FAIR EMPLOYMENT TRIBUNAL

CASE REFS:   73/06 FET
694/06

CLAIMANT:		Mary Patricia (Maire) Dunwoody

RESPONDENTS:		1.	Chief Constable of the Police Service of
			Northern Ireland
2.	J Stewart
3.	David Strudley

DECISION

The unanimous decision of the Tribunal is that the claimant was not discriminated against by the respondent on the basis of her sex, race, political opinion or religious belief, nor was she victimised for having performed a protected act.

Constitution of Tribunal:
Chairman:		Mr Kinney
Members:		Mrs Adams
			Mr Ebrahim

Appearances:
The claimant appeared in person and represented herself.
The respondent was represented by Ms N Murnaghan, Barrister-at-Law, instructed by The Crown Solicitor’s Office.

The issues

1.	The legal issues to be considered were agreed between the parties and identified as:-

(i)	Was the claimant discriminated against on the grounds of her sex contrary to European Law and/or contrary to the Sex Discrimination (Northern Ireland) Order 1976 as amended.

(ii)	Was the claimant discriminated against on the grounds of her perceived religious beliefs and/or political opinions contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998.

(iii)	Was the claimant discriminated against on the grounds of her race contrary to the Race Relations (Northern Ireland) Order 1997.

(iv)	Was the claimant victimised on the grounds of her having performed a protected act, namely the bringing of proceedings registered as 425/03 FET  and 9377/03.

2.	Sources of evidence

The Tribunal heard evidence from the claimant, from Superintendent Gracey and from Carol Mounce and had tendered to it by way of evidence as agreed by the claimant and respondent the statements of David Edwin Stephenson, Joe Stewart and David Strudley.  The Tribunal also had available to it the documents referred to it by the parties from the trial bundle.

3.	Facts found

(3.1)	On 15 February 2006 the claimant received a phone call from Mr Chris Simmons who informed the claimant that he was working in the Centre for Leadership at the Police College.

(3.2)	Mr Simmons asked the claimant if she would be interested in working       part-time at the college for a period of some four months.  The claimant confirmed she was and Mr Simmons invited the claimant to an informal interview the next day.

(3.3)	The claimant attended the Police College the next day and met Mr Simmons.  He told the claimant that the job involved supporting and advising first-time managers who had recently been promoted and because of the claimant’s qualifications as well as her experience of assessing and managing first-time officers, she was an ideal candidate for the job.

(3.4)	There were further discussions about the nature of the role envisaged for the claimant including the potential hours to be worked being three to four days a week for a period of three to four months.  No express remuneration was agreed but Mr Simmons indicated to the claimant that the remuneration would be at a rate similar to that of Staff Officer grade.  

(3.5)	Mr Simmons was not entirely clear in all the necessary details required for the employment of the claimant.  He indicated to the claimant in that conversation that she may have to register with Grafton Recruitment.  The claimant indicated to Mr Simmons that she would be willing to do so.

(3.6)	The following day the claimant was contacted by Carol Mounce who is a Staff Officer and Deputy Head of Business Services at the Police College and responsible for budget and personnel issues.  Mrs Mounce told the claimant that unfortunately there was no money in the budget for the job that had been discussed with Mr Simmons and that no one could be employed in that role.  The claimant accepted that there was no budget available at that time but confirmed to Mrs Mounce that she would still be interested in the job.  It was Mrs Mounce who had initially recommended the claimant to Mr Simmons for the post.

(3.7)	On 9 March 2006 the claimant spoke again to Mr Simmons and told him she was still interested in the post.  Shortly after this the claimant discovered that two other persons had been offered the post which had previously been offered to the claimant and they had been recruited.  

(3.8)	The claimant was subsequently employed by the Police College from November 2006 to January 2007 under the Police Rehabilitation and        Retraining Trust (PRRT).

(3.9)	The claimant is not from Northern Ireland but is from Southern Ireland.  She stated that it was her belief that the two successful applicants were from Northern Ireland and would consider themselves British.  She believed that they would have a different political opinion to hers and she believed their political opinion to be Unionist.  She believed them to be appropriate comparators.  There was no evidence as to their actual political opinion or nationality.

(3.10)	The claimant also had previously taken proceedings in the Industrial Tribunals and Fair Employment Tribunal against the Chief Constable of the Police Service of Northern Ireland and James Drennan who was the previous Head of the Police College.  A copy of the settlement terms of the previous action were made available to the Tribunal showing that the claimant had withdrawn her action on receipt of an apology from the respondents.  The respondents did not accept that the claimant had been discriminated against or victimised in the terms of that apology.

(3.11)	At the time of the offer of employment in February 2006, Mr Drennan had left the college and the position of Head of the Police College was then held by Mr David Strudley.  Mr Strudley played no active part in the discussions of February or the employment of the two successful candidates.  Mrs Mounce was aware of the previous proceedings.  The claimant accepted that Mrs Mounce had recommended the claimant for the position in February 2006 and the claimant also accepted that Mrs Mounce had no reason to discriminate against her.

(3.12)	Superintendent Gracey was not employed by the Police College at the time of the claimant’s previous proceedings against the first-named respondent and James Drennan and had no knowledge of those proceedings.  

(3.13)	Superintendent Gracey was in February 2006 the Head of the Leadership Development Programme at the Police College.  These programmes were resource intensive and Superintendent Gracey had continuously addressed the need for additional resources.  

(3.14)	Superintendent Gracey was made aware of the approach to the claimant for temporary employment but stopped that process because of a lack of budget. 

(3.15)	Superintendent Gracey was however successful in obtaining additional resources some two weeks later sufficient to recruit a member of staff to fill the ongoing absence of which the claimant had been informed and also a second member of staff as a temporary measure.  Superintendent Gracey instructed Mr Simmons to complete the documentation.  

(3.16)	The documentation was an application to Grafton Recruitment Agency.  Superintendent Gracey spoke to Mr Lagan of Grafton and was given approximately ten names of people with the agency who would be suitable for the posts.  From those, Superintendent Gracey chose the successful applicants, both of whom accepted the positions offered.

(3.17)	It was accepted by both Superintendent Gracey and Mrs Mounce in giving evidence to the Tribunal that both were aware of the claimant’s previous interest in the post and the conversation she had with Mr Simmons.  Both expressed regret they had not actively brought the additional resources and the availability of a post subject to the Grafton registration to the attention of the claimant.  

(3.18)	There are essentially two methods for recruiting temporary staff in the Police College.  

(3.19)	The first is the provision of consultancy services under the PRRT.  It was under this programme that the claimant was subsequently employed by the Police College from November 2006 to January 2007.  

(3.20)	Secondly, the Tribunal was referred to a copy of a variation to contract form dated 16 July 2004 between the PSNI and Grafton Recruitment indicating that Grafton Recruitment were to act as sole suppliers in the provision of temporary workers to PSNI.  

(3.21)	Other training assistance is also provided through charitable and other organisations who will contribute to a particular programme for up to four hours at a time.  They are paid for from delegated budget rather than core salary budget.  The post that the claimant had spoken to Mr Simmons about was a core function job and subject to the contract with Grafton Recruitment.

4.	The law

The claimant brings claims of sex discrimination under Article 3(1) of the Sex Discrimination (Northern Ireland) Order 1976, discrimination on the grounds of her political opinion under Article 3(2) of the Fair Employment and Treatment (Northern Ireland) Order 1998 and race discrimination under Article 3 of the Race Relations (Northern Ireland) Order 1997.

5.	Each provide in similar terms that a person discriminates against another person by reason of sex, race or of a different political opinion if on any of those grounds he treats that other person less favourably than he treats or would treat other persons.  The other persons with whom a comparison is sought must be such that the relevant circumstances in the one case are the same or not materially different in the other.

6.	The legislation covering race, sex and political opinion all contain in similar terms a direction that if the Tribunal finds facts from which it could, in the absence of an adequate explanation, hold that the respondent has committed an act of discrimination against the claimant then the Tribunal shall uphold the complaint unless the respondent proves that he did not commit the act of discrimination or is not to be treated as having committed that act.  Thus in such a situation the burden of proof passes to the respondent to show that he has not committed any act of discrimination.  Guidance on the application of these Regulations has been given by the Court of Appeal in Igen Limited  v  Wong [2005] IRLR 258 which has been endorsed and applied in a number of cases and most notably in the Court of Appeal in the case of Madarassy  v  Nomura International PLC [2007] EWCA Civ 33.

7.	Igen contains guidelines issued by the Court of Appeal which set out a two-stage process in cases where direct discrimination is alleged as in the present case.  Firstly, the claimant has to prove facts from which the Tribunal could conclude there has been unlawful discrimination.  Once that is done the burden of proof shifts to the respondent who has to show that he did not commit unlawful discrimination.  The respondent has to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the protected grounds.

8.	Igen sets out a 13 point guidance.  The first four points in the guidance are as follows:-

“1.	Pursuant to Section 63A of the Sex Discrimination Act it is for the claimant who complains of sex discrimination to prove on the balance of probabilities the facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II where which by virtue of Section 41 or Section 42 of the Sex Discrimination Act is to be treated as having been treated against the claimant.  These are referred to below as ‘such facts’.

2.	If the claimant does not prove such facts he or she will fail.

3.	It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination.  Few employers would be prepared to admit such discrimination, even to themselves.  In some cases the discrimination will not be an intention but merely based on the assumption that ‘he or she would not have fitted in’.  

4.	In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.”

9.	In Madarassy the Court of Appeal again considered the burden of proof point.  It considered the two stage test and Lord Justice Mummery at Paragraph 56 said:-

“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.”

10.	Lord Justice Mummery went onto say at Paragraph 57:-

“ ‘Could conclude’ in Section 63A(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.”

11.	Lord Justice Mummery said at Paragraphs 71 – 72:-

“Section 63A(2) does not expressly or impliedly prevent the Tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant’s evidence of discrimination.  The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situations with which comparisons are made are not truly like the complainant or the situation of the complainant; or that, even if there has been less favourable treatment of the complainant, it was not on the ground of her sex or pregnancy.”

“Such evidence from the respondent could, if accepted by the Tribunal, be relevant as showing that, contrary to the complainant’s allegations of discrimination, there is nothing in the evidence from which the Tribunal could properly infer a prima facie case of discrimination on the proscribed ground.”

12.	Conclusions from facts found

Having considered the law, as set out above, the Tribunal firstly considered whether or not in relation to any of the protected grounds the burden of proof should transfer to the respondent.  

13.	The Tribunal is satisfied that in this case the burden of proof does not shift to the respondent.  On the facts as found, the Tribunal cannot conclude in the absence of an adequate explanation from the respondent that the respondent has committed an unlawful act of discrimination against the claimant.  

14.	The claimant had been invited, expressly by the respondent, to discuss possible employment with them.  She had previously been employed by the respondent and had been suggested by Mrs Mounce to Mr Simmons as a suitable candidate for the role envisaged.

15.	Two matters however intervened to prevent her recruitment at that stage.  The first was a lack of budget in the Police College at that time to fund the post.  The second was the fact that the claimant did not register with Grafton Recruitment even though it was indicated to her by Mr Simmons that may be a necessary requirement for the post.

16.	The Tribunal finds that the discussions between the claimant and Mr Simmons amounted to exploratory discussions for the post.  The precise duration of the post was not confirmed nor were the number of days per week that were required.  The appropriate rates of pay were not confirmed and Mr Simmons indicated to the claimant that certain other steps may have to be carried out before she could be employed including in particular the potential need to register with Grafton Recruitment Agency.  

17.	The claimant established no facts on the evidence from which the Tribunal could raise the inference that race played any part in any deliberation nor did she adduce evidence regarding religious belief or political opinion.

18.	In relation to victimisation, on the facts the Tribunal found that the only person involved with recruitment for this post who had knowledge of the claimant’s previous claims with the Tribunal was Mrs Mounce.  She in fact was the person who initially recommended the claimant to Mr Simmons as a person to approach for the post.  The claimant in her evidence expressly accepted that Mrs Mounce had no reason to discriminate against her and did not hold her religion, gender or race nor previous proceedings against her.  The claimant also expressly accepted in her evidence that the reason that the post was not available to her at the outset was because of budget constraints.  

19.	There is no doubt that the recruitment process was handled badly by the Police College.  This was accepted both by Superintendent Gracey and Mrs Mounce in their evidence to the Tribunal.  Both indicated clearly that with hindsight they should again have contacted the claimant at the time that a budget became available for the post.  They apologised to her for not doing so.  Understandably the claimant felt aggrieved that a post which had been discussed with her only a few weeks before had been given to two other individuals without any recourse to her.  However the Tribunal is unable to find a discriminatory basis for the decision to recruit for the post directly with Grafton Recruitment Agency in accordance with the Police College’s contract for temporary workers in that regard.

20.	For the above reasons the claimant’s claims are dismissed.

Chairman:

Date and place of hearing:	14 – 18 May 2007, Belfast

Date decision recorded in register and issued to parties: