Dougan v Chief Constable of the Royal Ulster Constabulary [2006] NIIT 3244

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Cite as: [2006] NIIT 3244_97SD

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THE INDUSTRIAL TRIBUNALS

CASE REF: 03244/97SD

01734/98SD

CLAIMANT: Jo-Anne Dougan

RESPONDENT: Chief Constable of the Royal Ulster Constabulary

DECISION ON REMEDY

The unanimous decision of the tribunal is that:-

The tribunal makes a declaration that the claimant was unlawfully indirectly discriminated against on the grounds of her sex, contrary to the terms of the Sex Discrimination (Northern Ireland) Order 1976, in the arrangements, namely the Physical Competence Assessment, that he made in connection with her applications to become a full-time member of the regular Royal Ulster Constabulary in 1997 (Competition 'F') and in 1998 (Competition 'G').

The tribunal orders the respondent to pay to the claimant, by way of compensation, the sum of £9,147.78.

Constitution of Tribunal:

Chairman: Mr N Drennan QC

Panel Members: Mr J Hughes

Ms M Mulligan

Appearances:

The claimant appeared in person and was unrepresented.

The respondent was represented by Mr J O'Hara QC and Mr P Lewis, Barrister-at-Law, instructed by the Crown Solicitor's Office.

"Article 65

(1) Where an Industrial Tribunal finds that a complaint presented to it under Article 63 is well founded, the tribunal shall make such of the following as it considers just and equitable –

(a) An Order declaring the rights of the complainant and the respondent in relation to the act to which the complaint relates;

(b) An Order requiring the respondent to pay to the complainant compensation of an amount corresponding to any damages he could have been ordered by a County Court to pay to the complainant if the complaint had fallen to be dealt with under Article 66;

(c) A recommendation that the respondent take within a specified period action appearing to the tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of an act of discrimination to which the complaint relates.

….

(1B) As respects an unlawful act of discrimination falling within Article …. 3(1)(b) …., if the respondent proves that the requirement or condition in question was not applied with the intention of treating the complainant unfavourably on the ground of his sex or marital status as the case may be, an Order may be made under paragraph 1(b) only if the Industrial Tribunal –

(a) makes such Order under paragraph 1(a) and such recommendation under paragraph 1(c) (if any) as it would have made if it had no power to make an Order under paragraph (1)(b); and

(b) (where it makes an Order under paragraph (1)(a) or a recommendation under paragraph (1)(c) or both) considers that it is just and equitable to make an Order under paragraph (1)(b) as well."

Article 65(1B) was inserted into the provisions of the 1976 Order by virtue of the Sex Discrimination (Amendment) Regulations (Northern Ireland) 1996, which came into operation on 20 October 1996; and is therefore relevant to the subject matter of these claims, which related to the failure of the claimant to become a full-time member of the Royal Ulster Constabulary, as it then was, in 1997 (Competition 'F', which took place on 1 September 1997) and in 1998 (Competition 'G', which took place on 20 April 1998); when on each occasion the claimant failed to pass the physical competence assessment ("PCA").

Prior to the said amendment, an award of compensation in respect of unlawful indirect discrimination could not be made, where the discriminator proved that the requirement or condition in question was not applied with the intention of treating the claimant unfavourably on the grounds of her sex.

Following the said amendment, inserting Article 65(1B), as set out above, in cases of indirect sex discrimination in the employment field, no award of compensation will be made if the employer proves the requirement or condition was not applied with the intention of treating the claimant unfavourably on the grounds of her sex unless:-

(1) the Industrial Tribunal makes a declaration as to the rights of the parties and any recommendation as if it had no power to make an award of compensation; and

(2) at that point considers that it is just and equitable to make an award for compensation as well.

It is suggested in Discrimination Law Handbook (Palmer LAG 2002) at paragraph 33.50, in a case of unintentional indirect discrimination, that "it will be an unusual case in which a declaration and a recommendation will be sufficient to remedy a wrong done by way of indirect discrimination, it will be only in those cases where those remedies above are sufficient that the [Industrial Tribunal] will be entitled to decline to make an award of compensation".

The tribunal was not satisfied that it would be appropriate to make any recommendation in this matter, given that any such recommendation must relate to the claimant herself and the specific acts complained of; and further, after taking into account the fact that a considerable period of time has now elapsed since the date of the said competitions, the subject matter of these complaints, the changes to the PCA since the dates of those competitions, and the retirement of the claimant on ill health grounds on 20 August 2003. However, the tribunal was satisfied that, following its Decision on Liability, the claimant was entitled to a declaration of her rights in relation to the matters complained of.

In light of the provisions of Article 65(1B), it was therefore necessary for the tribunal to first determine whether the respondent had shown that the requirement or condition in question had or had not been applied with the intention of treating the claimant unfavourably on the grounds of her sex.

In determining 'intentionality' for these purposes, the EAT held in the case of London Underground -v- Edwards (1995) IRLR 355 that the intention relates to the intention with which the requirement or condition was applied rather than to the more generalised intention relating to the introduction of the requirement or condition. It was therefore open to a tribunal to find that a requirement was applied with the knowledge of its unfavourable consequences for the complainant, as a woman, and intention to produce these consequences can be inferred. In a further Decision of the EAT, it was held in the case of JH Walker Ltd -v- Hussain (1996) IRLR 11, that intention is concerned with the state of mind of a person who at the time when he does the relevant act (a) wants to bring about the state of affairs which constitutes the prohibited result of unfavourable treatment on [racial] grounds and (b) knows that that prohibited result will follow from his acts. The motivation of the respondent is therefore irrelevant.

As appears from the Decision of 16 August 2002 ("the Liability Decision"), the tribunal referred to the whole history of how the PCA came to be developed, and the research that had been carried out in relation to same and how the PCA subsequently came to be introduced in 1995 and applied in Competitions 'F' and 'G', the subject matter of these claims. Further, the tribunal also determined that, not only had the respondent justified the use of a job related PCA, which did not use a gender specific criteria, as had previously been used, and therefore was not in itself discriminatory; the tribunal had also found that the respondent had justified the two elements themselves, which comprised the PCA, namely the circuit and push/pull, and were not therefore in themselves discriminatory. It also found the standard of 25 Kgf for the push/pull device to be non-discriminatory. Similarly, the tribunal, in the Liability Decision, had no criticism of the compensation scheme that was adopted by the respondent, where a candidate had failed one of the elements of the PCA, up to a maximum permitted level of 10%. The scheme had no application where a candidate failed the relevant standard for both elements of the PCA. However, it is correct that the tribunal, in its Liability Decision, found that the circuit standard of 3 minutes 45 seconds had not been justified and therefore the claimant had been unlawfully discriminated against by the respondent on the grounds of her sex.

In finding that the standard for the circuit had not been justified, the tribunal, in this context, expressed its concern in paragraph 19 of the Liability Decision how, despite the work that had been carried out to obtain an appropriate standard, the standard had, on the evidence of one of the respondent's witnesses, been "plucked from the air" and by another witness from the respondent that it was a matter of "subjective judgement". The claimant contended that by setting the standard for the circuit in that manner, and which standard was found to be unjustified and therefore discriminatory, the respondent had deliberately done so in order to exclude women. Mr O'Hara in response said there was no evidence of any such deliberate act and relied on the matters, which were justified, as set out above from the said Liability Decision. Whilst conceding that the tribunal had not been satisfied that the standard for the circuit had been justified, and that the respondent had thereby got it wrong; he submitted that, when the whole history of the development and introduction of the PCA was taken into account, and, in particular, all the aspects of the PCA that the tribunal had found justified and non-discriminatory, that the respondent had thereby shown that the requirement had not been applied with the intention of treating the claimant unfavourably on the grounds of her sex.

The tribunal, having taken into account the said history and those elements of the PCA which it considered were non-discriminatory, came to the conclusion that using a standard for the circuit element, which was not able to be justified, was not done in order to bring about a state of affairs, which would result in unfavourable treatment on grounds of sex. Similarly, having found the PCA itself, the elements of the PCA and the standard for the push/pull device to be justified, the tribunal was not prepared to draw any adverse inferences from the fact that, in relation to the standard for the circuit, the respondent had not been able to justify the standard set. If the tribunal had come to a different view in relation to those matters justified, then the tribunal might have been prepared to consider drawing such an adverse inference.

In these circumstances, the tribunal, having concluded that the unlawful indirect discrimination was unintentional, the tribunal had to consider whether it would be just and equitable to make an Order requiring the respondent to pay to the claimant an award of compensation, as may be appropriate, under Article 65(1B) of the 1976 Order. The tribunal, having decided to make a declaration of the claimant's rights, as aforesaid, came to the conclusion that such a remedy would not in itself be sufficient and that it would be just and equitable to make such an award of compensation.

Even if the tribunal had come to the conclusion that the respondent had applied the requirement/condition with the intention of treating the claimant unfavourably on the grounds of her sex, the result would have been the same, with the tribunal making an award of compensation, as appropriate, pursuant to Article 65(1)(b).

In considering the amount of any compensation to be awarded to the claimant by the respondent, it was necessary for the tribunal to consider whether the claimant should be made an award for injury to her feelings and, if so, the amount of any such award; but also whether the claimant was entitled to any award of compensation for loss of earnings arising from her failure to be able to become a full-time member of the regular Royal Ulster Constabulary in 1997 and in 1998 following her failure to pass the PCA in Competition 'F' in 1997 and Competition 'G' in 1998.

A considerable period of this remedy hearing related to the hearing of evidence by the tribunal, in relation to issues arising from the claimant's claim of loss of earnings. In order for the claimant to be able to establish any claim for loss of earnings, the tribunal was of the opinion that it was necessary for the tribunal to firstly assess what would have been the claimant's prospects of being appointed as a full-time member of the regular Royal Ulster Constabulary, as it then was, in the absence of any discrimination. In the opinion of the tribunal, in assessing such a head of compensation, the fact that the claimant had been unlawfully indirectly discriminated against on the grounds of her sex by requiring her to pass the PCA, which was held to be discriminatory, was, in essence, no different to the failure of a person to be recruited for a position who had been unlawfully directly discriminated against. In either situation the tribunal was required to assess, as a percentage, what were the chances of the claimant obtaining the said position. The tribunal rejected the claimant's contention that, because she had been unlawfully discriminated against, then the tribunal was obliged to assume she would have become a member of the Royal Ulster Constabulary in 1997/1998 and then make appropriate calculations as to what she might have earned and/or the rank she might have achieved during the course of a career as a full-time member of the Royal Ulster Constabulary. The tribunal was given evidence during the course of the remedy hearing, by both the claimant and the respondent, of what those earnings might have been and/or the rank that might have been achieved. In view of the decision reached by the tribunal, as set out below, the tribunal did not find it necessary to reach any conclusions and/or make any findings of fact in relation to that evidence.

The tribunal is satisfied that, in making such an assessment of the claimant's prospects of being so appointed to the Royal Ulster Constabulary, in the absence of any discrimination, it has to be on the basis of the situation that existed in 1997 and 1998 and in particular in the context of the specific PCA that was operative in relation to Competitions 'F' and 'G' in 1997 and 1998 respectively; and in light of the findings made by the tribunal in the Liability Decision in relation to that specific PCA.

In particular, as appears from the Liability Decision in this matter, the tribunal's only criticism of the PCA, used in Competitions 'F' and 'G', was the standard applied for the circuit element of the PCA. In this context, it also has to be remembered the finding of the tribunal, as set out in paragraph 10 of the Liability Decision:-

"The applicant also at no time in her evidence made any criticism of the principle, that any test to be adopted should not be gender specific but should be the same test for both male and female, designed insofar as possible, to replicate the work to be carried out by a beat and patrol officer in the Royal Ulster Constabulary. Indeed, the applicant further made no criticism of the nature of the actual tests themselves, which constituted the PCA she was required to sit but rather the standard that was set which had to be achieved by both male and female recruits."

The tribunal further found, as set out at paragraph 19 of the Liability Decision, that:-

"The circuit was an essential element of the PCA and the failure to justify, as set out above, the standard to be applied to this element meant in the tribunal's view that the PCA, the said requirement and condition, had not been properly justified."

The tribunal did not, as it was not required to do, at that time reach a decision on what requirement would have been justified in the circumstances. For the purposes of considering the assessment of the claimant's chances of being recruited as a full-time member of the regular Royal Ulster Constabulary at the material time, in the absence of discrimination, the tribunal was required firstly to consider what pass mark for the circuit might have been able to be justified by the respondent, at the time of the said competitions, and therefore make the PCA non-discriminatory. Having concluded what might have been such a pass mark, it was then required to consider whether the claimant would have been able to reach that standard.

The following figures were not in dispute by the parties.

In Competitions 'F' and 'G' the pass mark applied by the respondent for the circuit was 3 minutes 45 seconds plus 10%; and for the push/pull was 25 Kgf plus 10%. Reference to 10% is to the said compensation scheme which, as stated earlier, did not operate where both elements of the assessment had been failed; and even where one of the elements had been failed the maximum permitted level of compensation was 10%.

In Competition 'F' the claimant achieved a score of 3 minutes 48 seconds on the circuit and 23 Kgf on the push/pull.

In Competition 'G' the claimant achieved a score of 3 minutes 56 seconds on the circuit and 21 Kgf on the push/pull.

Thus, on the relevant pass marks for each element of the PCA, as relied on by the respondent at the time of the said competitions, the claimant failed the PCA and thus was not recruited as a full-time member of the Royal Ulster Constabulary.

The tribunal noted, in comparison to the said score obtained by the claimant, that, in relation to Competition 'F', the mean female score for the circuit was 3 minutes 51 seconds and for the push/pull 27 Kgf; and in Competition 'G' the female mean score for the circuit was 3 minutes 41 seconds; and for the push/pull 27 Kgf.

As was made clear in the Liability Decision, the tribunal was satisfied that the standard for the push/pull device in Competitions 'F' and 'G' at 25 Kgf was not discriminatory in itself. Therefore, in both competitions, the claimant failed the push/pull elements of the PCA. It was therefore not appropriate for the tribunal, as part of this assessment, to consider what might have been a non-discriminatory standard for the push/pull element of the PCA, as this had already been established, as set out in the said Decision, to be non-discriminatory. The issue for this tribunal was to consider what might have been a non-discriminatory standard for the circuit in relation to the PCA. Having determined what might have been an appropriate non-discriminatory standard for the circuit in relation to the PCA, it was then necessary for the tribunal to consider the claimant's actual score in the circuit and push/pull in relation to the said applicable non-discriminatory standards for both elements; and, after applying the compensation scheme if applicable, to determine whether the claimant would in fact have passed the PCA in those competitions in 1997 and 1998.

In the Liability Decision, as set in paragraph 11, the tribunal set out the details of the validation exercise which the respondent carried out in relation to establishing a standard for the circuit, and about which the tribunal expressed no criticism.

"The circuit, and the push/pull device to which further reference should be made below, were validated. The circuit was validated by using two separate groups of in-service officers. The exercises were performed to test if the components of the proposed assessment tool, were content and criterion valid and to collect normative data. Of particular importance to the working party was the acceptance of the circuit tests as a reasonable reflection of beat and patrol duties. The working party also gave the in-service officers an opportunity to play a major part in the setting of pass marks for both disciplines. The circuit test was then tried out on officers scheduled to attend divisional schools of instruction over a two week period. These were officers who performed both urban and rural policing. They were given little prior notice of the assessment but were briefed to bring training clothing with them to the school. All officers attending the school volunteered for the validation exercise, though five were screened out for medical reasons. Each officer was taken individually and shown the circuit and given a full explanation of the procedure. They were asked to give comments regarding the elements of the test and were also given the opportunity to suggest practical pass marks based on their performance and knowledge of policing patterns. Again, there seems to be no dispute by the male and female officers involved in the validation exercise of the circuit that all activities properly reflected, insofar as is possible, within such an exercise, the core activities and competencies of officers carrying out such beat and patrol work."

The tribunal further concluded in paragraph 12 of the Liability Decision:-

"The crucial finding in this exercise, in the view of the tribunal, was that the average time to complete three laps for 97 male officers was 3 minutes 6 seconds, compared with 3 minutes 54 seconds for 13 female officers."

As appears from the Liability Decision, the tribunal then considered the fact that some officers had been asked for suggested times for the circuit to be completed. These were only suggestions and were never tested and were, in the tribunal's view, of no assistance in justifying the pass mark used by the respondent for the circuit and which, in the absence of justification, were ultimately found to be discriminatory.

In paragraph 19 of the Liability Decision the tribunal further concluded:-

"… Dr Gamble, in his evidence, admitted the figure of 3 minutes 45 seconds had been 'plucked from the air', whereas Mr Henderson, who took the final decision, said it was a matter of subjective judgement. In the tribunal's view, this was not sufficient. In applying such a standard of 3 minutes 45 seconds, it was still some 15 seconds greater than the average figures referred to above. It was clear that by using such a standard, all males would still be able to achieve the standard. However, it clearly placed considerable difficulties in the way of females, who on the average actual figures could only be successful in the time of 3 minutes 54 seconds. If the suggested female figure of 3 minutes 37 seconds was a proper guide, which the tribunal could not accept in the absence of proper testing, then clearly there was more merit in the standard of 3 minutes 45 seconds; it would have borne, in those circumstances, a closer relationship to the times taken by serving female beat and patrol officers. In the tribunal's view, the only relevant figures were those of the 13 female officers who on average took 3 minutes 54 seconds, some 9 seconds greater than the standard set under the PCA. In the tribunal's view, in the absence of any attempt by the respondent to test the said suggested figures, the tribunal could not be satisfied the said standard had been properly justified….."

The tribunal had no difficulty in accepting that the claimant was a very competent constable in the full-time Royal Ulster Constabulary Reserve ("the Reserve"). Regardless of that good service, including a commendation in service and recommendations from her senior officers of her suitability to be a member of the full-time Regular Royal Ulster Constabulary, it remained necessary for the claimant, if she was to become a member of the Regular Royal Ulster Constabulary, to satisfy the entry criteria. These criteria included, in particular, in the context of this case, the necessity to pass the PCA.

As set out above, the claimant in Competitions 'F' and 'G' failed, not only the circuit element of the PCA, after applying the discriminatory standard of 3 minutes 45 seconds; but, significantly, she also failed the push/pull element of the PCA, after applying the non-discriminatory standard of 25 Kgf. The claimant also failed the PCA, both the circuit and the push/pull elements, when she was a candidate in competitions held in or about December 1995 and in or about May 1996, which applied the same standards used in Competitions 'F' and 'G'. In December 1995, in the circuit, she achieved 3 minutes 55 seconds, and in the push/pull 22 Kgf. In May 1996, she achieved 3 minutes 46 seconds in the circuit and 21 Kgf in the push/pull. As both elements were failed, the compensation scheme was not applicable.

Indeed, it was recognised by the claimant, prior to entering Competitions 'F' and 'G', that she had difficulties, in particular, in achieving the standard for the push/pull element – which standard was at all times non-discriminatory.

In view of her said difficulties, in particular with the push/pull element, the claimant, with the support of Inspector Robinson (as he now is) who in May 1996 was one of her senior officers in the Reserve, the claimant was given, at his initiative, subsequent to the competition in May 1996, a fitness training programme by one of the Force's physical training instructors. She undertook this programme to assist her general fitness for the PCA but, in particular, to assist her in achieving the relevant standard for the push/pull in forthcoming competitions. Further, the claimant, prior to Competitions 'F' and 'G', had the advantage over some other female candidates in that she had the experience of the previous competitions; unlike other 'new' female candidates who had merely the familiarisation day, which took place some 10-12 weeks before the day of testing. At the familiarisation day the candidates got the opportunity to try out the equipment and attempt those aspects of the PCA which they wished to try. This familiarisation day was introduced, as set out in the Liability Decision, in or about 1996. The tribunal further noted that, of the 25 female candidates who failed the PCA and reapplied for the Regular Royal Ulster Constabulary between 1995 and 1999, 15 passed at the second attempt and one passed at the third attempt. Of course, in doing so, such candidates passed the PCA – albeit the standard for the circuit was discriminatory, as found in the Liability Decision.

Having regard to the foregoing, the tribunal noted that the claimant was, subject to the issue of the discriminatory standard for the circuit, in a particularly advantageous position to have passed the PCA in Competitions 'F' and 'G'. Despite these apparent advantages, which the claimant had over other 'new' female candidates, the claimant still failed the PCA in Competitions 'F' and 'G'; and, in particular, the push/pull element, which standard was always non-discriminatory.

Since Competitions 'F' and 'G', there have been a series of recruitment exercises for the Regular Royal Ulster Constabulary/now the Police Service of Northern Ireland. In Competition 'I', in or about 1999, the standards for the PCA were exactly the same, including the compensation scheme, as for Competitions 'F' and 'G'. Also, the PCA was conducted by the members of the Police Force themselves. Competitions '1' and '2', held in or about 2001, also applied the same standards, but the test itself was conducted by an outside organisation called "Consensia", as part of the Patten Reforms in relation to recruitment to the Police Service of Northern Ireland.

Competition '3' took place in or about September 2002; and, following the Liability Decision in August 2002, the standard for the circuit element at that competition was changed to 3 minutes 54 seconds; the standard for the push/pull element remained at 25 Kgf and the compensation scheme remained applicable to both elements of the test. All the above competitions, following Competitions 'F' and 'G', took place, in the same way as Competitions 'F' and 'G', at the initial stages of the recruitment process and before attendance at the Police Training College at Garnerville, Belfast.

Competitions '4' and '5', which were in or about 2003/2004, were conducted in a number of different ways to those which had been run previously, as set out above. Firstly, the PCA, and also the firearms test, were not held in the initial stage of the recruitment process, but at the end of the 20-week training period at the Police Training College at Garnerville. That training included a specific fitness training programme throughout the period of training. Further, a new standard for the circuit of 3 minutes 43 seconds was imposed for Competitions '4' and '5' – which can be seen to be slightly reduced from the standard which was found to be discriminatory in Competitions 'F' and 'G' in the Liability Decision. In addition, the compensation scheme was no longer applied – requiring each separate element therefore always to be passed. In Competition '5' a further refinement was introduced by slightly increasing the standard of the push/pull to 26 Kgf. These further changes also followed the Patten Reforms to the Police Service of Northern Ireland, but also a validation exercise of the PCA, carried out on behalf of the Police Service of Northern Ireland, by Sheffield Hallam University.

If the circumstances in relation to the PCA, in all subsequent competitions, had been the same as in Competitions 'F' and 'G', what occurred in relation to each subsequent competition, and in particular the numbers of female candidates passing the PCA, might have been of some assistance and relevance to the tribunal in determining whether the claimant would have been able to join the Police Force in 1997 and 1998 – if a non-discriminatory standard had been imposed in relation to the circuit element of the PCA. But, clearly, the circumstances were not the same, for the reasons set out above. The tribunal considers, in such circumstances, it would therefore be wrong to express any view on the validity or otherwise of the different standards that have now been imposed, unless such different standards were of relevance to the issues before this tribunal. The tribunal did not consider, as set out above, that what has occurred subsequently in these changed circumstances is of any assistance or relevance to the issues presently before this tribunal.

The claimant drew attention to the fact, which was not disputed by the respondent, that following the change of the PCA to the end of the period of training at Garnerville, almost 100% of the females candidates now pass the standard for the circuit; whereas, in Competitions 'F' and 'G', there was a pass rate of 53% and 68% respectively, and which had increased to 85% in Competition 'I'. There could be many reasons for this increase to almost 100%, including not only the increase in the number of female recruits to the Police Force itself in recent years, but also the specific fitness training regime imposed at the College, which involves giving additional targeted assistance to those who appear, at the initial stage of training, to be most at risk of failing. It also has to be remembered that, with this change, there has been the abolition of the compensation scheme, a slightly reduced standard for the circuit, to that used in Competitions 'F' and 'G', and found to be discriminatory, and a slight increase in the push/pull standard. Indeed, merely applying the scores achieved by the claimant in Competitions 'F' and 'G', she would still fail the PCA. It confirms, in the tribunal's view, the dangers of comparing such elements of data; where the circumstances, as existed at the dates of Competitions 'F' and 'G', and which are the relevant dates, no longer exist.

It is correct there is now a change in the timing of the recruitment process when the competition takes place; the test that the claimant was required to take part in was at the initial stage of the recruitment process. At the hearing, which led to the Liability Decision, and based upon which a remedy is now sought, there was no evidence, or indeed criticism, of the stage in the recruitment process, when the PCA was conducted. Nor was there any issue raised at that hearing that by conducting the PCA, at that stage, it was in any way discriminatory. If the tribunal had found, in the Liability Decision, that the holding of the PCA at the initial stage of the recruitment process was in some way discriminatory, there might have been some relevance to the claimant drawing the tribunal's attention to the fact that whenever the PCA has been conducted, after attendance at the Police Training College in Garnerville, almost all the female candidates have passed the PCA. However, since this was not the situation at the relevant time, the tribunal was not satisfied that what now occurs, in relation to the stage when the PCA takes place, could be of any relevance to determining the remedy to which the claimant is entitled.

The tribunal, in determining whether the claimant in either Competition 'F' or 'G' would have passed the PCA, and thereby be able to join the Regular Royal Ulster Constabulary, had to consider what might, at that time, have been held to be a non-discriminatory standard for the circuit element; and whether, after applying that standard to the circuit, together with the relevant standard for the push/pull, and after taking account of the compensation scheme, if applicable, the claimant would have passed the PCA. If she would not, then she would not have been able to become a full-time member of the Royal Ulster Constabulary, and therefore not be entitled to any loss of earnings.

As set out in the Liability Decision, the tribunal had no criticism of the fact that the PCA was job-related. Further, the tribunal had no criticism to make of the validation exercise using serving beat and patrol officers. This resulted in the respondent obtaining the only actual times of how long it would take to carry out the circuit by such persons. These were the actual times taken by beat and patrol officers, whose jobs the circuit test was trying to replicate for the purposes of assessment. This validation exercise revealed that the 97 male officers on average took 3 minutes 6 seconds, whilst the 13 female officers on average took 3 minutes 54 seconds. As stated in paragraph 19 of the Liability Decision, these times were of critical importance in carrying out the required balancing exercise by the respondent to enable it to determine a non-discriminatory standard to be applied for the circuit. The tribunal accepted, as set out in paragraph 19 of the Liability Decision, that if the figure of 3 minutes 37 seconds, as suggested by the female beat and patrol officers, in comparison to their actual times, had been properly tested (which it was not), there might have been more merit in the standard applied of 3 minutes 45 seconds. But, in the absence of same, the tribunal considered that the only relevant time was what was actually achieved. In the absence of any other evidence showing testing of any lesser figure, the tribunal concluded that the relevant figure was that achieved by those 13 female officers who on average took 3 minutes 54 seconds – carrying out the test which was to replicate the job of such an officer. Given such evidence, the tribunal is satisfied that, if the standard for the circuit had been 3 minutes 54 seconds, that the tribunal would have concluded that such a standard had been objectively justified and was non-discriminatory.

The claimant submitted that the proper standard for the circuit should be in fact 3 minutes 54 seconds plus 10%, giving a standard of 4 minutes 17 seconds. Clearly realising that, even if this was applied to Competitions 'F' and 'G', the claimant would still fail, due to her failure at the push/pull, the claimant said that the standard required to be 4 minutes 17 seconds, together with, where appropriate, use of the compensation scheme. The tribunal had a considerable sympathy for the view of Mr Henderson, the respondent's Director of Physical and Health Education, that such a standard, which was meant to be a physical challenge for the police officers, would make, with the addition of 10% to the average time taken by the female officers on the validation exercise, plus the use of the 10% compensation scheme, the standard meaningless. In contending for the above standard of 4 minutes 17 seconds, the claimant relied on the fact that Mr Henderson had given evidence, during both hearings, that during basic training an individual's fitness increased in the region of 10% and that that should be in some way reflected in the standard for those taking the test, who would not have done such basic training. This, of course, ignored the fact that candidates were likely to have trained for the test, as the claimant herself did. Also, the average female mean scores for Competition 'F' were 3 minutes 51 seconds and in Competition 'G' 3 minutes 46 seconds – these scores were less than the times taken on the validation exercise. Further, the beat and patrol officers who took part in the validation exercise were serving officers, who had completed basic training; they were subsequently attending a divisional school of instruction and were asked to do the test with little prior notice, though they had been told to bring training clothing with them. The tribunal approved the choice of such officers as part of the validation exercise. Their actual scores in that validation exercise were, in the tribunal's view, a proper and appropriate reflection of an average female member of the Force, which the claimant wished to join. Mr Henderson, both in evidence before the tribunal at the Liability Hearing, as set out in paragraph 12 of the Liability Decision, and at this Remedy Hearing, did not accept the increase of fitness during basic training was a figure of 10%, but said it was somewhere in the region of 7/8%. Whatever the precise figure – the tribunal was of the view that, in such a job-related assessment, the only relevant figure in relation to the standard for the circuit was that actually achieved for the circuit in the said validation exercise, namely 3 minutes 54 seconds, by those serving officers, whose jobs the claimant aspired to. It therefore had no hesitation in rejecting the claimant's standard, which was highly speculative. It was also subjective, having been clearly designed to get over her own particular personal difficulties, having regard to the necessity for her to not only raise the standard for the circuit; but also, given her failure in the push/pull, the necessity to take advantage of the compensation scheme.

The tribunal, on the basis of the above findings, came to the conclusion that the minimum justifiable and therefore non-discriminatory standard for the circuit, in relation to the situation at the time of Competitions 'F' and 'G', was 3 minutes 54 seconds.

Having so concluded, it was then necessary for the tribunal to consider applying the said standard and whether this would have made any difference to the result for the claimant in the PCA in Competitions 'F' and 'G'. In relying upon such a standard of 3 minutes 54 seconds to the circuit, there was no dispute between the parties that this would have produced the following result, as set out in the witness statement of Mr Henderson, the Director of Physical and Health Education of the Police Service of Northern Ireland Occupational Health and Welfare Branch.

"6.0 Competition: F (September 1997) – calculation for Ms Dougan based on a Circuit Standard of 3m: 54sec (234s) and a Push/Pull Standard of 25 kgf

Ms Dougan's scores were: Circuit Time: 3m 48sec (228 sec) Push/Pull: 23kgf

Step 1: Calculate the factor by which Ms Dougan would have bettered the proposed standard of 3m: 54s

=234 = 1,026 (ie 2.6%)

228

Step 2: Apply this factor to the push/pull score, namely 23 x 1,026 = 23.6 kgf

Result: Ms Dougan would have failed the test as she did not perform well enough in the circuit.

Question: What circuit time is required to compensate for a Push/Pull score of 23 kgf?

Step 1: Factor required = 25 = 1,087 (ie 8.7%)

Step 2: Apply to suggested standard of 3m: 54sec (234s)

= 234 = 215.3sec

1,087

= 3m: 35s

Ms Dougan would have needed to better her circuit time by 13 secs.

Ms Dougan's scores were circuit time: 3m 56s (236s) Push/Pull: 21 kgf

Result: Ms Dougan would have failed as she failed both elements of the test and therefore the compensation scheme does not apply.

The tribunal, having concluded that the standard the claimant would have had to satisfy, if there had been no discrimination, would have been 3 minutes 54 seconds for the circuit and 25 Kgf for the push/pull, together with the said compensation factor, the claimant would therefore not have been able to be appointed, as a full-time member, of the Royal Ulster Constabulary in either 1997 or 1998, following Competitions 'F' and 'G'.

In these circumstances, the tribunal therefore concluded that the claimant was not entitled to any award for loss of earnings, as she would not have become a full-time member of the Royal Ulster Constabulary, and therefore would not have obtained any such earnings from the Royal Ulster Constabulary. In the circumstances, it was therefore not necessary or relevant for the tribunal to consider the various figures produced in evidence as to the potential earnings for the claimant in the Royal Ulster Constabulary and/or the potential rank she could have obtained and/or whether, as alleged by the respondent, she had failed to mitigate her later loss. Mr O'Hara did not dispute that if the claimant had been able to pass the PCA in Competition 'F' in 1997 that the claimant would have become a full-time member of the Royal Ulster Constabulary, as he accepted that she would have passed, at that time, the necessary medical examination. Mr O'Hara also accepted that, if the claimant had passed Competition 'F', that she would not have been in the position to be injured in the training accident in the period between the two competitions. In relation to Competition 'G' in April 1998, Mr O'Hara was not prepared to make the same concession in relation to the medical examination that the claimant would have had to pass at that time following any successful passing of the PCA. This was because the claimant suffered a training accident in her capacity as a member of the Royal Ulster Constabulary Reserve, in the period between the two competitions, and which injury played a significant part in the claimant's ill health retirement from the Reserve in August 2003. However, given that, as set out above, the claimant would have failed the PCA, in any event, applying the standard of 3 minutes 54 seconds for the circuit, the tribunal did not find it necessary to consider further whether or not the claimant would have passed the medical examination following Competition 'G'.

Whilst the tribunal was of the view that the claimant was not entitled to an award of compensation for any loss of earnings, it was satisfied that, as a result of the unlawful discrimination on the grounds of her sex, she had suffered injury to her feelings and was therefore entitled to an award of compensation for the injury to her feelings. The tribunal was satisfied that the claimant had been most upset and distressed by her failure in both competitions, where she has been found to have been unlawfully discriminated against on the grounds of her sex. Indeed, the fact that she was discriminated against on two occasions served to heighten the injury suffered by her – though the tribunal accepted that there had to have been an element of overlap in the injury to feelings suffered by her, arising out of the two acts of unlawful discrimination. However, the tribunal, in assessing the injury to her feelings, came to the conclusion that a significant element of the injury to her feelings claimed by the claimant related to her view that, as a result of the unlawful discrimination, she had lost her career as a full-time member of the Royal Ulster Constabulary, which was something that she had always been particularly keen to achieve. Given that the tribunal has concluded that she would never have achieved such a career, even if she had not been unlawfully discriminated against; then, in the tribunal's view, she was not entitled, in the tribunal's way, to be compensated for any injury to her feelings arising from such loss of career.

Having regard to the various bands set out in the case of Chief Constable of West Yorkshire Police -v- Vento (No 2) 2002 IRLR, the tribunal came to the conclusion that the appropriate award for an injury to feelings, in relation to each claim, was in the lower band referred to in Vento. The tribunal further concluded that the appropriate award to be made in relation to the claimant's injury to feelings in respect of her first claim (case reference 03244/97SD), which relates to Competition 'F', should be £3,000; and in relation to case reference 01734/98SD, which relates to Competition 'G', should be £2,500 – reflecting the degree of overlap between the two claims referred to above.

Whilst the respondent was unable to satisfy the tribunal that the standard for the circuit used in the said competitions was justified, and therefore was discriminatory, the tribunal was not satisfied that, in failing to do so, the respondent thereby behaved in a "high-handed, malicious, insulting or oppressive manner in committing the act of discrimination" (see Alexander -v- Home Office (1988) 2AER 118). The tribunal so concluded, having taken into account, as set out previously, the whole history of how the PCA came to be developed, the research carried out in relation to same and how all the standards that had been justified were obtained. In the circumstances, the tribunal therefore did not consider that any award of aggravated damages would be appropriate in assessing the award for injury to feelings, as set out above.

The tribunal therefore makes an order declaring the rights of the claimant in the following terms:-

"The tribunal makes a declaration that the claimant was unlawfully indirectly discriminated against on the grounds of her sex, and contrary to the terms of the Sex Discrimination (Northern Ireland) Order 1976 in the arrangements, namely the Physical Competence Assessment, that he made in connection with her applications to become a full-time member of the regular Royal Ulster Constabulary in 1997 (Competition 'F') and in 1998 (Competition 'G')."

The tribunal considered whether to award interest under the provisions of the Industrial Tribunal (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996 ("the Regulations") and concluded that it should include interest on the sum so awarded in relation to the injury to the claimant's feelings.

For the purposes of the Regulations:-

Case reference 03244/97SD

Date of act of discrimination – 1 September 1997

Calculation date – 30 March 2006

Case reference 01734/98SD

Date of act of discrimination – 20 April 1998

Calculation date – 30 March 2006

The tribunal therefore awards compensation as follows:-

(1) Case reference 03244/97SD

(a) Injury to feelings - £3,000

(b) Interest at 8% per annum from 1 September 1997 to
30 March 2006 - £2,058.74

Total - £5,058.74

(2) Case reference 01734/98SD

(a) Injury to feelings - £2,500

(b) Interest from 20 April 1998 to 30 March 2006 - £1,589.04

Total - £4,089.04

Total award of compensation:-

(1) and (2) - £9,147.78

This is a relevant Decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 9, 10, 12, 13 January 2006, Belfast

Date decision recorded in register and issued to parties:

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Dougan v Chief Constable of the Royal Ulster Constabulary [2006] NIIT 3244_97SD (13 January 2006) URL: http://www.bailii.org/nie/cases/NIIT/2006/3244_97SD.html Cite as: [2006] NIIT 3244_97SD