THE INDUSTRIAL TRIBUNALS

CASE REF:  494/08

CLAIMANT:		Catherine Diane Armstrong

RESPONDENT:	Chief Constable of the Police Service For Northern Ireland

DECISION
The unanimous decision of the tribunal is that the claimant’s claims of direct and indirect sex discrimination are dismissed.

Constitution of Tribunal:
Chairman:		Mr S A Crothers
Members:		Mr J Boyd
			Mrs T Kelly

Appearances:
The claimant was represented by Miss S Bradley, Barrister-at-Law, instructed by the Equality Commission.
The respondent was represented by Mr A Colmer, Barrister-at-Law, instructed by the Crown Solicitor’s Office.

THE CLAIM

 1.	The claimant claimed that she had been directly discriminated against by the respondent on the ground of her sex and also claimed indirect discrimination on the same ground.  The claimant also alleged that there had been a deliberate omission by the respondent.  The respondent denied the claimant’s allegations in their entirety.  

ISSUES BEFORE THE TRIBUNAL

 2.	Issues were agreed by both parties’ representatives at a previous Case Management Discussion on 9 September 2008 and confirmed again at the outset of the hearing.  However, an additional legal issue arose in the claimant’s written submissions.  During the oral submissions on 27 May 2009, the tribunal enquired as to whether there was also an out of time issue arising in the case.  Consequently, both issues were added to the original issues and are produced at paragraphs 1-5 below.  The original issues, as agreed by the parties, are listed at paragraphs 6-8 below.  The totality of the issues before the tribunal were as follows:-

	(1)	Is the claimant prevented by virtue of Article 84(3) of the Sex Discrimination (Northern Ireland) Order 1976 (“the Order”) from presenting a claim to the tribunal?

	(2)	If so, is Article 84(3) of the Order incompatible with Equal Treatment Directive 76/207/EEC (“the Directive”)?

	(3)	Is the Directive directly applicable in Northern Ireland to the respondent and, if so, should the tribunal overrule the provisions of Article 84(3) of the Order to give effect to the Directive?

	(4)	If the answer to (3) is “no”, is the Directive indirectly effective in order for Article 84(3) of the Order to be construed or disapplied to the extent necessary so as to achieve the aims envisaged by the Directive?

	(5)	Was any part of the claimant’s claim presented outside the statutory time limit and if so, should time be extended on a just and equitable basis to enable that part of the claim to be accepted?

	(6)	Did the respondent directly discriminate against the claimant on the ground of gender in relation to the provision of individual heavy anti-ballistic Personal Protective Equipment (“PPE”)?

	(7)	Did the respondent indirectly discriminate against the claimant by applying a provision criterion or practice which he applied equally to male officers but:-

			(i)	which put female officers at a particular disadvantage when compared with men,

(ii)	which put the claimant at that disadvantage, and

(iii)	which he cannot show to be a proportionate means of achieving a legitimate aim.

	(8)	Has the respondent complied with the statutory grievance procedure and, if not, is the claimant entitled to an uplift in damages?

SOURCES OF EVIDENCE

 3.	The tribunal heard evidence from the claimant and on her behalf, from Constable Lynsey Catherine Beggs, Constable Rebecca Rowan, and Constable Linda Ingram.  On the respondents’ behalf the tribunal heard evidence from Campbell Browne, Head of Procurement and Logistics Service, Paul Crothers, Higher Scientific Officer, Michael Murray, Technical Research Officer, Catherine Burke, Chief Physiotherapist, Chief Superintendent Gary White, Superintendent Nigel Grimshaw, Chief Inspector Robert Muir Clarke, Sergeant John Montgomery, and Chief Inspector Yvonne Davidson.  

	The tribunal was presented with agreed bundles of documents which, apart from the bundle containing the witness statements, extended to over 1300 pages.  It was clear at the outset of the hearing that the time allocated to hear the case had been under-estimated by both parties’ representatives.  The tribunal brought this matter to their attention before any evidence was heard.  The case was relisted from 20-24 April 2009, but had to be postponed due to bereavement within the Chairman’s family.  The tribunal was also assisted by a statement of agreed facts in the form of an agreed chronology of events which is appended to this decision (“the Agreed facts”).

ARTICLE 84 OF THE ORDER AND THE DIRECTIVE

 4.	(1)	Article 84 of the Order, insofar as relevant to this case, states as follows:-

“The Police Service of Northern Ireland and the Police Service of Northern Ireland Reserve

		84.―(1)  For the purposes of Part II, the holding of the office of constable as a police officer shall be treated as employment―

			(a)	by the Chief Constable as respects any act done by him in relation to that office or a holder of it;

			(b)	by the Policing Board as respects any act done by it in relation to that office or the holder of it.

		   (2) Regulations under section 25 or 26 of the Police (Northern Ireland) Act 1998 or section 41 of the Police (Northern Ireland) Act 2000 shall not treat men and women differently except―

			(a)	as to requirements relating to uniform or equipment or allowances in lieu of uniform or equipment.

		   (3) Nothing in Part II renders unlawful any discrimination between male and female constables as to matters such as are mentioned in paragraph (2)(a).

	(2)	Section 25 of the Police (Northern Ireland) Act 1998 states as follows:-

		(1)	Subject to the provisions of this section, the Secretary of State may make regulations as to the government, administration and conditions of service of members of the Royal Ulster Constabulary.  

		(2)	Without prejudice to the generality of sub-section (1), regulations under this section may make provision with respect to―

				….. 

			(l)	the issue, use and return of equipment”.

	Section 73(1) of that Act and Section 77(1) of the Police (Northern Ireland) Act 2000 interpret equipment as including “vehicles, apparatus, furniture, fittings, accoutrements and clothing”.

		(3)	Regulation 45 of the Police Service for Northern Ireland Regulations 2005 provides as follows:-

				“45.  The Secretary of State shall determine the circumstances in which and the conditions subject to which uniform and equipment is to be issued to members of the Chief Constable, and in making such a determination the Secretary of State may -

(a)	confer discretion on the Board to specify the type of uniform to be issued;

(b)	confer discretion on the Board to specify the type of equipment to be issued”.

			It was common case that Regulation 45 did not apply to the circumstances of this case in that the requirements envisaged by way of Regulations under Article 84 of the Order were issued at local level.  Furthermore, the tribunal was not satisfied that heavy anti-ballistic Personal Protective Equipment is within the definition already referred to.  The tribunal is also satisfied that such PPE is not properly classified as uniform.  In both respects the tribunal received some assistance from the respondent’s Style Guide and in particular Sections 5 and 6 thereof.

		(4)	In the alternative, the tribunal is satisfied that the Police Service of Northern Ireland is an emanation of the State.  Article 2 of the Directive states as follows:-

				“1.  For the purposes of the following provisions, the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status”.

		(5)	The tribunal received considerable assistance from the judgment of Lord Hope in the House of Lords decision in Rhys-Harper  v  Relaxion Group Plc [2003] IRLR 484.  At paragraphs 104 and 105 of his judgment he states as follows:-

			“Community Law

			In Mrs Rhys-Harper’s case it is necessary, as said earlier (see paragraph 76), to take account of the fact that the Sex Discrimination Act 1975 gave effect in domestic law to Council Directive 76/207/EEC (‘the Equal Treatment Directive’).  The conclusion which one draws from this exercise may have implications for all the other cases too, as I shall explain later.  The Directives does not, of course, have direct effect on the relationship between a woman and her employer.  The third paragraph of Article 249 of the EC Treaty (formerly Article 189 EEC) provides that a Directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed but that it shall leave to the national authorities the choice of form and method.  So a Directive works its way into our domestic system by means of the legislation which is designed to give effect to it.  It is then for the courts to interpret that legislation, as far as possible, in a way that gives effect to this country’s obligations under the treaty.   

			In Lister  v  Forth Dry Dock and Engineering Co Ltd [1989] IRLR 161, 165 Lord Oliver of Aylmerton said that the approach to the construction of primary and subordinate legislation enacted to give effect to the United Kingdom’s obligations under the EEC treaty was not in doubt:

				‘If the legislation can reasonably be construed so as to conform with those obligations – obligations which are to be ascertained not only from the wording of the relevant Directive but from the interpretation placed on it by the European Court of Justice at Luxembourg – such a purposive construction will be applied even though, perhaps, it may involve some departure from the strict and literal application of the words which the legislature has elected to use.’”

			In Webb  v  Emo Air Cargo (UK) Ltd [1993] IRLR 27, 32 Lord Keith of Kinkel said:
				‘… it is for a United Kingdom court to construe domestic legislation in any field covered by a Community Directive so as to accord with the interpretation of the Directive as laid down by the European Court of Justice, if that can be done without distorting the meaning of the domestic legislation …’

			The tribunal is satisfied that it has jurisdiction to deal with the claimant’s claim on both grounds and that the relevant wording in Article 84 of the Order can be construed to include heavy anti-ballistic PPE so as to accord with the Directive.

OUT OF TIME ISSUE

 5.	(1)	Article 76 of the Order, in so far as relevant, states as follows:-

	“Period within which proceedings to be brought.

	   76.―(1)  An industrial tribunal shall not consider a complaint under Article 63 unless it is presented to the tribunal before the end of

		(a)	the period of three months beginning when the act complained of was done; …..

	     (5)  A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

	     (6)  For the purposes of this Article―

		… 

		(b)	any act extending over a period shall be treated as done at the end of that period, and

		(c)	a deliberate omission shall be treated as done when the person in question does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it were to be done.”

(2)	In relation to the out of time issue, the tribunal, also taking into account the chronology in the agreed facts, made the following findings of fact insofar as same are relevant to that issue;

	(i)	The claimant joined the respondent in November 1995.  There were two IRA ceasefires in 1994 and 1997.  The height restriction for officers had been abolished in 1994 and after 2001 there was increased recruitment to include more female officers.  In the aftermath of the ceasefires there was a decreasing need for heavy anti-ballistic PPE.  On 1 November 2006 a direction was issued by Assistant Chief Constable Toner that officers must wear heavy anti-ballistic PPE as a dissident threat had emerged.  The direction was implemented on 25 January 2007.  The claimant was on restricted duties at this time and did not request heavy anti-ballistic PPE.  The threat was scaled down on 27 March 2007 and thereafter it was no longer mandatory to wear the heavy anti-ballistic PPE.  Wearing of such PPE became optional.  

	(ii)	The claimant was a smaller framed officer.  She alleged that she had difficulties in wearing the existing anti-ballistic body armour and raised the issue with Superintendent Grimshaw on 5 February 2007 and again in a Police Federation of Northern Ireland Central Committee meeting on 26 February 2007.  There was also an exchange of e-mails between the claimant and the respondent on the issue.  The claimant requested personal issue body armour and claimed that she had spoken to Chief Inspector Clarke on 26 March 2007 and raised the issue of sex discrimination.  In an e-mail of 27 March 2007 to S McCann she refers to her conversation with Chief Inspector Clark in relation to discrimination involving female officers.  The claimant’s case was that she had received less favourable treatment as follows:-

		(a)	there had been a failure to provide her with personal issue heavy anti-ballistic PPE; and 

		(b)	the respondent had also failed to provide her with properly fitting heavy anti-ballistic PPE.  

		(These allegations related also to the period from 8 November 2007 until 20 March 2008 when she presented her claim to the tribunal).  

	(iii)	The claimant was also seeking to establish a case of indirect discrimination in relation to this period.  Her case, for the purposes of indirect discrimination, was that the provision criterion or practice being relied on was the requirement placed on her by the respondent to wear heavy body armour during periods when the dissident threat was at its height.  There was a further period of heightened threat in November 2007, and on 8 November 2007 officers were again required to wear the heavy anti-ballistic PPE.  In the interim period, between 27 March 2007 and 8 November 2007, the claimant had continued periodically to make representations regarding the issue.  On 2 June 2007 Sergeant Montgomery provided the claimant with heavy anti-ballistic PPE which she claimed was too big and meant that she could not comfortably access her personal issue firearm.  She asked for the next size down.  Personal issue body armour was again supplied to the claimant by Sergeant Montgomery on 
                      8 September 2007.  However the claimant was not satisfied that it met her requirements.  She raised the issue of discrimination again in an e-mail to the PSNI and Chief Inspector Cameron on 23 November 2007 and, having raised a grievance through her solicitors on 19 February 2008, presented her claim to the Tribunal on 20 March 2008.  She claimed that she was not properly fitted with suitable heavy anti-ballistic body armour until 29 September 2008.

(3)	(i)	Owing to the fact that out of time issue had not been addressed during the course of evidence, the tribunal did not have the opportunity of hearing from the claimant as to her reasons for the delay in presenting a claim in relation to the November – March period 2006/2007.  Counsel for the claimant relied on the fact that she had raised the issue in e-mails both before and after this time period, and that there was no prejudice to the respondent, in order to found her contention that time should be extended on a just and equitable basis.  No application was made to recall the claimant to give evidence on the issue.  The respondent’s counsel opposed this application, essentially on the basis that no reasons had been given by the claimant as to why a separate claim had not been made earlier.

	Harvey on Industrial Relations and Employment Law (“Harvey”) states at Division T279, as follows:-

		“The discretion to grant an extension of time under the just and equitable formula has been held to be as wide as that given to the civil courts by s 33 of the Limitation Act 1980 to determine whether to extend time in personal injury actions (British Coal Corpn  v  Keeble, DPP  v  Marshall, above).  Under that section the court is required to consider the prejudice which each party would suffer as a result of granting or refusing an extension, and to have regard to all the other circumstances, in particular: (a) the length of and reasons for the delay; (b) the extent to which the cogency of the evidence is likely to be affected by the delay; (c) the extent to which the party sued had co-operated with any requests for information; (d) the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and (e) the steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action (see British Coal Corpn  v  Keeble [1997] IRLR 336, at para 8).  However, although, in the context of the ‘just and equitable’ formula, these factors will frequently serve as a useful checklist, there is no legal requirement on a tribunal to go through such a list in every case, ‘provided of course that no significant factor has been left out of account by the employment tribunal in exercising its discretion’ (Southwark London Borough  v  Afolabi [2003] EWCA Civ 15, [2003] IRLR 220 at para 33, per Peter Gibson LJ).

		When considering whether to grant an extension of time under the ‘just and equitable’ principles, the fault of the claimant is a relevant factor to be taken into account, as it is under s 33 of the Limitation Act (Virdi  v  Comr of Police of the Metropolis [2007] IRLR 24, EAT).  But if it is the claimant’s solicitors who are at fault in presenting the claim, then such fault cannot be laid at the door of the claimant; accordingly, if the solicitors are negligent, the mere fact that the claimant may have a potential claim against them will not justify the refusal of an extension of time (Virdi, apply the principles set out in Steeds  v  Peverel Management Services Ltd [2001] EWCA Civ 419, [2001] All ER (D) 370 (Mar), in relation to an extension under s 33).”

	(ii)	The tribunal considers it appropriate to refer to the relevant part of the claimant’s grievance as articulated in correspondence from her solicitors of 19 February 2008 to the Chief Constable as follows:-

			“Dear Sir

			Re: Diane Armstrong

			We have been consulted by Ms Diane Armstrong in relation to the non provision of satisfactory flak body armour by you her employer.  

			Our Client has been a serving officer since November 1995 and is currently stationed at Grosvenor Road Police Station.

			Our Client instructs us that in or around November 2006 the level of threat was heightened in North and West Belfast and an order went out for all officers to wear heavy ballistic, commonly referred to as male type flak jackets.  Whereas the men are fitted with personal issue flak jackets an ad hoc system of sharing a pool of spare flak jackets was in place for female officers.  Our Client commented that this system was unsatisfactory.  She noted that there were the obvious difficulties of hygiene associated with the sharing of these jackets.  In addition there was often no choice of flak jacket resulting in female officers having to wear ill fitting flak jackets.

			Our Client raised this issue of non personal issue of suitable body armour for women with her command but the threat disappeared and the issue was temporarily side lined.

			She states around the same time female officers were being provided with stab vests.  The stab vest itself was again of a lesser protection from a ballistic point of view.  Therefore her male counterparts had two levels of protection; they had a stab vest and a heavy ballistic flak jacket whereas she had only a stab vest.

			In or around November 2007 an email was issued advising our client and her colleagues that the level of threat was increased in North and West Belfast and ‘A’ District were ordered to wear heavy ballistic protection when on patrol.”

(iii)	The tribunal has carefully considered the matter in relation to the out of time issue and is not satisfied, in relation to the indirect discrimination complaint, that it should extend time on a just and equitable basis, especially as the reasons for the claimant not submitting a claim earlier is a significant factor which the tribunal is satisfied it must take into account.  Furthermore, the provision criterion and practice relied on by the claimant in relation to indirect discrimination does not go beyond 27 March 2007 and is not therefore a continuing act, as the claimant’s counsel conceded.  

(iv)	In relation to the direct discrimination complaint, the claimant’s case was that there was a continuing act which commenced in November 2006 and ran beyond 27 March 2007 up until 20 March 2008.  An act extending over a period was considered by the Court of Appeal in Hendricks  v  Metropolitan Police Commissioner [2002] EWCA Civ 1686, in which Mummery LJ stated as follows:-

	“(The claimant) is entitled to pursue her claim beyond the preliminary stage on the basis that the burden is on her to prove either by direct evidence or by inference from primary fact that the numerous alleged incidents of discrimination are linked to one another and that they are evidence of a continuing discriminatory state of affairs covered by the concept of an act extending over a period … the question is whether there is an act extending over a period as distinct from a succession of unconnected and isolated specific acts for which time would begin to run from the date when each specific act was committed”.

	Harvey on Industrial Relations and Employment Law (“Harvey”) at T para 118.01 states as follows:-

	“The Court of Appeal has cautioned tribunals against applying the concepts of ‘policy, rule, practice, scheme or regime’ too literally, particularly in the context of an alleged continuing act consisting of numerous incidents occurring over a lengthy period (Hendricks  v  Metropolitan Police Comr [2002] EWCA Civ 1686, [2003] IRLR 96 at para 51-52).  According to Mummery LJ, these terms were mentioned in the above authorities as examples of when an act extends over a period, and ‘should not be treated as a complete and constricting statement of the indicia’ of such an act.  In cases involving numerous allegations of discriminatory acts or omissions, it is not necessary for a claimant to establish the existence of some ‘policy, rule, scheme, regime or practice, in accordance with which decisions affecting the treatment of workers are taken’.  Rather, what he has to prove, in order to establish a continuing act, is that (a) the incidents are linked to each other, and (b) that they are evidence of a ‘continuing discriminatory state of affairs’.  This will constitute ‘an act extending over a period’.

	(v)	In Article 2(1) of the Order, “act” includes a deliberate omission.  The claimant’s counsel contended, in the alternative to a continuing act, that there had been a deliberate omission by the respondent.  This again spanned the period from 1 November 2006 until 20 March 2008.  The tribunal considered the comments in Harvey at T123-125 which include the following:-

		“In bring a complaint under this head, it is important to ascertain whether, and if so, when, the cause of action is crystallised.  As noted above if the cause of action is not complete, the claim is premature and cannot be heard (see Clarke  v  Hampshire Electro-Plating Co Ltd [1991] IRLR 490).”

	The definition of deliberate omission is referred to in the case of Barclay’s Bank Plc  v  Kapur [1991] ICR 208 where, at paragraph 213 Lord Griffith stated:

	“It would probably be unwise to attempt to define a ‘deliberate omission’ but I get the distinct impression that it was included by the draftsman as a sweeping-up provision intended for the protection of employees and addressed to activities peripheral to the employment rather than to the terms of the employment itself and intended to cover a one off rather than a continuing situation: for example a deliberate failure to notify a coloured employee of a vacancy for a better job in the company when all his white comparators were invited to apply for a job”.

	The tribunal is satisfied that such a claim is premature.  It concludes that the respondent did an act inconsistent with doing the omitted act when it provided the claimant with suitable and properly fitting heavy anti-ballistic PPE in September 2008, some months after the presentation of her claim to the tribunal.

(vi)	It appeared to be part of the claimant’s case that non-deliberate omissions could constitute acts of discrimination. In light of this the tribunal considered that the case of Matuszowicz  v  Kingston upon Hull City Council [2009] EWCA Civ 22  may have a material bearing on this aspect of the case and therefore brought it to the attention of the parties’ representatives.  The tribunal received further written submissions on this case and heard oral submissions on 12 June 2009.  The case decided that even where failure to make a reasonable adjustment in employment under the Disability Discrimination Act is continuing and non deliberate, there is a cut off point for when a claim can be made.  As Lord Justice Sedley states at paragraph 35 of his judgement;-

	“The point of general importance which emerges from his judgment, and is worth stressing, is that the effect – unfortunately not a readily obvious one – of paragraph 3 of Sch 3 to the 1995 Act is to eliminate continuing omissions from the computation of time by deeming them to be acts committed at a notional moment.  The evident purpose is to prevent a situation of neglect from dragging on indefinitely, and to do this, where no overtly inconsistent act has set time running, by putting the onus on the claimant to decide when something should have been done about the omission and to bring his or her claim within 3 months of that date.

	For obvious reasons this can create very real difficulties for claimants and their advisers.  But there are at least two ways in which the problem may be eased.

	One is that claimants and their advisers need to be prepared, once a potentially discriminatory omission has been brought to the employer’s attention, to issue proceedings sooner rather than later unless an express agreement is obtained that no point will be taken on time for as long as it takes to address the alleged omission”.

	The claimant’s case also included the contention that a series of non deliberate omissions in the form of the alleged failures could constitute a continuing act.  However the claimant’s counsel was unable to point to a notional moment.

	Further, as Lord Justice Lloyd states at para 14 of the decision:-

	“The possibility of an omission being something which ought to be subject to anti-discrimination legislation had been considered in the previous legislation and is the subject of express provision which has been copied in the 1995 Act.  Thus in section 68(1) of the 1995 Act, “act” is defined as including a “deliberate omission”.  So far so good; that provision may well not give rise to any particular problems in relation to the other anti-discrimination regimes.  In relation to the 1995 Act, however, the duty to make reasonable adjustments does give rise to the possibility that there may be inadvertent and non-deliberate omissions on the part of the employer which are breaches of the duty to make reasonable adjustments and therefore acts of discrimination.  No problem arises in relation to the definition of acts of discrimination in this respect.  The problem arises when one considers the provisions defining the period within which proceedings must be brought.”

	The case relates to a duty to make reasonable adjustments under the disability legislation, the tribunal considers that the failures relied on by the claimant in relation to her direct discrimination claim, which are not deliberate omissions, do not, on the evidence, constitute acts of discrimination.  In the case of Owusu  v  London Fire and Civil Defence Authority [1995] IRLR 574 EAT the claimant alleged a failure by the respondent over a number of years to regrade him.  He also alleged a failure by the respondent to give him an opportunity to act-up when such opportunities arose.  He was alleging a continuing act in the form of maintaining a practice which resulted in inconsistent discriminatory decisions.  There is no evidence before the tribunal of the respondent making discriminatory decisions in the context of the direct discrimination claim.  

 (vii)  The tribunal is satisfied, even if the claimant is correct in her contention regarding non-deliberate omissions, that there was not a continuing act in the context of the direct discrimination claim between 27 March 2007 and 8 November 2007, and that it would not be just and equitable to extend time to allow a claim of direct sex discrimination in relation to the period from 1 November 2006 to 27 March 2007, in the absence of an explanation from the claimant as to why a claim was not presented to the tribunal earlier.  The tribunal does not consider it necessary to address the time issue in the direct discrimination claim further in light of the further analysis and conclusions which follow later in this decision.

(viii)  The tribunal is aware that allegations which are ruled out of time potentially emerge as evidential issues pursuant to the judgment of Mummery J in the EAT decision of Qureshi –v- Victoria University of Manchester [2001] ICR 863, which is cited with approval in Anya –v- University of Oxford and Another [2001] IRLR 377 CA.  In this context the claimant also relied on events subsequent to 20 March 2008, primarily as evidence of steps which could have been taken by the respondent at an earlier stage and were not taken.

THE REMAINING ISSUES

 6.	Having carefully analysed the evidence before it in relation to the remaining issues set out above, the tribunal, having also taken into account the chronology within the agreed facts, made the following findings of fact on the balance of probabilities:-

	(1)	The essence of the claimant’s case is articulated in correspondence from her solicitors dated 19 February 2008 to the Chief Constable raising a grievance on her behalf:-

			“Dear Sir

			Re: Diane Armstrong

			We have been consulted by Ms Diane Armstrong in relation to the non provision of satisfactory flak body armour by you her employer.  

			Our Client has been a serving officer since November 1995 and is currently stationed at Grosvenor Road Police Station.

			Our Client instructs us that in or around November 2006 the level of threat was heightened in North and West Belfast and an order went out for all officers to wear heavy ballistic, commonly referred to as male type flak jackets.  Whereas the men are fitted with personal issue flak jackets an ad hoc system of sharing a pool of spare flak jackets was in place for female officers.  Our Client commented that this system was unsatisfactory.  She noted that there were the obvious difficulties of hygiene associated with the sharing of these jackets.  In addition there was often no choice of flak jacket resulting in female officers having to wear ill fitting flak jackets.

			Our Client raised this issue of non personal issue of suitable body armour for women with her command but the threat disappeared and the issue was temporarily side lined.

			She states around the same time female officers were being provided with stab vests.  The stab vest itself was again of a lesser protection from a ballistic point of view.  Therefore her male counterparts had two levels of protection; they had a stab vest and a heavy ballistic flak jacket whereas she had only a stab vest.

			In or around November 2007 an email was issued advising our client and her colleagues that the level of threat was increased in North and West Belfast and ‘A’ District were ordered to wear heavy ballistic protection when on patrol.  Our Client sought clarification from Chief Inspector Andrea McMullen as to what this meant.  Ms McMullen advised our Client that the stab vest would have no ballistic protection and therefore in order to comply with the order the male type body armour should be worn.

			Accordingly the old unsatisfactory system was reverted to.  Whilst on patrol on Tuesday 21 November 2007 our Client had to wear a flak jacket that was too big for her as she had no option as there was only one flak jacket available.  After one hour on patrol she sustained an injury caused by the wearing of the flak jacket.  She reported this injury.

			We are instructed that currently the threat remains at the same level and the order remains in force.  There are still not enough flak jackets for all the female officers.  The situation remains where the spare ones are gathered up and put in a central point and shared amongst the female officers.  Our Client has raised the issue of the lack of suitable flak jackets with the Protective Measures Committee but nothing has been done.

			In essence her male colleagues have been provided with personal issue body armour whereas she must share body armour with other female colleagues.  Further female officers have been provided with flak jackets that do not provide the same ballistic protection as the men’s flak jackets.

			In light of the above we believe that Ms Armstrong has been discriminated against contrary to the Sex Discrimination (Northern Ireland) Order 1976.

			Please treat this letter as a formal grievance within the terms of the Employment (NI) Order 2003 (Dispute Resolution) Regulations (NI) 2004.

			I look forward to receiving your written response to our client’s grievance within 28 days from the date of this letter.

			Yours faithfully

			EDWARDS & COMPANY”

(2)	Ballistic body armour was first introduced in the 1970s by the Royal Ulster Constabulary.  In 1980 a different type of station issue overt body armour was introduced which consistent of Kevlar material and anatomically shaped ceramic ballistic plates.  Prior to this date the plates were not attached to the Kevlar and were heavy, resulting in many officers choosing not to attach them at all.  In 1982 there was a contract to refurbish the body armour systems.  In or about this time female officers complained that both the original and reversed station issue overt body armour was too heavy and could only be worn for short periods of time.  

	(3)	In 1994 the height restriction was removed in relation to officers joining the respondent’s service and female officers were armed for the first time.  The claimant joined the respondent in November 1995.  Two IRA ceasefires had been declared in 1994 and 1997 respectively.  After 2001 there was increased recruitment of officers which included a greater number of female officers.  In the period up to November 2006 there was a decreasing need for the use of heavy anti-ballistic PPE.  On 1 November 2006 a direction was issued by Assistant Chief Constable Toner in the North Belfast “A” District that officers must wear heavy anti-ballistic PPE as a republican dissident threat had emerged.  The direction was implemented on 25 January 2007.  The threat was scaled down on 27 March 2007 and thereafter it was no longer mandatory to wear the heavy anti-ballistic PPE.  Instead, wearing of such PPE became optional.  

	(4)	The claimant was a smaller framed officer.  When the threat arose in 2006/2007 she alleged that she had difficulties in wearing the existing heavy anti-ballistic body armour.  She raised the issue with Superintendent Grimshaw on 5 February 2007 and again in a Police Federation of Northern Ireland Central Committee Meeting on 26 February 2007.  There was also an exchange of e-mails between the claimant and the respondent on the issue.  The claimant requested personal issue body armour.  The tribunal accepts that she spoke to Chief Inspector Clark on 26 March 2007 and raised the issue of discrimination.  This is confirmed in a series of e-mails dated 27 March 2007.  The first of these, sent to all supervisors at 10.14 am by Michael Mannus, Staff Officer to the District Commander North Belfast DCU, states as follows:-

			“As a result of a recent intelligence assessment the Operations Manager directs that the wearing of body armour within North Belfast is no longer mandatory.  Please inform officers under your command as necessary.  Operational Officer’s in possession of Dual Purpose Body Armour (Stab resistant vests) should be reminded that they must wear same in compliance with current service policy.

			This direction will remain under review”.

		The second e-mail was sent at 11.30 am by the claimant to Stevie McCann and reads as follows:-

			“Stevie
	
			I spoke to Chief Insp Clark last night about the complacency that I noted when the sun came out over the weekend and our gays and girls werent wearing their Flak jackets I explained what we had spoken about at WHSS i.e. discrimination to female officers etc., lo and behold today the below direction.  

			For your information

			Diane Armstrong”.

		The reply which came back from Stevie McCann at 14.43 pm states as follows:-

			“Diane

			Amazing how the mind is focused when the word “discrimination” is used.

			Regards
	
			Stevie”.

	(5)	There was a further period of heightened threat in November 2007.  On 8 November 2007 a further direction was issued whereby officers were required to wear the heavy anti-ballistic PPE.  In the interim period, between 27 March 2007 and 8 November 2007, the claimant had continued periodically to make representations regarding the issue.  On 2 June 2007 Sergeant Montgomery provided her with heavy anti-ballistic PPE.  In an e-mail to Sergeant Montgomery on 4 June 2007 the claimant states as follows:-

			“I tried on the Flak Jacket which you left for me on Saturday 2/6/07.  The Flak Jacket is too big even though it is a SMALL size.  I am unable to comfortably access my Personal Issue Firearm.  

			Could you please order the next size down from me.

			Thank You”.

		A reply from Sergeant Armstrong on 6 June states:-

			“As far as I can ascertain there is no smaller size available”.

		On 9 November 2007 the Area Commander Tennent Street, Andrea McMullan replied to the claimant in response to further enquiries regarding the heavy anti-ballistic PPE as follows:-

			“Diane

			The stab vest has no ballistic capabilities.

			The lower grade body armour (historically known and worn by females) has only a very limited ballistic protection.

			The only ballistic body armour available to this organisation is that which you refer to as “ old male body armour” whilst historically this armour was only worn by males it is in fact a unisex armour and as such should be worn by all officers.

			I understand some officers male and female may not have their own personal issue of such armour and should any sets by required they can be obtained from Sgt John [….] Montgomery.

			I know that last time we had a ballistic threat there were a number of issues with this armour but the Protective Measures Committee/Uniform Committee which includes OHW and H&S representation agreed that our current unisex body armour is suitable for wear by all officers should the ballistic threat require it.

			I trust this addresses your query”.

	(6)	When the requirement to wear heavy anti-ballistic PPE was communicated to the claimant in January 2007, she was already on restricted duties and did not request such PPE until 16 March 2007.  She made a request to Sergeant Montgomery for armour on 21 March 2007 and was absent from work for a period of time afterwards.  When she again requested such PPE on 20 April 2007 from Sergeant Montgomery she indicated to him that she would be away on a course for four weeks.  There was also a special fitting service at the respondent’s facility at Seapark and on 7 June 2007 Inspector Hannigan referred her to Seapark.  Small size anti-ballistic PPE was supplied to the claimant by Sergeant Montgomery on 8 September 2007.  However, the claimant was not satisfied that it met her requirements.  The claimant sought further heavy anti-ballistic PPE on 13 November 2007 and was provided with a set on the same day.  On 22 November 2007 she was able to acquire a vest which suited her adequately.  (However, this vest had to be returned shortly afterwards).  The claimant raised the issue of discrimination again by e-mail to the respondent and Chief Inspector Cameron on 23 November 2007 and, having raised a grievance through her solicitors on 19 February 2008, presented her claim to the tribunal on 20 March 2008.   

	(7)	The claimant demonstrated various items of such PPE before the tribunal.  The tribunal is satisfied that, up until 29 September 2008, the claimant did not have suitable and adequately fitting heavy anti-ballistic PPE giving her unrestricted access to the equipment which she carried, (which included a weapon) and affording her the necessary protection against heavy ballistic attack by incorporating appropriately shaped and sized armour plating.  At times of increased threat, therefore, the claimant did not have proper heavy anti-ballistic PPE to withstand such a ballistic attack.  

	(8)	The tribunal also carefully considered the evidence provided by the respondent’s Chief Physiotherapist, Catherine Burke, and in particular the distinct female features including the fact that a female usually has a shorter torso length (neck to waist) than a male of the same height.  She also opined, given that heavy anti-ballistic PPE can cause problems for male officers, that it was likely that proportionately more female officers would be affected, as such PPE was less likely to fit them well.

	(9)	The tribunal carefully considered the tables provided by the claimant referring to a number of male officers stationed throughout Northern Ireland whom she claimed had been issued with personal anti-ballistic PPE whereas females on a separate list had not.  The tribunal, however, noted, that a small number of male officers referred to had not been issued with such PPE.  The tribunal is not satisfied that there is sufficient evidence to conclude that male officers received personal issue heavy anti-ballistic body armour whereas female officers, including the claimant, had to obtain such PPE from a pool within each station.  Superintendent Gary White from “A” District, North Belfast, had had such PPE issued to him but had to ultimately hand it back.  The meaning attached to ‘personal issue’ by the claimant was further refined on page 2 of her counsel’s written submissions as “being issued with a set of armour upon commencement of duty in a particular station and retaining that set of armour for their personal (not shared) use until they left that station”.  In this sense there is some substance to her claim but this must be weighed against the fact that because she was a smaller framed officer, extra small heavy anti-ballistic PPE of the nature requested by her was simply not available at the time.

	(10)	The tribunal was also referred by the claimant to extracts from the respondent’s Employee Handbook which, under the sub title of “Personal Protective Equipment”, refers to “the need to ensure a good fit”.  In another extract from the employee handbook entitled “PERSONAL PROTECTIVE EQUIPMENT AND CLOTHING (PPE)” it is stated as follows:-

			“In some circumstances, for specific operations, supervisors may have determined a need for additional PPE for example public order clothing and shields etc.  It is essential that where the PSNI provides appropriate PPE the employee wears the PPE, to enable them to safely undertake their duties.  Make sure that your protective clothing and equipment fit properly.  If not or if they become lost or damaged, see your manager to obtain replacements.  When not in use make sure your equipment and clothing is safely stored where it will not get damaged.

			When you have been issued with personal protective clothing or equipment you will also be given direction as to how to don and doff it, store, clean, maintain and dispose of it.

			If you are in any doubt about when and how to use protective clothing or protective equipment raise this immediately with your Line Manager.”

(11)	The tribunal has no doubt that the removal of the height restriction combined with increased recruitment of officers in 2001 (including more female officers), meant that requests for smaller sized overt body armour generally became more frequent.  At the time of the first threat in 2006 Assistant Chief Constable Toner issued a directive stating that both male and female officers must wear station issue overt body armour fixed with ballistic plates.  This brought the problem with officers, such as the claimant, into the open, and meant that the issue of appropriate female overt body armour had to be reviewed.  This in turn led to an assessment of overt body armour held within various district command units.  A report was then forwarded to the Uniform and Protective Measures Committee (“UPMC”) which decided, subject to obtaining further information, that a business case should be prepared for the replacement of the overt body armour.  In May 2007 a request was issued to District Commanders to quantify their need for such body armour.  A second request had to be made in August 2007, given the poor response.  A third request followed in December 2007.  A business case was eventually prepared at the beginning of 2008 leading to a tender and the eventual production of extra small overt body armour.  The tribunal does accept that the respondent did have a difficulty in relation to the size of the anatomical plates to be fitted within the extra small overt body amour.  The respondent was obviously, and to an extent understandably, in a state of unpreparedness when the heightened threats from republican dissidents came in November 2006 and November 2007.  The following e-mail from John Montgomery, Station Sergeant “A” District dated 22 November 2007 to Michael Murray and copied to the claimant illustrates the point:-

			“Michael;

			I’m told you are best placed to advise/procure this kit.  I urgently require 20 x small sets of ballistic body armour ( the heavy type !).  I have been dealing with Sgt John Ferguson at Weapon Control.  He is currently availing of sick leave.  I am aware that some 700 units are away for refurbishment.  Is it possible to approach the provider and order these units.  Given the current threat assessment pertaining to the Greater Belfast area and beyond I would appreciate this matter receiving urgent action.”

		In his reply of 26 November 2007, Mr Murray states as follows:-

			“John
			Sorry for taking so long to come back to you, but I am now aware that the head of Procurement and Logistic Services ( Mr Campbell Browne ) is now dealing with a request from Chief Superintendent White regarding the purchase of overt body armour.”

	(12)	The tribunal was referred to and considered a large number of e-mails exchanged by or on behalf of the claimant with various levels of officers within the respondent’s organisation.  The Police Federation for Northern Ireland also made representations on her behalf and Chief Superintendent White of “A” District (infra) had considerable liaison with its representatives in 2007.  However, it was not until 22 January 2008 that the business case was prepared by Michael Murray to address the issues which had arisen following the increased threat in November 2007.  In paragraph 21 of the business case it is recorded as follows:-

			“REPLACEMENT OF STATION ISSUE OVERT BODY ARMOUR – PRIORITY

			Urgent action required to ensure orders are placed before the end of September 2008 and delivery, payment and issue of kit before end of financial year.  Lynette McHendry to issue addendum to tender to state that failure to deliver in time will result in cancellation of order.  

			Five tenders returned.  Paul Crothers, WERC, preparing Technical Evaluation report.  Practical evaluation arranged.  Evaluation of tender documents due 5 September 2008.”

		The minutes of a much earlier meeting of the UPMC dated 4 April 2007 attended by Chief Superintendent Cameron, Mr Davy Orr, Mr Michael Murray, A/Inspector Alan Jones, Inspector Davidson, Mr Campbell Browne, Inspector Paul Hannigan, Inspector Jim McCrudden, Superintendent Guy Thompson, and Mr Tom Cartlidge include the following extract:-

			“Mr Murray informed the committee that he is preparing a paper in relation to the review of the old ballistic body armour most of which is no longer fit for purpose as they are 15 years out of date and haven’t been refurbished.  Mr Murray asked for suggestions as to how they take this issue forward in order to have overt armour for use at station level and to facilitate the smaller framed officer.  Procurement and Logistics Services have decided to refurbish 500 hundred body armours particularly to facilitate the smaller frame in the interim.”

	(13)	There was also a fast track procurement system available in limited circumstances.  Chief Superintendent White was prepared to find £16,000 from his budget to purchase 40 items of small armour for both male and female officers in November 2007.  He was based at Antrim Road as Chief Superintendent of “A” District in which the claimant served as a female officer.  His evidence, which the tribunal accepts, was that predominately but not exclusively a number of female officers were having difficulty in accessing appropriate anti-ballistic PPE.    However, his endeavour to purchase the items of small armour was superseded by Mr Browne adopting a procurement process on an organisation wide basis.  In an e-mail for Fraser O’Brien dated 23 November 2007 Chief Superintendent White states, inter alia, that:-

			“I would have thought that the particular circumstances would allow some latitude with regard to purchasing regulations”.

		The tribunal found Chief Superintendent White to be an impressive and honest witness.  It accepts his evidence that the PPE issue was as much a size as a gender issue.  There had also been what he described as a “legacy” issue.  Many items of anti-ballistic PPE worn by larger framed officers in the past were too large for many smaller framed officers when the renewed threats arose in November 2006 and November 2007.  The tribunal is not persuaded by the respondent’s evidence that some type of fast track procedure would not have been viable to alleviate some of the immediate concerns, given the fact that officers such as the claimant were being exposed to potential ballistic threats at a time when they were not provided with the proper PPE to withstand such threats.  Moreover, Chief Superintendent White was prepared to do something about it immediately.  The tribunal is therefore satisfied that greater expedition could have been shown by the respondent in dealing with a concern of such fundamental importance.  The fact that three attempts were made to obtain feedback from District Commanders before a business case could be prepared, is an insufficient reason for not expediting matters in respect of smaller framed officers both male and female.  

	(14)	The claimant’s representative referred the tribunal to a list of names of male officers as comparators in the context of the indirect discrimination claim.  A male officer, Sergeant Christopher Robinson, was relied on as a comparator in the direct discrimination claim, for the period from 8 November 2007 until 20 March 2008.  The claimant did not rely on a hypothetical comparator and in relation to the earlier part of the claim relating to the threat in November 2006 and onwards, the claimant was not in a position to name any such single comparator in relation to direct discrimination.  The claimant’s case was that Sergeant Robinson was an appropriate comparator in the direct discrimination claim as, during his time on patrol with the claimant following the dissident threat in November 2007, he had been afforded personal issue heavy anti-ballistic PPE which was suitable and fitted him.  The tribunal is satisfied that, unlike the claimant, Sergeant Robinson did not experience problems with his heavy anti-ballistic PPE and had not raised any complaints.  The tribunal also considered a list of comparators provided by the claimant in relation to the direct discrimination claim for 2006/07 period and the indirect discrimination complaints.  These comparators were not specific to “A” District and indeed covered locations throughout Northern Ireland.  The claimant had also furnished questionnaires to certain female officers and these together with the replies were considered by the tribunal.  

THE LAW

 7.	Article 3 of the Sex Discrimination (Northern Ireland) Order 1976 (“the Order”) provides as follows:-

	“(2)	In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if-

	(a)
	on the ground of her sex, he treats her less favourably than he treats or would treat a man, or

	(b)
	he applies to her a provision criterion or practice which he applies or would apply equally to a man, but-

	(i)
	which puts or would put women at a particular disadvantage when compared with men, 

	(ii)
	which puts her at that disadvantage, and 

	(iii)
	which he cannot show to be a proportionate means of achieving a legitimate aim”.

	Article 8 of the Order provides as follows:-

	8.―(1)  It is unlawful for a person, in relation to employment by him at an establishment in Northern Ireland, to discriminate against a woman―

	(a)
	in the arrangements he makes for the purposes of determining who should be offered that employment, or 

	(b)
	in the terms on which he offers her that employment, or 

	(c)
	by refusing or deliberately omitting to offer her that employment.

	(2)  It is unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland, to discriminate against her―

	(a)
	in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

	(b)
	by dismissing her, or subjecting her to any other detriment.

The claimant’s case was that the detriment to the claimant was the failure by the respondent to issue her on a personal basis with the requisite heavy anti-ballistic PPE and, by extension, the fact that she had to take “pot luck” to her disadvantage meant that she was required to wear heavy anti-ballistic PPE which was ill fitting thereby causing her both risk of injury and actual injury, all of which was to her detriment.

In relation to indirect discrimination the claimant’s case regarding particular disadvantage is articulated in summary form at paragraph 44 of her counsel’s written submissions, attached to this decision.  It was also her case that the provision criterion or practice relied on was the requirement to wear heavy body armour during those periods when the threats were at their height.

BURDEN OF PROOF REGULATIONS

 8.	Article 63 A of the Order states:-

“(2)	Where, on the hearing of the complaint, the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that respondent – 

(a)	has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of Part III or 

	(b)	is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination or harassment against the complainant, the Tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, he is not to be treated as having committed that act”.

	(i)	In Igen Ltd (formerly Leeds Carers Guidance) and Others –v- Wong, Chamberlains 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.  This guidance is now set out at Annex to the judgment in the Igen case.  The guidance is not reproduced but has been taken fully into account.  

	(ii)	The tribunal also considered the following authorities, McDonagh and Others –v- Hamilton Thom Trading As  The Royal Hotel, Dungannon (2007) NICA, Madarassy -v- Nomur International Plc (2007) IRLR 246 (“Madarassy”), Laing –v- Manchester City Council (2006) IRLR 748 and Mohmed –v- West Coast trains Ltd (2006) UK EAT 0682053008.  It is clear from these authorities that in deciding whether a claimant has proved facts from which the tribunal could conclude in the absence of an adequate explanation that discrimination had occurred, the tribunal must consider evidence adduced by both the claimant and the respondent, putting to the one side the employer’s explanation for the treatment.  As Lord Justice Mummery stated in Madarassy at paragraphs 56 and 57:-

“The Court in Igen –v- Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the Tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination.  The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination.  They are not, without more, sufficient material from which a Tribunal “could conclude” that on the balance of probabilities the respondent had committed an unlawful act of discrimination.

		“Could conclude” in S63A(2) must mean that “a reasonable Tribunal could properly conclude” from all the evidence before it.  This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment.  It would also include evidence adduced by the respondent contesting the complaint.  Subject only to the statutory “absence of inadequate explanation” at this stage……., the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complaint were of like with like as required by S5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment”.

	(iii)	The tribunal received valuable assistance from Mr Justice Elias’ judgement in the case of London Borough of Islington  v  Ladele & Liberty (EAT) [2009] IRLR 154, at paragraphs 40 and 41, which read as follows:-

	“Whilst the basic principles are not difficult to state, there has been extensive case law seeking to assist tribunals in determining whether direct discrimination has occurred.  The following propositions with respect to the concept of direct discrimination, potentially relevant to this case, seem to us to be justified by the authorities:

		(1)  In every case the tribunal has to determine the reason why the claimant was treated as he was.  As Lord Nicholls put it in Nagarajan  v  London Regional Transport [1999] IRLR 572, 575 – ‘this is the crucial question’.  He also observed that in most cases this will call for some consideration of the mental processes (conscious or sub-conscious) of the alleged discriminator.

		(2)  If the tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination.  It need not be the only or even the main reason.  It is sufficient that it is significant in the sense of being more than trivial: see the observations of Lord Nicholls in Nagarajan (p.576) as explained by Peter Gibson LJ in Igen  v  Wong [2005] IRLR 258, paragraph 37.

			(3)  As the courts have regularly recognised, direct evidence of discrimination is rare and tribunals frequently have to infer discrimination from all the material facts.  The courts have adopted the two-stage test which reflects the requirements of the Burden of Proof Directive (97/80/EEC).  These are set out in Igen  v  Wong.  That case sets out guidelines in considerable detail, touching on numerous peripheral issues.  Whilst accurate, the formulation there adopted perhaps suggests that the exercise is more complex than it really is.  The essential guidelines can be simply stated and in truth do no more than reflect the common sense way in which courts would naturally approach an issue of proof of this nature.  The first stage places a burden on the claimant to establish a prima facie case of discrimination:

		‘Where the applicant has proved facts from which inferences could be drawn that the employer has treated the applicant less favourably [on the prohibited ground], then the burden of proof moves to the employer.’

		If the claimant proves such facts then the second stage is engaged.  At that stage the burned shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground.  If he fails to establish that, the tribunal must find that there is discrimination.  (The English law in existence prior to the Burden of Proof Directive reflected these principles save that it laid down that where the prima facie case of discrimination was established it was open to a tribunal to infer that there was discrimination if the employer did not provide a satisfactory non-discriminatory explanation, whereas the Directive requires that such an inference must be made in those circumstances: see the judgment of Neill LJ in the Court of Appeal in King  v  The Great Britain-China Centre [1991] IRLR 513.)

			(4)  The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employee has treated the claimant unreasonably.  That is a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee.  So the mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one.  As Lord Browne-Wilkinson pointed out in Zafar  v  Glasgow City Council [1997] IRLR 229:
	
			‘it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee that he would have acted reasonably if he had been dealing with another in the same circumstances.’

		Of course, in the circumstances of a particular case unreasonable treatment may be evidence of discrimination such as to engage stage two and call for an explanation: see the judgment of Peter Gibson LJ in Bahl  v  Law Society [2004] IRLR 799, paragraphs 100, 101 and if the employer fails to provide a non-discrimination explanation for the unreasonable treatment, then the inference of discrimination must be drawn.  As Peter Gibson LJ pointed out, the inference is then drawn not from the unreasonable treatment itself – or at least not simply from that fact – but from the failure to provide a non-discriminatory explanation for it.  But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, that discharges the burden at the second stage, however unreasonable the treatment.

			(5)  It is not necessary in every case for a tribunal to go through the two-stage procedure.  In some cases it may be appropriate for the tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test:  see the decision of the Court of Appeal in Brown  v  Croydon LBC [2007] IRLR 259 paragraphs 28-39.  The employee is not prejudiced by that approach because in effect the tribunal is acting on the assumption that even if the first hurdle has been crossed by the employee, the case fails because the employer has provided a convincing non-discriminatory explanation for the less favourable treatment.

			(6)  It is incumbent on a tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these relevant factors are: see the observations of Sedley LJ in Anya  v  University of Oxford [2001] IRLR 377 esp paragraph 10.

			(7) As we have said, it is implicit in the concept of discrimination that the claimant is treated differently than the statutory comparator is or would be treated.  The proper approach to the evidence of how comparators may be used was succinctly summarised by Lord Hoffmann in Watt (formerly Carter)  v  Ahsan [2008] IRLR 243, a case of direct race discrimination by the Labour Party.  Lord Hoffmann summarised the position as follows (paragraphs 36-37):

			’36.  The discrimination … is defined … as treating someone on racial grounds “less favourably than he treats or would treat other persons”.  The meaning of these apparently simple words was considered by the House in Shamoon  v  Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285.  Nothing has been said in this appeal to cast any doubt upon the principles there stated by the House, but the case produced five lengthy speeches and it may be useful to summarise:

			(1)  The test for discrimination involves a comparison between the treatment of the complainant and another person (the “statutory comparator”) actual or hypothetical, who is not of the same sex or racial group, as the case may be.  

			(2)  The comparison requires that whether the statutory comparator is actual or hypothetical, the relevant circumstances in either case should be (or be assumed to be), the same as, or not materially different from, those of the complainant …

			(3)  The treatment of a person who does not qualify as a statutory comparator (because the circumstances are in some material respect different) may nevertheless be evidence from which a tribunal may infer how a hypothetical statutory comparator would have been treated: see Lord Scott of Foscote in Shamoon at paragraph 109 and Lord Rodger of Earlsferry at paragraph 143.  This is an ordinary question of relevance, which depends upon the degree of the similarity of the circumstances of the person in question (the “evidential comparator”) to those of the complainant and all the other evidence in the case.

		37.  It is probably uncommon to find a real person who qualifies … as a statutory comparator.  Lord Rodger’s example at paragraph 139 of Shamoon of the two employees with similar disciplinary records who are found drinking together in working time has a factual simplicity which may be rare in ordinary life.  At any rate, the question of whether the differences between the circumstances of the complainant and those of the putative statutory comparator are “materially different” is often likely to be disputed.  In most cases, however, it will be unnecessary for the tribunal to resolve this dispute because it should be able, by treating the putative comparator as an evidential comparator, and having due regard to the alleged differences in circumstances and other evidence, to form a view on how the employer would have treated a hypothetical person who was a true statutory comparator.  If the tribunal is able to conclude that the respondent would have treated such a person more favourably on racial grounds, it would be well advised to avoid deciding whether any actual person was a statutory comparator.’

	The logic of Lord Hoffmann’s analysis is that if the tribunal is able to conclude that the respondent would not have treated the comparator more favourably, then again it is unnecessary to determine what are the characteristics of the statutory comparator.  This chimes with Lord Nicholls’ observations in Shamoon to the effect that the question whether the claimant has received less favourable treatment is often inextricably linked with the question why the claimant was treated as he was.  Accordingly:

	‘employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was’ (paragraph 10).
	
	This approach is also consistent with the proposition in point (5) above.  The construction of the statutory comparator has to be identified at the first stage of the Igen principles.  But it may not be necessary to engage with the first stage at all’”.

	(iv)	The tribunal also received considerable assistance from the judgment of Lord Justice Girvan in the Northern Ireland Court of Appeal decision in Stephen William Nelson  v  Newry and Mourne District Council [2009] NICA 24.  Referring to the Madarassy decision (supra) he states at paragraph 24 of his judgment:-

		“This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination.  The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude in the absence of adequate explanation that the respondent has committed an act of discrimination. In Curley v Chief Constable [2009] NICA 8 Coghlin LJ emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination”.

		Again, at paragraph 28 he states in the context of the facts of that particular case, as follows:-

		“The question in the present case however is not one to be determined by reference to the principles of Wednesbury unreasonabless but by reference to the question of whether one could properly infer that the Council was motivated by a sexually discriminatory intention.  Even if an employer could rationally reach the decision which it did in this case, it would nevertheless be liable for unlawful sex discrimination if it was truly motivated by a discriminatory intention.  However, having regard to the Council’s margin of appreciation of the circumstances the fact that the decision-making could not be found to be irrational or perverse must be very relevant in deciding whether there was evidence from which it could properly be inferred that the decision making in this instance was motivated by an improper sexually discriminatory intent.  The differences between the cases of Mr Nelson and Ms O’Donnell were such that the employer Council could rationally and sensibly have concluded that they were not in a comparable position demanding equality of disciplinary measures.  That is a strong factor tending to point away from a sexually discriminatory intent.  Once one recognises that there were sufficient differences between the two cases that could sensibly lead to a difference of treatment it is not possible to conclude in the absence of other evidence pointing to gender based decision-making that an inference or presumption of sexual discrimination should be drawn because of the disparate treatment of Ms O’Donnell and Mr Nelson”.  

	(v)	In relation to the comparator issue, the tribunal took into account the decision in Macdonald (Appellant)  v  Advocate General for Scotland (Respondent) Pearce (Appellant)  v Governing Body of Mayfield Secondary School (Respondent) [2003] IRLR 512 HL, which held that the “relevant circumstances” for the purpose of the comparison are those which the alleged discriminator takes into account when deciding to treat the woman or the man as he does.  If the relevant circumstances are to be “the same or not materially different”, within the meaning of S5(3), all the characteristics of the complainant which are relevant to the way his case was dealt with must be found also in the comparator.   They do not have to be precisely the same, but they must not be materially different.  That is the basic rule, if one is to compare like with like.  Characteristics that have no bearing on the way the woman was treated can be ignored, but those that do have a bearing on the way she was treated must be the same if one is to determine whether, but for her sex, she would have been treated differently.

	(vi)	In relation to the burden of proof in indirect discrimination cases, useful guidance is to be obtained from the case of Nelson -v- Carillion Services Ltd (2003) IRLR 428 CA, where Simon Brown LJ reviewed the state of the law in light of the changes made by the 2001 Regulations and concluded:

		“It seems to me tolerably clear that the effect of S.63A was to codify rather than alter the pre-existing position established by the case law.  The burden of proving indirect discrimination under the 1975 Act was … always on the complainant, and there pursuant to S.63A it remains, the complainant still having to prove facts from which the Tribunal could conclude that he or she has been unlawfully discriminated against “in the absence of an adequate explanation from the employer”.  Unless and until the complainant establishes that the condition in question has had a disproportionate adverse impact upon his/her sex the Tribunal could not in my judgement, even without explanation from the employer, conclude that he or she has been unlawfully discriminated against”.

		However, there is little guidance from the authorities as to how precisely the burden of proof operates in indirect discrimination cases.  

	(vii)	Harvey on Industrial Relations and Employment Law (“Harvey”) comments in Volume 2 at L [193] as follows (in relation to the Nelson-v-Carillon Services Ltd case (Supra)):-

		“That view of the limited impact to be accorded to S3A in relation to indirect discrimination contrasts with the much wider scope which the provision has been seen to have when it comes to the drawing of inferences of direct discrimination … Whatever the precise scope of S63A, claimants remain under an obligation to bring to the tribunal some evidence in support of allegations of disproportionate impact, and this will usually involve both the use of statistics and the concept of a “pool” of affected individuals, real or hypothetical, to test the consequences of the provision, criterion or practice which is being subjected to scrutiny”.  

	(viii)	The tribunal considered the implications arising from the case of Rutherford & Another –v- Secretary of State for Trade and Industry (No. 2) (2006) UKHL19, [2006] IRLR 551 and in particular the judgement of Baroness Hale at paragraph 72 where she states:-

		“It is of the nature of such apparently neutral criteria or rules that they apply to everyone, both the advantaged and the disadvantaged groups.  So it is no answer to say that the rule applies equally to men and women, or to each racial or ethnic or national group, as the case may be.  The question is whether it puts one group at a comparative disadvantage to the other.  However, the fact that more women than men, or more whites than blacks, are affected by it is not enough.  Suppose, for example, a rule requiring that trainee hairdressers be at least 25 years old.  The fact that more women than men want to be hairdressers would not make such a rule discriminatory.  It would have to be shown that the impact of such a rule worked to the comparative disadvantage of would-be female or male hairdressers as the case might be”.

	(ix)	The tribunal carefully considered the relevant section in Harvey on indirect discrimination at L [171] ff.  It also took into account Lord Justice Sedley’s judgement in the case of Grundy -v- British Airways Plc [2007] EWCA Civ 1020, [2008] IRLR 74, where, in relation to establishing a pool, he states at paragraph 27:-

			“The correct principle, in my judgement, is that the pool must be one which suitably tests the particular discrimination complained of: but this is not the same thing as the proposition that there is a single suitable pool for every case.  In fact, one of the striking things about both the race and sex discrimination legislation is that, contrary to early expectations, three decades of litigation have failed to produce any universal formula for locating the correct pool, driving tribunals and courts alike to the conclusion that there is none”.

		He continues in paragraphs 30 and 31 to state:-

			“The dilemma for fact-finding tribunals is that they can neither select a pool to give a desired result, nor be bound always to take the widest or narrowest available pool, yet have no principle which tells them what is a legally correct or defensible pool … Rutherford (No.2) seems to me to be a striking illustration of Lord Nicholls’ proposition that the assessment of disparate impact is a question of fact, limited like all questions of fact by the dictates of logic.  In discrimination claims the key determinant of both elements is the issue which the claimant has elected to pose and which the tribunal is therefore required to evaluate by finding a pool in which the specificity of the allegation can be realistically tested.  Provided it tests the allegation in a suitable pool, the tribunal cannot be said to have erred in law even if a different pool, with a different outcome, could equally legitimately have been chosen.  We do not accept that Rutherford is authority for the routine selection of the widest possible pool; nor therefore that any question arises of “looking at” a smaller pool for some unspecified purpose short of determining the case”.

		Harvey states at L paragraphs 194 and 195 as follows:-

			“If, for example, measures are taken which are intrinsically liable to affect women more than men, then that may be enough to put an employer to the task of showing justification., without the need for statistical proof that in practice a substantially higher proportion of women than men are affected.  Support for this more flexible approach is to be found in the views expressed by the CA in London Underground  v  Edwards (No 2) [1999] IRLR 364, [1999] ICR 494, where it was acknowledged that tribunals do not sit in blinkers―so that they are entitled to make use of their knowledge and expertise in the industrial field generally.  … …

			[195]

			There is some support in decided cases for the proposition that indirect discrimination can be shown without a statistical analysis being necessary.  In Chief Constable of Avon and Somerset Constabulary  v  Chew [2001] All ER (D) 10 (Sep), EAT, Charles J made the following points: (1) the ECJ’s (and HL’s) decision in Seymour-Smith does not mean that prima facie discrimination can only be established by reference to statistics relating to the relevant measure or provision.  (para 36(4)); (2) where there are no statistics showing the operation of a condition or requirement ‘an employer could not be heard to say that no claim for indirect sex discrimination could succeed until the requirement or condition had been in force long enough to produce information on which statistics could be based.  In those circumstances the courts would consider different methods of assessing whether the first stage [ie of prima facie indirect discrimination] was satisfied.’ (para 36(11).) The use of non-statistical means to show indirect discrimination is also canvassed in O’Flynn  v  Adjudication Officer: C-237/94 [1996] 3 CMLR 103, ECJ paras 20-21.  There the ECJ was concerned with a rule which made the grant of a payment to cover funeral expenses incurred by a migrant worker subject to the condition that burial or cremation took place within the territory of the member state giving the grant.  That was found to be indirectly discriminatory (unless justified).  The Advocate General thought the ‘decisive question’ was ‘whether it is more probable for nationals of other member states than for nationals of the United Kingdom that they or their relatives will be buried in another member state.’  The ECJ put the test in terms of provisions that were ‘intrinsically liable to affect migrant workers more than national workers’ (para 20).”

	(x)	In relation to the aspect of justification, the tribunal considered the paragraphs in Harvey at L [207] to [214] and the relevant cases referred to therein beginning with the decision of the European Court of Justice in Bilka-Kaufhaus GmbH -v- Weber Von Hartz 170/84 [1986] IRLR 317.  In relation to the issue of proportionality it considered the case of Hardys and Hansons Plc -v- Lax [2005] EWCA Civ 846, (2005) IRLR 726, CA.  As Harvey comments at L 213:-

			“The Court held that there was no scope, in discrimination law, for a test based on “the band of reasonable responses which a reasonable employer would adopt” – ie the test for culpable unfairness in the law of unfair dismissal.  The test, emphasised the CA, is what is objectively justified.  The principle of proportionality requires the tribunal to take account of the reasonable needs of the business, but at the end of the day it was for the tribunal to make its own judgement as to whether the rule imposed was “reasonably necessary”.  It is not enough that the view is one which a reasonable employer could take”.  Harvey then continues to comment that “while this decision was given on the basis of the “old” (ie pre October 2005) definition of indirect discrimination, the reference to the principle of proportionality fits very well with the “new” test of justification “a proportionate means of achieving a legitimate aim”.  Unless and until superior courts indicate the contrary, it is thought it thus offers a reliable guide to how the new wording should be read”.

	(xi)	The tribunal also reminded itself of the need in an indirect discrimination case for the claimant to identify precisely what the alleged provision criterion and practice (“PCP”) is and when it applied to the claimant.  The claimant has to show that the PCP applied to others in the same group at the same time and that they also were put to a disadvantage.  An assumption is therefore made that the PCP applies to all but adversely affects a particular group.  Ascertaining when the PCP applies affects:-

		(a)	the group allegedly suffering the disadvantage as circumstances may fluctuate and therefore timing is crucial.

(b)	Whether the claimant actually suffered a disadvantage.

(c)	The time limits and in particular if it is alleged that there was a continuous act, when that act was done.  

In both direct and indirect discrimination cases a comparison of the cases of persons of different sex must be such that the relevant circumstances in one case are the same, or not materially different in the other (Article 7 of the Order).  Moreover, Elias J made clear in the case of Ladele (supra) that any defence raised by a respondent to show that the PCP is a proportionate means of achieving a legitimate end must be subjected to “careful and sophisticated analysis”.

SUBMISSIONS

 9.	The tribunal carefully considered the helpful written submissions submitted by both parties.  Oral submissions were heard on 27 May 2009.  The tribunal subsequently considered that the case of Matuszowicz  v  Kingston Upon Hull City Council [2209] EWCA Civ 22 (in relation to the issue of deliberate and non-deliberate omissions) may have a material bearing on the case and therefore brought it to the attention of the parties’ representatives.  The tribunal received further written submissions on this case and heard oral submissions on 12 June 2009.  All written submissions are appended to this decision.  The parties’ representatives also acknowledged that the tribunal could not have arrived at a decision until it heard further submissions on 12 June 2009.

CONCLUSIONS

10.	The tribunal, having carefully considered the evidence together with the submissions from both parties and having applied the principles of law to the facts as found concludes as follows:-

	(1)	As part of its consideration of the burden of proof at stage one in relation to the claimant’s direct discrimination claim, the tribunal is entitled to consider, inter alia, whether an act of discrimination occurred at all.  The tribunal is not satisfied, following its earlier analysis of the out of time issue, and on the evidence before it, that the alleged failures in the form of a series of omissions preceding 20 March 2008, (and which are not capable of being categorised as deliberate) can amount to an act or acts of unlawful direct sex discrimination.  Even if the tribunal is wrong in so concluding, and follows the claimant’s contention that the alleged omissions constituted a continuing act from November 2006 to March 2008, it is satisfied, taking into account the whole context of the surrounding evidence, that the reason for the alleged failures was due to a number of historical factors, combined with an elongated procurement process, and a series of attempts to properly fit the claimant with appropriate heavy anti-ballistic PPE prior to 29 September 2008 – none of which took place on the ground of her sex.  The plain fact was that the claimant, together with a number of smaller framed officers, including some males, did not have the right type of armour provided to them.   It was not in existence at the material time and had to be specially ordered and, as in the claimant’s case, fitted where necessary.  Furthermore, should the issue of comparators have to be considered in light of the foregoing conclusions, the tribunal is satisfied on the evidence and the findings of fact, that the circumstances pertaining to Sergeant Robinson were not the same and were materially different to those of the claimant.  Even if the tribunal had to consider the earlier period (November 2006 – 27 March 2007) as part of the claim of direct discrimination, there is insufficient evidence to identify any appropriate comparator or comparators.  A case for a hypothetical comparator was not put forward on behalf of the claimant.

		The tribunal is not satisfied, therefore, that the claimant has proved facts from which conclusions could be drawn that she was treated less favourably on the ground of sex, and her claim of direct sex discrimination is therefore dismissed.

	(2)	The tribunal has also carefully considered the indirect discrimination claim for the period 8 November 2007 to 20 March 2008, having also taken into account the decision in Anya (supra).  The tribunal accepts that the claimant has specified a provision criterion or practice in terms of the requirement to wear heavy anti-ballistic PPE at times of heightened threat.  However, the tribunal does not find it possible on the evidence to establish a relevant pool in which the specificity of the allegations of indirect discrimination could be realistically tested.  Furthermore, it finds itself unable to accede to the “intrinsic” argument referred to at paragraph 8 (ix) above, on the evidence before it.  It follows therefore, that the claimant cannot satisfy the tribunal irrespective of the issue of comparators, that the provision criterion or practice puts or would put women police officers at a particular disadvantage when compared with male police officers, and which put her at that disadvantage.  The onus does not therefore shift to the respondent to show that the provision criterion or practice was a proportionate means of achieving a legitimate aim.  The claim of indirect sex discrimination is therefore also dismissed.

Chairman:

Date and place of hearing: 26- 30 January 2009; 9- 12 February 2009; 12-13 May 2009; 
                                              27 May 2009; 12 June 2009, Belfast

Date decision recorded in register and issued to parties: