FAIR EMPLOYMENT TRIBUNAL

CASE REF:	140/00 FET

CLAIMANT:			Kevin Curley	

RESPONDENTS:	1.	Chief Constable of the Police Service of Northern Ireland 
2.	Superintendent McCallum

DECISION

The unanimous decision of the Tribunal is that the claimant was not discriminated against by way of victimisation by the respondents, nor was he discriminated against by the second named respondent on the grounds of religious belief. The claimant was discriminated against by the first named respondent on grounds of religious belief. 

Constitution of Tribunal:
Chairman:		Mr Kinney
Members:		Ms McFarline 
			Mrs McCormick

Appearances:
The claimant appeared and represented himself.
The respondents were represented by Mr Dunlop, Barrister-at-Law, instructed by the Crown Solicitor’s Office.

The Issues

1.	Was the claimant unlawfully discriminated against on the grounds of his religion in the respondent’s failure to promote him to the rank of Sergeant ahead of Constables MH and/or R in January and February 2000?

2.	Was the claimant unlawfully discriminated against on grounds of his religion in the respondent’s failure to promote him to the post of Sergeant ahead of Constables M and/or J in 1999?

3.	Did the respondents victimise the claimant unlawfully in relation to the failure to promote him ahead of the named comparators because of proceedings the claimant had issued in the Industrial Tribunal and Fair Employment Tribunal?

4.	Were the respondents aware of the proceedings issued by the claimant?

5.	The Tribunal heard evidence from the claimant, Mr McCallum, Mr Wilson and Mr Lamont.

6.	The Tribunal also was referred to documents in two bundles.  As advised to the parties at the hearing, the Tribunal only considered those documents in the bundles to which it was specifically referred.

The Facts

7.	At the material time the claimant was employed by the RUC as a Constable.  

8.	In November 1998 he sat the Constable to Sergeant’s promotion board and on 8 January 1999 he was sent a letter from Superintendent McCallum confirming he had been successful.

9.	On 12 February 1999 Superintendent McCallum wrote again to the claimant. The letter was designed to inform the successful candidates how and when they would be promoted.  In earlier promotion boards an order of merit was prepared and officers were offered the next vacancy arising in any Division.  As a consequence there were a substantial number of appeals against the allocations made and in an effort to avoid the appeal processes, the process was changed for the promotion selection process involving the claimant.  Each candidate was sent a proforma in which they were asked to indicate the Divisions in which they were prepared to serve.  The candidates were warned that the number of Divisions they indicated may affect the speed at which they were promoted.  The first person on the order of merit who indicated a particular Division in which the vacancy occurred would be offered the post even if other officers were higher on the order of merit list but had not indicated a willingness to serve in that Division

10.	Superintendent McCallum also indicated in his letter that it would not always be possible to place an officer in accordance with his preferences. Although Mr McCallum wrote the letter of 12 February 1999 the allocation of officers to fill vacancies was under the sole control of Chief Inspector Wilson. 

11.	The claimant returned his pro forma and indicated that he would prefer to serve in Divisions ‘A’, ‘B’, ‘D’, ‘E’ and ‘P’.  This information was recorded in a document which was referred to at hearing as the matrix.  

12.	On 22 March 1999 the claimant spoke to Superintendent McCallum by phone.  In that conversation he discussed the various options regarding his promotion and agreed with Superintendent McCallum to include an additional preference for ‘O’ Division and specifically for posting to Magherafelt Station as this was within travelling distance of his home.  

13.	On or around the 22 March 1999 Mr McCallum put a manual notation on the right-hand side of the matrix form ‘O? M’Felt’.  He did not speak to Mr Wilson about this change in the matrix.

14.	Subsequently, Constable MH was appointed to ‘O’ Division Magherafelt on 10 January 2000.  Constable MH was 77th on the promotion list whereas the claimant was 41st on the promotion list. Constable MH was a Protestant. The claimant was a Catholic. 

15.	The claimant met with Mr McCallum on 24 February 2000 regarding the promotion of Constable MH.  The matter was then brought to the attention of Mr Wilson.  Mr Wilson told the Tribunal that he had not noticed the manuscript notation on the right-hand side of the page and that the failure to promote the claimant to the vacant position in ‘O’ Division was an honest mistake.

16.	Mr Wilson also promoted Constable R to ‘O’ Division, Maghera. Constable R was a Protestant. Promotion was communicated to the force in general by way of a Weekly Order.  In Constable R’s case the Weekly Order was made and published on 16 February 2000 and confirmed the promotion of Constable R to the rank of Sergeant in ‘O’ Division with the effective date of 13 March 2000.  The effective date of promotion is not the date of the Weekly Order but the date on which the officer actually takes up post in the new Division and therefore in Constable R’s case his promotion to the rank of Sergeant was effective from 13 March 2000.

17.	Mr Wilson explained to the Tribunal that as he had already told Constable R he was to be promoted and had told ‘O’ Division he was coming, that effectively an offer had been made to Constable R which he had accepted and that it was ‘almost legal’.  He felt he had to follow through on that decision as it would otherwise be unfair to Constable R.

18.	Mr Wilson made a report to Mr McCallum about this case on 19 April 2000.  In his report he deals with the promotion of Constable MH but does not mention Constable R.  In his witness statement, Mr Wilson does not refer to the situation surrounding Constable R.

19.	In the respondent’s amended response dated 27 April 2006 the respondents state at paragraphs 4 and 5:-

“4	the claimant subsequently verbally told Superintendent McCallum that he would be prepared to also consider ‘O’ Division (Magherafelt).  This was in or around 24 February 2000, not early 1999 as the claimant alleges.  Superintendent McCallum made a handwritten annotation to the merit list held by the Career Management accordingly.  At no time did the claimant formally notify Personnel or Chief Superintendent Wilson of this.

5.	Chief Superintendent Wilson did not know of this when he promoted Constable MH to Sergeant in ‘O’ Division on 10 January 2000 and indeed the claimant had not notified Superintendent McCallum of his willingness to consider ‘O’ Division (Magherafelt) until 24 February 2000.”

The amended response goes on to say at paragraph 8:-

	“furthermore as at the date of Constable MH’s promotion, the decision makers involved in the matters which are the subject matter of these proceedings were unaware of any other Tribunal claims brought by the claimant”.

20.	There is no mention in the amended response of the promotion of Constable R or the reasons for that promotion.

21.	The matrix was in the custody and control of Mr Wilson.  The original matrix was not available to the Tribunal to inspect and the copy provided was only a partial copy.  No evidence was given to explain the loss or destruction of the original document.  Mr Wilson gave evidence to the Tribunal that at the time the vacancy in ‘O’ Division for Magherafelt came up he recollected that he ran down the ‘O’ Division column on the form, got to MH’s name and promoted him.  He did not look at the manual notations on the right-hand side of the form.  Mr Wilson said that where he was making any changes to the matrix he may have made a note in the right-hand margin but also ticked the appropriate box in the matrix to show the change and he relied simply on the columns containing ticks when he was checking for the next available officer.  Mr Wilson said that after promoting Constable MH he went to the same page in the matrix for the next vacancy in ‘O’ Division and found Constable R’s name also at 77th in the order of merit as he believed he was on that page having already promoted Constable MH.  Mr Wilson looked at the matrix on a daily basis and often more than once on the same day.  He had never made a similar mistake in his time in Personnel from September 1998 to March 2000.

Constables M and J

22.	Mr Wilson took over the responsibility for the Constable to Sergeant promotion process in September 1998.  At that time he was given the existing merit list for 1997.  Some officers had been promoted from this list but some had not.  In this merit list officers had not been given an opportunity to express preferences and a matrix had not been created.

23.	Constable J was first offered promotion on posting to ‘N’ Division in Weekly Order of 21 October 1998 and his promotion was to have effect from 23 November 1998.  He lodged an appeal against that promotion on welfare grounds.  The promotion was cancelled and his appeal was successful.  He was subsequently promoted to ‘K’ Division with effect from 21 June 1999 and again lodged an appeal.  His promotion to ‘K’ Division was cancelled on 23 June 1999.  Constable J was then promoted and posted to ‘A’ Division with effect from 28 June 1999.

24.	Constable M was first offered promotion in posting to ‘N’ Division with effect from 7 December 1998 in Weekly Order dated 4 November 1998.  Again similarly to Constable J he lodged an appeal on welfare grounds.  On 16 December 1998 his promotion on posting was cancelled.  He was then promoted and posted to ‘P’ Division with effect from 8 March 1999.

25.	Constable M’s posting was in fact made after the creation of the select list for the claimant’s competition but before the matrix was created on 16 March 1999.

26.	Neither Constable J nor Constable M appeared on the same select list as the claimant nor were they placed on the matrix.  These constables were under the older system where they were simply allocated the next vacancy in whatever Division that occurred in but were entitled to appeal on a number of grounds including welfare grounds. 

27.	Custom and practice was to try and promote any officers on the older select list before commencing to use the new list.  It would have been inappropriate to try and place the officers from the previous list in a different order of merit where they had not competed directly against the officers on that order of merit.

28.	There was a practical difficulty trying to place those on the 1997 list on the new list and matrix as it was unclear where they should be put.  It was likely that if they were included on the new order of merit they would be placed at the top to be appointed before the officers on the new list.  However that was not a hard and fast rule.  Another officer, Constable B, was transferred from the 1997 select list to the 1998 select list and subsequently the 1999 matrix.  There was no clear reason given for this.

29.	Section 11, paragraph 22 of the RUC Code states as follows:-

“22	member not promoted from current list.  Any member whose name appears on a select list and who is not promoted during the currency of that list will have his name included on the succeeding list providing his conduct, efficiency and general suitability for promotion remains satisfactory.”

30.	The Tribunal was told that the section of the Code referred to was not a ‘living’ document and in many respects had been overtaken by events and general practice.  The Code made no reference to an appeals process which was at the relevant time governed by Force Order 15/96. This was the Order dealing with the appeals for Constables J and M.

Victimisation

31.	Mr McCallum was aware of other industrial tribunal proceedings that had been brought by the claimant.  He was aware of these at the material time.  Mr McCallum had no discussions or involvement with either Mr Lamont or Mr Wilson regarding the claimant’s promotion to Sergeant until after 24 February 2000.  

32.	Mr Wilson had never been named as a party in proceedings brought by the respondent but had appeared as a witness in one case. There was no evidence that Mr Wilson knew of those proceedings at the material time. He also had no conversations with either Mr McCallum or Mr Lamont relating to promotion of the claimant to Sergeant until after 24 February 2000.  

33.	Mr Lamont had been named as a respondent in other tribunal proceedings that had been brought by the claimant.  He was aware of these at the material time.  However he had no role to play in the promotion of the claimant to Sergeant and did not become involved in the process until he conducted the grievance procedure in April and May of 2000.  He also had no discussions with either Mr McCallum or Mr Wilson relating to these events before 24 February 2000.  

34.	The law

Article 3(2) of the Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO) provides that

“ a person discriminates against another person on the grounds of religious belief or political opinion in any circumstances relevant for the purposes of the Order if:-

(a)	On either of those grounds he treats another less favourably than he treats or would treat other persons.”

35.	Article 3 provides that a comparison of the cases of persons of different religious belief or political opinion under paragraph (2) must be such that the relevant circumstances in the one case are the same, or not materially different in the other.

36.	Article 38(A) of FETO states:-

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

(a)	Has committed an act of unlawful discrimination or unlawful harassment against the complainant; or

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

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

37.	Although the initial claim in this matter was presented to the Tribunal prior to the amendment to FETO to incorporate Article 38A, the Tribunal is satisfied these Regulations applied to these proceedings by reason of the transitional provisions contained in Regulation 2 of the FETO (Amendment) Regulations (Northern Ireland) 2003 and there was no dispute between the parties that the relevant provisions regarding the transfer of the burden of proof applied to the claimant’s claims.

38.	Guidance on the application of the Burden of Proof Regulations has been given by the English Court of Appeal in Igen Ltd v Wong [2005] IRLR 258 in relation to a sex discrimination case. It has equal application in this case and has been accepted as such by the parties.  The guidance in Igen has been endorsed and applied in a number of cases, most notably by the Court of Appeal in the case of Madarassy v Nomura International plc [2007] EWCA Civ 33 and by the Northern Ireland Court of Appeal in the case of Arthur v Northern Ireland Housing Executive and SHL UK Ltd [2007] NICA25.

39.	Igen sets out a two-stage process in cases where direct discrimination is alleged as in the present case.  First, 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 any of the protected grounds.

40.	Igen sets out a 13-point guidance which provides 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 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 or which by Section 41 or Section 42 of the Sex Discrimination Act is to be treated as having been committed 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 a 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 in 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.

(5)	It is important to note the word “could” in Section 63A(2).  At this stage the Tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination.  At this stage a Tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

(6)	In considering what inferences or conclusions can be drawn from the primary facts, the Tribunal must assume that there is no adequate explanation for those facts.  

(7)	These inferences can include, in appropriate cases, an inference that it is just and equitable to draw in accordance with Section 74(2) of the Sex  Discrimination Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within Section 74(2) of the Sex Discrimination Act.

(8)	Likewise the Tribunal must decide whether any provision of any relevant code of practice is relevant and; if so, take it into account in determining, such facts pursuant to Section 56A(1) of the 1975 Act.  This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

(9)	Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.

(10)	It is then for the respondent to prove that he did not commit, or as the case may be is not to be treated as having committed that act.

(11)	To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex since “no discrimination whatsoever” is compatible with the Burden of Proof Directive.

(12)	That requires a Tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.

(13)	Since the facts necessary to prove an explanation would normally be in the possession of a respondent, the Tribunal would normally expect cogent evidence to discharge that burden of proof.  In particular, the Tribunal will need to examine carefully explanations where failure to deal with the questionnaire procedure and/or code of practice.

41.	In Madarassy, Lord Justice Mummery said:-

	“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 were 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 claimant’s allegations of discrimination, there is nothing in the evidence from which the Tribunal could properly infer in prima facie case of discrimination on the proscribed ground.”

42.	By Article 3(4) of FETO “a person (‘A’) discriminates by way of victimisation against another person (‘B’) in any circumstances relevant for the purpose of this Order if:-

(a)	he treats B less favourably treats or would treat other persons in those circumstances; and

(b)	he does so for a reason mentioned in paragraph (5).

The reasons are that:-

(a)	B has:-

(i)	brought proceedings against A or any other person under this Order; or

(ii)	given evidence or information in connection with such proceedings brought by any person or any investigation under this Order; or

(iii)	alleged that A or any other person has (whether or not the allegation so stated) contravened this Order; or

(iv)	otherwise done anything under or by reference to this Order in relation to A or any other person; or

(v)	A knows that B intends to do any of those things or suspects that B has done, or intends to do, any of those things.

43.	The burden of proof provisions also apply to claims for victimisation.  It is necessary to compare the treatment afforded to the claimant who has done that protected act to the treatment which was or would be afforded to other employees who have not done the protected act.  It is well established law that it must be established that the alleged discriminator had actual knowledge.

Conclusions of the Tribunal

The claim for victimisation

44.	It is clear that knowledge on the part of the alleged discriminator of the protected act is a pre-condition to a finding of victimisation.  In this case and on the basis of the evidence heard the Tribunal cannot be satisfied that either Mr McCallum or Mr Lamont played any part in the decision to promote any of the comparators in this case ahead of the claimant.  Constables J and M were promoted before Mr Lamont had joined the Personnel Department and there was no suggestion that Mr McCallum played any role in their promotions.  The decisions regarding promotions rested with Mr Wilson.  

45.	The Tribunal was unable to be satisfied on the evidence heard that Mr Wilson knew of the claimant’s protected act at the relevant time when decisions were being made regarding the promotion of any of the comparators.  Indeed it would seem most unlikely that Mr Wilson could have known of the existence of proceedings in which he was to become involved at the time of the promotion of either J or M.

46.	The Tribunal has therefore concluded that in the absence of the required knowledge by Mr Wilson of the protected act, the claimant was unable to establish the necessary facts on which the Tribunal could conclude, in the absence of an adequate explanation, the respondent had committed the act of unlawful discrimination.  The burden of proof therefore did not shift to the respondent and the claim of discrimination by way of victimisation must fail and is dismissed.

47.	Similarly in relation to the second-named respondent, Mr McCallum, the claimant has not been able to establish the necessary facts from which the Tribunal could conclude, in the absence of an adequate explanation, that he had committed any act of unlawful discrimination.  There was no evidence that Mr McCallum was involved in the actual promotion of the comparators or that he had influenced in any way the actions of Mr Wilson who did carry out the actual promotion procedure. His only role was to amend the matrix at the request of the claimant and subsequently to refer Mr Wilson to the incorrect promotion of Constable MH. The burden of proof therefore does not shift and the claims of discrimination on grounds of religious belief and victimisation against Mr McCallum must fail and are dismissed.

Religious discrimination

48.	There is no doubt on the basis of the findings of fact as set out in this decision that the claimant, a Catholic, had not been selected for promotion to one of the Divisions that he had named in circumstances where his Protestant comparators, Constables J and M and Constables MH and R, had been selected for promotion.

49.	However those bare facts are not sufficient to shift the burden of proof.  As Lord Justice Mummery said in Madarassy at Paragraph 56:-

“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 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.”

50.	There are two different sets of circumstances for the Tribunal to consider.  First, there are the circumstances of Constables J and M and secondly, Constables MH and R.

51.	Constables J and M were promoted ahead of the claimant but were not on his merit list.  They were on a previous merit list in which there was no opportunity for the officers to express any preference for the Divisions they would serve in.  They were first offered promotion in 1998 and both used the appeal process available to them to challenge the placements offered on welfare grounds.  Constable M was successful in his appeal and was eventually posted to ‘P’ Division on 8 March 1999.  Constable J was successful in his appeal, and was eventually posted to ‘A’ Division on 28 June 1999.  

52.	The Tribunal accepted the respondents’ evidence that it was custom and practice, where possible, to promote officers from earlier merit lists before promoting from the newer lists.  Both Constables M and J had been offered promotions but had appealed those promotions and were awaiting suitable postings.  The Tribunal was unable to determine that should J and M have been placed on the matrix they would have been lower on that matrix than the claimant.  Indeed, the evidence of the respondents is, and the Tribunal accepted it as reasonable, that if the Constables had been placed on the matrix at all it would have been at the top.

53.	The Tribunal therefore is satisfied that in relation to Constables J and M the burden of proof does not shift to the respondents.  On the facts as found, the Tribunal cannot conclude in the absence of an adequate explanation from the respondents that the respondents have committed any unlawful act of discrimination against the claimant.

54.	Even if the Tribunal is wrong not to shift the burden of proof to the respondents, the Tribunal would nevertheless have concluded that the respondents have provided an explanation for the promotion of Constables J and M which is not tainted with discrimination.  As Elias P said in Laing  v  Manchester City Council [2006] ICR 1519 at Paragraph 75:-

“The focus of the Tribunal’s analysis must at all times be the question of whether or not they can properly and fairly infer race discrimination.  If they are satisfied that the reason given for the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination then that is the end of the matter.  It is not improper for a Tribunal to say, in effect, ‘there is a nice question as to whether or not the burden has shifted, but we are satisfied here that, even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it had nothing to do with race’.”

55.	The circumstances in which Constables MH and R were selected for promotion however are somewhat different.  Both these Constables were on the same matrix as the claimant and both of them appeared well below the claimant on the matrix.  The Tribunal has found as a fact that the claimant notified his change to his preference to Superintendent McCallum on 22 March 1999.  The matrix was then notated on or around that date.  Constable MH was not promoted until 10 January 2000.  Constable R was informed of his promotion at some date in early February 2000 but was not actually promoted until after the claimant had brought Constable MH’s promotion to the attention of the respondents. That second promotion was allowed to proceed. 

56.	 On the facts as found, therefore, the Tribunal concludes in the absence of an adequate explanation, that the first named respondent could have committed an act of discrimination against the claimant which is unlawful by virtue of Article 3 of FETO.

57.	The burden of proof has moved to the first named respondent and it is for the first named respondent to prove that it did not commit or is not to be treated as having committed that act of discrimination.  In accordance with the guidance of Igen v  Wong, the first named respondent must prove that the treatment was in no sense whatsoever on the grounds of religion.

58.	The Tribunal were unimpressed and unconvinced by the evidence given by the first named respondent in several respects. The evidence given at tribunal and in particular the evidence of Mr Wilson was at times inconsistent, evasive and lacked credibility. It was at odds with the earlier written statements of the first named respondent in its response and in correspondence. Many things were left unexplained including the lack of records and lack of original documentation. In considering these matters the tribunal, on the balance of probabilities, does not accept Mr Wilson’s version of events.

59.	The explanation for the promotion of Constable M by Inspector Wilson was that he did not see the notation at the side of the matrix.

Mr Wilson told the Tribunal that when an alteration to the matrix was requested by an officer, his practice was to tick the appropriate box indicating the new preference and on occasion to make a notation on the right hand side of the matrix.  He was therefore clearly aware of the notations on the matrix as many were his own.  The Tribunal find it unusual that he would not immediately notice notations made by another individual on a document which was his sole responsibility and which, he told the Tribunal, was kept under lock and key. It is also a finding of the Tribunal that the notation was made on or around 22 March 1999 some nine months before Constable MH was promoted. It seems implausible to the Tribunal that a senior police officer, looking at the document on a daily basis, perhaps even several times a day could fail to see the notation over a prolonged period.

It is the unanimous view of the Tribunal that the notation on the matrix would have been readily apparent to anyone making even a cursory examination of the document.  

60.	The Tribunal was unfortunately not offered the opportunity to inspect the original document.  For reasons that were never explained to the Tribunal, the original documents were not available and only a partial copy of the matrix was made available for inspection.  There was no evidence given as to how the original document was mislaid or destroyed or how or when the copy provided came into existence.  However, the Tribunal took the unanimous view that even on the copy provided the notation was clear. From common experience of the nature of photocopies of documents it is reasonable to assume that the notation would have been even more visible on the original document.  There were other notations on the margins of the document in relation to other officers but the Tribunal was informed that no other similar mistake had been made from September 1998 to March 2000.

The Tribunal further finds that the explanation given for continuing in the promotion process for Constable R to be extremely unconvincing.  Whilst acknowledging the clear unfairness of the appointment of Constable MH before the claimant, the first named respondent then proceeds with the promotion of a second officer entirely incorrectly and knowing that it was incorrect before that promotion took effect.  The reason given by Mr Wilson that it would have been unfair to Constable R and that he felt himself bound by an offer he had made which was ‘almost legal’ lacks credibility. 

61.	The Tribunal determines that the first named respondent has failed to discharge the burden of proof and finds that the first named respondent did discriminate against the claimant on the grounds of religious belief.

62.	The claimant’s claim will be listed in due course to consider any remedy to which the claimant is entitled.

Chairman:

Date and place of hearing: 	14 April 2008 – 23 April 2008
(excluding – 17, 18, 21, and 22 April 2008), Belfast 

Date decision recorded in register and issued to parties: