003, and which came into effect on 19 July 2003, does not apply retrospectively to these proceedings.

However, it is accepted that the modified burden of proof in Article 52A of the 1997 Order, as introduced by Regulation 40 of the 2003 Amendment Regulations, does have retrospective effect.	
			
12.	(i)	As indicated previously, though the hearing largely revolved around the issue of objective justification, the respondent at no time conceded disparate impact.  In these circumstances the tribunal has had regard to the decision of the Employment Appeal Tribunal in Raval  v  DHSS and Civil Service Commission [1985] 37, and to the questions which it suggests be asked in order to determine whether indirect discrimination has been made out.	
			
	(ii)	The claimant considers his national origin to be Northern Irish.  In the particular circumstances of this case the respondent did not take issue with the claimant’s contention that his national origins are Northern Irish.  However, he reserved his position on whether to raise this issue and address it more comprehensively in both evidential and legal terms in some other case.  It is the tribunal’s understanding that this concession relates to the ‘lead’ case of Mr Paul only and not to the other associated claims by his colleagues.

In these circumstances we deal with this point briefly, but make it clear that we are satisfied that ‘Northern Irish’ is a national origin which brings into play the protection afforded by the 1997 Order.  In reaching this conclusion we have had regard to the following authorities which were relied upon by the claimant:-	

			London Borough of Ealing  v  Race Relations Board [1972] 1 ALL 2R 105

			Northern Joint Police Board  v  Power [1997] IRLR 610

			BBC Scotland  v  Souster [2001] IRLR 150

		These cases clearly show that to discriminate against someone on the ground that he or she is English, or Scottish, or Welsh would be to discriminate against them on the ground of their national origin.

The United Kingdom consists of four geographical entities, three of which have always had a separate legal and administrative structure (Wales now has its own such structure following devolution).  Bearing in mind that the legislation is identical in Great Britain and Northern Ireland, it is difficult, in the light of the authorities, to see why persons of Northern Irish national origins should be excluded from its protection.	
			
	(iii)	We now address the questions of whether the respondent applied a condition or requirement to the claimant and if so, when such a condition or requirement was imposed.

In approaching these questions we bear in mind the decision of the Employment Appeal Tribunal in Home Office  v  Holmes [1984] ICLR 299 at 301 where it was stated that, “[r]equirement or condition are plain words of wide import …………………….. and there [is] no basis for giving them a restrictive interpretation in the light of the policy underlying the Act or in the light of public policy”.

The claimant contends that the requirements and conditions in dispute are as follows:-	

(a)	a requirement or condition that applicants be transferred or seconded from another police force.   (While we accept that this was always the Chief Constable’s intention, there appears to have been confusion among those charged with implementing his decision, but it is clear that they applied this condition or requirement from mid November 2002.)

We do not agree with the respondent’s contention that a secondment opportunity is not a requirement or condition, but that it is rather an essential part of the job;

(b)	a requirement or condition that officers applying should hold the rank of Chief Inspector or above.  (This is accepted by the respondent as a requirement or condition.  It appears to date from January 2003);

(c)	a requirement to hold a national qualification.  (Again, this is accepted by the respondent as a requirement or condition.)

		The tribunal is therefore satisfied that the above were the conditions and requirements imposed upon the claimant.  The imposition of the first requirement, in particular, had the effect of excluding from consideration PSNI officers (the vast majority of whom were Northern Irish).  The requirement of secondment also applied to officers in England, Scotland and Welsh police forces, the vast majority of whose members were English, Scottish, or Welsh respectively.  Those groups, however, unlike those of the claimant’s national origins, were able to apply.	
			
	(iv)	As far as the relevant pool is concerned, there has been no agreement on this.  Nor has the tribunal been provided with any statistical evidence in relation to potential pools.

However, having accepted the conditions/requirements put forward by the claimant, we accept the submissions put forward on his behalf that secondment inevitably had a disparate impact on Northern Irish officers because PSNI detectives were not permitted to apply, whereas those from Great Britain were.  Some SIOs in Great Britain may have been of Northern Irish origin, but the number of those would have been negligible.

If one includes the further requirements of rank and attainment of a national qualification, the former excluded officers of Detective Inspector rank notwithstanding that in the Province (because, as we have stated, of the extremely high levels of serious and terrorist crime) officers of that rank had been carrying out functions which on the mainland would be carried out by DCIs.

The latter had an additional adverse impact on officers of Northern Irish origin because of lack of access to training meant that the proportion of PSNI detectives who held it was likely to be much lower than those of English, Scottish and Welsh national origin who held it.  This was apparent from the respondent’s evidence.	
			
	(v)	We are further satisfied that the claimant could not comply with the conditions or requirements at the material time, and further that it was to his deteriment that he could not do so in terms of his continuing loss of pay and career opportunities and injury to his feelings.	
			
13.	(i)	In view of our findings in the previous paragraph we now turn to the final question imposed by Raval, namely whether the requirement or condition imposed by the respondent can be justifiable, irrespective of any racial factor.  It was this issue which dominated the proceedings before the tribunal.	
			
	(ii)	The accepted interpretation of ‘justifiable’ was laid down by the European Court of Justice in Bilka-Kaufhaus Gmbh  v  Weber Von Hartz [1986] IRLR 317.  This was an equal pay case, but the principles laid down by it have also been applied to cases of sex and race discrimination.

The Court held that in order to make out the defence of justification, a respondent could justify the practice in dispute if it were able to show that it was explained by objectively justifiable factors unrelated to any discrimination on the ground (in that case) of sex.

It stated, at p320, in a passage which has been much quoted generally and also in the parties’ submissions in this case:-	

“If the National Court finds that the measures chosen by the employer correspond to a real need on the part of the undertaking and are appropriate with a view to achieving the objectives pursued, and are necessary to that end, the fact that the measures affect a far greater number of women than men is not sufficient to show that they constitute an infringement of Article 119.”

	(iii)	In Hampson  v  DES [1989] IRLR 69 the Court of Appeal in England applied the Bilka-Kaufhaus test to indirect discrimination under the Race Relations Act.  (See also : Briggs  v  North Eastern Education and Library Board [1990] IRLR 181.)

In Cobb  v  Secretary of State for Employment [1989] IRLR 464 EAT, Wood J set out the correct approach to the issue of justification as follows, at p 468:-	

“It was for the respondent to satisfy the tribunal that the decisions which he took were objectively justified for economic, administrative, or other reasons.  It was for the tribunal to decide what facts it found proved, and to carry out the balancing exercise involved taking into account all the surrounding circumstances and giving due emphasis to the degree of discrimination caused against the object or aim to be achieved – the principle of proportionately.  We do not accept that the production of a mass of statistics or of sociological or expert evidence is a necessity on these issues, nor do we accept that the absence of such evidence proves that the reasoning of the [respondent] is flawed … a respondent is entitled to take a broad and rational view provided that it is based on logic and is in the view of the tribunal a tenable view.

He is under no obligation to prove that there was no other way of achieving his object, however expensive and administratively complicated.”

	(iv)	The questions for the tribunal which we distil from these and other cases on objective justification are as follows:-	

Has the requirement or condition been imposed other than to discriminate on proscribed grounds?

Did the means chosen to achieve the desired aim correspond to a real need on the part of the respondent?

			Were they both proportionate and necessary to achieve that aim?

14.	(i)	As far as the first of the above questions is concerned, we are satisfied that the requirements in dispute were not imposed by the Chief Constable with any discriminatory aim in mind, and we would emphatically reject any suggestion to the contrary.	
			
	(ii)	We are satisfied from the evidence of the Chief Constable and that of ACC Kinkaid that the requirements imposed with regard to secondment, the rank and which secondment was to take place, and SIO experience corresponded to a real need on the part of the PSNI. 	
			
		The Chief Constable has a responsibility to provide an efficient police service and one in which the community can have confidence.  We are all too aware of the nature of serious crime in Northern Ireland, much of it is spawned as an offshoot to terrorist violence.	
			
		The aim of the recruitment exercise was to recruit a comparatively small number of officers who could make an impact on the skills deficit from which, the evidence shows, the PSNI was clearly suffering and to increase the capacity and effectiveness of the force in carrying out major criminal investigations.	
			
	(iii)	We are also satisfied that in the circumstances pertaining in Northern Ireland there was a real need for officers who would be seen as being independent in carrying out investigations where there had been allegations of collusion and where previous investigations had been seen as defective on that account.	
			
	(iv)	We consider that each of the above factors is capable of providing justification in its own right, as opposed to cumulatively.	
			
	(v)	It was urged upon us by the claimant that in the light of decisions such as McKerr [2004] UKHL 12, (Article 2 right not engaged for deaths before             October 2000) and Re: Teresa Kelly’s Application for Judicial Review NIQB 72 [2004] and the lack of deaths involving allegation of collusion since 2000 it would be surprising if there were now any need for any independent investigation of contentious killings.	
			
		It is, however, proper for the Chief Constable to take broader view than one dictated by technical legal requirements having regard to the desirability of public confidence in the impartiality of the police force.	
			
	(vi)	We are also satisfied that the requirements imposed were appropriate and necessary to bring about the desired aim of the Chief Constable.	
			
15.	(i)	We find that the various alternatives suggested by the claimant would not have brought about the improvements which the Chief Constable was seeking to achieve.	
			
		It would, for example, have been possible to send PSNI officers of Detective Inspector rank to Great Britain for training.	
			
		However, this would not have met the need for independence, and the effects of such a course of action would have taken time to filter through, whereas with secondment there would have been an immediate influx of officers who had experience of new methods and procedures.	
			
	(ii)	Promoting the claimant to Chief Inspector or allowing him to act up would clearly have been cheaper financially – the cost for the proposed secondment of six or seven officers over a two year period was in excess of £2 million.	
			
		The establishment figures for officers of Chief Inspector rank were not set in tablets of stone, though to promote the claimant, Mr Paul, he would have had to leapfrog nine others before him on the Reserve List.  It does appear that this would have been possible for a specialist post.	
			
		However, we accept that this would have been an ineffective way of meeting the best practice model.  Although we note that some candidates from the Select List who did not have SIO experience were promoted to SIO posts, these appointments predated the Chief Constable’s appointment.	
			
	(iii)	The Chief Constable and ACC Kinkaid had a high regard for D/Inspector Paul.  However, the latter did not accept that the claimant was capable of doing the job of an SIO.  What was needed was the knowledge and breath of experience which local officers did not have compared to their counterparts on the mainland.  Areas where Mr Kinkaid highlighted deficiencies were in the management of crime scenes (which had become apparent in Crown Court cases) the dissemination of intelligence, the handling of sensitive material, and the covert gathering of evidence which it was intended would be used in Court.	

	
		It is clear to us that the police in Northern Ireland had fallen behind advances in investigative techniques and practices which are now accepted on the mainland.	
			
	(iv)	The Chief Constable’s view of what was required was a proper and tenable one.  The fact that not as many officers as hoped for applied, and that the exercise may not therefore have been as successful as anticipated, does not mean that it was not justifiable.	
			
		The claim of indirect discrimination is dismissed.	

16.	We deal briefly with some other matters.

(i)	In the course of hearing the claimant sought to advance a claim of direct discrimination based on evidence which tended to show that he had less favourable pay terms and conditions when carrying out the same or similar work as Detective Superintendent Hunter.

	Having regard to the authorities, and in particular the factors which require to be considered when an application to amend is made as set out in Selkent Bus Co Ltd  v  Moore [1996] IRLR 661, we refuse leave to amend.  

We are concerned here with a completely new claim.

The disparity in pay between the claimant’s rank and that of a Detective Superintendent, and the nature of the work each was doing was something of which the claimant must always have been aware.  It would have been prejudicial to the respondent to have to deal with such a point, of which he did not have notice.

(ii)	The respondent made an application for costs on the ground that the claimant’s application was misconceived and unreasonable.  We do not accept this, nor do we accept that the manner in which the proceedings were conducted by the claimant was unreasonable.  We therefore make no Order for Costs against the claimant.

(iii)	The manner in which documentary evidence was made by the respondent was in certain respects unsatisfactory, though not to the extent that we have drawn any inference from it.  On the fourth day of the hearing, Mr Cox had to be recalled to give evidence and further discovery relating to previous undisclosed e-mails was provided to the claimant and his representatives.  We estimate that this lengthened the hearing by half of a day, and having considered this matter, we exercise our discretion, and order that the respondent pays to the claimant the sum of £750.00 in respect of costs incurred by him.

Chairman:

Date and place of hearing:		11 – 13 October 2004; 21 – 22 October 2004;
						25 – 26 November 2004; 17 December 2004; and
						4 February 2005, Belfast

Date decision recorded in register and issued to parties: