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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Lawlor v Police Service of Northern Ireland [2009] NIIT 1151_06IT (10 July 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/1151_06IT.html Cite as: [2009] NIIT 1151_06IT, [2009] NIIT 1151_6IT |
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CLAIMANT: Francis Lawlor
RESPONDENTS: 1. Police Service of Northern Ireland
2. Chief Inspector Kernohan
The unanimous decision of the tribunal is that the claimant's claims of disability discrimination and race discrimination are dismissed.
Constitution of Tribunal:
Chairman: Mrs Ó Murray
Members: Mr R Gray
Mr P Killen
Appearances:
The claimant appeared and was unrepresented.
The respondents were represented by Mr P Coll, barrister-at-law, instructed by the Crown Solicitor's Office.
The Claim
The Issues
(a) did the claimant's termination on 9 June 2006 constitute less favourable treatment for a reason related to the claimant's disability and, if so, was it justified;(b) was there a failure by the respondents to make reasonable adjustments, firstly in relation to the training period, and secondly, was there a failure to consider reasonable adjustments to enable the claimant to attest as a probationary constable and progress to working as a police officer in an operational setting;
(c) was the claimant harassed on the grounds of his race in an incident when Inspector McConnell made a comment about his accent;
(d) was the claimant discriminated against on the grounds of his race in relation to the termination of his training contract;
(e) did the exceptions in DDA and RRO for acts done under statutory authority, apply in this case.
Sources of Evidence
Findings of Fact
(1) The claimant was born and raised in the Republic of Ireland but at the time relevant to these proceedings resided in County Fermanagh.(2) He had long held an ambition to be a police officer, whether in the PSNI or the Garda Siochana. In pursuit of this ambition he had made three unsuccessful applications to join the Garda and had applied seven times to the PSNI, finally gaining a place on the training course at Garnerville after attending a course in England to help him pass the entrance exams. Since leaving the PSNI as a trainee, the claimant has gained a place as a trainee Garda Reserve Officer. At the time of the hearing the claimant had not passed out as a fully-fledged Garda Reserve Officer. It was agreed between the parties that a Garda Reserve Officer was not on a par with a PSNI officer as it was a lesser post which had no equivalent in the PSNI.
(3) At the outset the claimant essentially appeared to be saying that if he was good enough to be attested as a Garda Reserve Officer he should have been good enough for the PSNI. However the claimant accepted that Garda Reserve Officers were a different and lesser form of police officer than a PSNI officer. The tribunal made it clear to the claimant that it was not for this tribunal to conduct an exercise comparing the standards between the Garda Siochana and the PSNI.
(4) However the tribunal wishes to give some detail of the evidence given by the claimant because his evidence on this point was far from satisfactory and detracted substantially from his credibility. Prior to the hearing, the claimant said that he needed one day out of the hearing because he was going to attest as a Garda Reserve Officer. It was therefore arranged by agreement that the tribunal would not sit on Thursday 14 May 2009. However, on the first day of hearing, the claimant said that he was not going to attend the passing out ceremony because a complaint had been made some time before about him in relation to a road traffic accident and it had gone to the Garda Ombudsman. He stated that, whilst he had been exonerated in full the timings were such that he would miss the passing out ceremony.
(5) During the hearing, various points were put to the claimant by counsel for the respondents as it appeared that some further information had been elicited by the respondents in relation to this matter. After some prevarication, the claimant eventually conceded that the matter was still with the Garda authorities and it was clear to the tribunal that it was not the case that he had yet been exonerated. It was also conceded by the claimant that part of the incident in question was that the claimant had represented himself to be a Garda officer and that he could arrest the other person involved in the road traffic accident. The tribunal was far from satisfied with the claimant's evidence in relation to this matter. It was he who brought into the case before us, the issue of his suitability to be a Garda and the tribunal feels that he was trying to mislead us in relation to the position to bolster his case. The tribunal had serious concerns about the claimant's lack of credibility and/or unreliability on this and on other issues (see below). This meant that when there was a conflict in evidence between the claimant and the PSNI witnesses, the tribunal favoured the PSNI witnesses, as at best the claimant was an unreliable witness and at worst, he selectively gave information when he felt it could bolster his case.
(6) In the rest of the UK there is a "Community Reserve Officer" which seems to be akin to a Garda Reserve Officer, that is a lesser form of police officer than a regular police officer. There is no equivalent of this in Northern Ireland. There is a post of Community Police Officer in Northern Ireland.
(7) Applicants for Community Police Officer posts are operational officers who apply after several years experience as it is regarded as a specialist post. Community Police Officers are required to be able to operate operationally and are often first on the scene in cases of community disturbance and violence and therefore have to deal with very fraught, stressful situations.
(8) The claimant started as a trainee PSNI officer at Garnerville on 11 December 2005.
(9) It was clear from the PSNI witnesses that the claimant was regarded as a very hard-working trainee and was very personable and likeable and was popular on a personal basis during his time in training for the PSNI.
(10) The Garnerville course was a twenty-one week course during which an individual was designated as a trainee officer. At the end of that course the officer would attest as a probationary constable. At the point of attestation a probationary constable had all the powers and duties of a police officer. For example, he could bear a firearm and had the same powers of arrest as a fully-fledged officer.
(11) Following attestation, the probationary period was normally scheduled to last two years. During that period the probationer would be stationed at a PSNI station and could be out on his own on duty depending on where he was stationed. The ratio of supervision of probationers was one supervisor to three probationers outside Belfast and one supervisor to five probationers in Belfast. During the two-year probationary period a probationer would return at various times for further training to Garnerville.
(12) There were concerns in PSNI at an organisational level about the quality of probationer constables and the difficulties they encountered during their probationary period. For example, the Omagh District Commander Superintendent Skuce indicated at a meeting on 25 April 2006 with Inspector Porter that the vast majority of probationers in his district, had to have their performance monitored or their probation extended.
(13) The claimant started on 11 December 2005 on the Yellow training course. Different groups of trainees started at different times so that at any one time in Garnerville there were several groups of trainees at different stages in their training.
(14) Concern was raised by the trainers regarding the standard of the claimant's paperwork and his performance in scenario-based practical exercises. The claimant had obtained a high number of unacceptable grades in such paperwork and exercises.
(15) On 3 February 2006, Sergeant Greenlee, one of the trainers, initiated the Performance Below Standard scheme (referred to below as "the PBS scheme"). Sergeant Greenlee made a recommendation to the Course Director, Inspector Porter, that the claimant be put on level 1 PBS.
(16) An outline of the way the PBS scheme normally operated is as follows. A trainee is put on PBS if his performance in below standard. The first level is PBS 1 and the trainee is given ten working days to demonstrate improvement. The situation is then reviewed and, if the requisite level of improvement has been demonstrated, the person reverts to normal monitoring. If there is only slight improvement, the trainee is given another ten days to demonstrate significant improvement, that is, they are put on PBS level 2. If significant improvement is demonstrated, they go back to normal monitoring. If the improvement is only slight, they are given further time and if no significant improvement is made, a recommendation for dismissal is made by the Course Director to the Head of Foundation Programmes. The decision to dismiss is then taken by the Head of Foundation Programmes who at the relevant time for these proceedings was Chief Inspector Kernohan. When an individual is on the PBS scheme they are subjected to extra monitoring to assess whether they have made the necessary improvements.
(17) On 6 February 2006, Inspector Porter, the Programme Director responsible for the Yellow course, spoke with Sergeant Greenlee regarding her concerns about the claimant. Sergeant Greenlee recommended that a referral be made to the Educational Psychologist in view of the high number of unacceptable grades in the claimant's work. Inspector Porter reviewed the claimant's work and assessment in his Personal Development Portfolio (referred to below as "the PDP file"). The PDP file held all paperwork relating to work done by an individual during the entire training course. Inspector Porter decided to place the claimant on PBS level 1 and she made a referral to Dr McQuoid, the Educational Psychologist for assessment.
(18) On 23 February 2006, a second tutorial was arranged but did not take place because the claimant was allowed a further ten days to continue to gather evidence for the review tutorial which was then arranged for 10 March 2006. This extra time was not normally allowed under PBS.
(19) On 10 March 2006, the second tutorial in the PBS scheme took place. The claimant was maintained at PBS level 1 because, although he had improved, he had not yet reached a satisfactory standard in his written work. He was maintained on level 1 PBS for another ten days for his written work only. This was to be reviewed on 24 March 2006. This was additional time to the normal timescale allowed for the PBS procedure.
(20) On 29 March 2006, a third tutorial was held on the PBS scheme because the claimant's written communication had not yet reached the necessary standard. During the meeting the claimant became very distressed, was crying and appeared to have difficulties taking in what was being said to him. He was referred to Occupational Health and Welfare for support and was offered the option of re-coursing. Re-coursing meant that he would join the Green course which had started some weeks behind the Yellow course. This would enable him to have more time to improve his performance. The claimant refused the offer of re-coursing at this stage.
(21) On 31 March 2006, the claimant was involved in a scenario-based exercise regarding sudden death. During the exercise the claimant asked if it would be appropriate to give a mortuary attendant money as a kind of tip to ensure that he did a good job. Despite his classmates' strong reaction to this and the trainer's adverse reaction, the claimant attempted to justify his suggestion. He continued to justify his suggestion despite being told that a police officer should never be concerned in any monetary transactions because of the danger that his integrity could be impugned or that bribery allegations could be made. The claimant persisted in maintaining that he could see nothing wrong with this suggestion and indeed at hearing it was clear that he still believed that this could be a reasonable thing to do in practice. This raised a concern on the part of the PSNI. As the trainer stated in her report to her superior "I was more concerned because he would not let the matter drop and did not appear to (want to) see the organisational consequences of this". The tribunal simply does not know whether the claimant's behaviour in this incident was related to his disability, but it was one of the behavioural issues that was taken into account by the PSNI in deciding to terminate him.
(22) On 13 April 2006, the first case conference under the PBS procedure was held with Inspector Porter and was attended by the claimant and Sergeant Greenlee. Inspector Porter made the decision to re-course the claimant to the Green course to allow him extra time to complete his paperwork. Another ten days was given for further assessment, that is, until 28 April 2006. Re-coursing meant that the claimant would go back, join the Green team and would essentially be given extra time to complete his paperwork and exercises and would be subject to continuous assessment and monitoring. There was a dispute as to whether this meant in effect that the claimant received an extra ten weeks' or five weeks' training. It appears to the tribunal that the claimant effectively received five extra weeks' training and the essential point is that he received extra time to complete his paperwork and to be continually assessed and monitored.
(23) On 18 April 2006, the claimant started with the Green course group and on 19 April 2006, Sergeant McRoberts was made the claimant's Study Advisor. All the work done on the Green and Yellow courses for PDP purposes was in the PDP folder. The respondents took account of everything in the PDP folder when assessing the claimant before terminating his service. In the tribunal's view it was perfectly in order for the respondent to take account of everything in the PDP folder when assessing the claimant.
(24) Concerns were raised at various points about the claimant's behaviour. On balance the tribunal believes that the claimant had some behavioural issues, for example, picking his nose and eating it, putting his finger up his nose whilst talking to people and behaving in a "bizarre" way in the domestic violence practical. It is clear that the claimant was not aware that he was displaying these behaviours and he maintained an absolute denial of them during the hearing. However, we have no evidence that these behavioural issues were related to the claimant's disability. They were, however, taken into account by the respondents in reaching their decision to terminate the claimant.
(25) On 5 May 2006, Inspector McConnell met the claimant as part of the PBS procedure as he was the Director of the Green course, that is the equivalent of Inspector Porter on the Yellow course. This was a case conference under PBS level 2 in order to review the claimant's progress and was the final stage of PBS. Inspector McConnell went through Sergeant McRoberts report on the claimant's performance on the Green course with the claimant.
(26) Inspector McConnell had two options open to him in the PBS procedure. These were outlined on the PBS form as follows:
" (i) All doubts have been removed about the student. The studentwill revert to normal assessment .(ii) No significant improvement. A recommendation will now bemade to the Director of Training for dispensing with service."(27) The claimant agreed that he became agitated and spoke quickly during this meeting on the 5 May 2006. The claimant knew that he was going into the meeting with a possibility that his termination would be recommended and the tribunal's view is that this is why he became so agitated and spoke so quickly.
(28) Inspector McConnell's evidence was that it was at this meeting that he made reference to the claimant's accent. The thrust of Inspector McConnell's evidence was that he asked the claimant to slow down so that he could understand what he was saying and asked the claimant to listen to what he was saying, how he was speaking and asked if he was aware of his accent. This comment was made in the context of the importance of making himself clearly understood and that if he spoke quickly not everyone would understand his accent.
(29) The claimant denied that the accent comment was made at this meeting and at hearing alleged that there was a second meeting with Inspector McConnell when the accent comment was raised. There was absolutely no evidence of a second meeting despite the claimant's vehement assertion at hearing (an assertion not raised in his two witness statements) that such a meeting took place either before 5 May, after 5 May, or indeed during the Peace exercise in April. Indeed the tribunal spent some time allowing the claimant access to notebooks as he was adamant that the notebooks would support his contention, to check the date of this meeting. Even when the notebooks did not support the claimant's assertion, he still maintained that a second meeting had taken place. The claimant's vacillation on this point, points at best to his unreliability as a witness and at worst, detracts from his credibility. In view of this the tribunal preferred Inspector McConnell's evidence on the issue of the accent comment and finds that the comment on his accent was in the context of the claimant speaking quickly and agitatedly and thus being hard to understand. The tribunal also accepts Inspector McConnell's evidence that he would have made this comment to anyone irrespective of their type of accent in similar circumstances.
(30) Later that same day, 5 May 2006, the claimant was very upset because he knew termination was being recommended and there was a concern that he might harm himself. This was such a concern on the part of one of the claimant's colleagues that the colleague went to Inspector Porter and she contacted Occupational Health and Welfare to ask them to give the claimant support. Despite such extreme upset witnessed by his colleagues, the claimant was very calm a very short period later and appeared to have no insight into the distress and concern that he had caused to his colleagues, supervisors and Inspector Porter. This was one of the behavioural issues which appeared to form part of the decision to terminate. It is not clear to the tribunal that this was related to the claimant's disability whilst it did form part of the decision to terminate.
(31) On that same day, 5 May 2006, Chief Inspector Kernohan met the claimant and put him on special leave for one week.
(32) On 9 May 2006, Inspector McConnell met the PSNI Psychologist, Mrs Hazel Hendley to examine the claimant's work, to discuss possible reasonable adjustments under the DDA and to discuss how the claimant would cope in the operational environment. Dr McQuoid had seen the claimant on 27 February 2006 and her report of 3 March 2006 had been forwarded to Mrs Hendley for her to assess and put any relevant and feasible recommendations into practice following discussion with the claimant. Dr McQuoid's report was not sent to the PSNI managers in line with PSNI practice.
(33) On 10 May 2006, Inspector McConnell did a report to Chief Inspector Kernohan following the review meeting that he had had with the claimant on 5 May. Inspector McConnell's report reviewed the claimant's performance to date and outlined the problems he had and the things that had been done for him and raised the question as to how far adjustments would have to be made for the claimant's level of disability both in training and operationally ie following attestation as a probationary constable and beyond. Inspector McConnell recommended that a further assessment by a Clinical Psychologist and a case conference take place. In the event there was no further assessment by a clinical psychologist although the DDA case conference took place on the 7 June 2006 (see below).
(34) In the report of 10 May 2006, Inspector McConnell made his case strongly because he had grave concerns about the claimant's fitness to attest and he made reference to wider organisational implications if the claimant were allowed to attest. This reference to wider issues was characterised by the claimant as evidence of a pre-determination to get rid of him. On the contrary, the tribunal finds it to have been eminently reasonable of Inspector McConnell, and Chief Inspector Kernohan in turn, to have an eye to wider organisational issues, especially as their decision in this case could have implications for minimum standards. These were legitimate concerns and it was reasonable for those concerns to form the backdrop to the consideration of possible adjustments for the claimant.
(35) Throughout the training course in Garnerville, the claimant was helped substantially by trainers and his colleagues and the claimant also had to work late into the night practising and re-doing paperwork to ensure that he could perform to standard. The claimant denied that he received any help to that extent. The tribunal accepts the PSNI evidence on the extent of practice and help the claimant received. The claimant did get better because of this extensive assistance and because of his own practice which was excessive.
(36) On 12 May 2006, a welfare meeting was held with Chief Inspector Kernohan. The claimant went into the meeting worrying that he would be dismissed and the first thing that Chief Inspector Kernohan said to him was that he was not being sacked that day. Chief Inspector Kernohan's evidence (which we accept) was that the claimant did not take anything else in once he was told that he was not being sacked that day. Chief Inspector Kernohan essentially told the claimant at that meeting that he could go back with the Greens and he would see how the claimant did over the next few weeks. He made it clear that the claimant's work was not up to standard and made it clear that he was taking more advice from others including the occupational psychologist, Mrs Hendley. Chief Inspector Kernohan made it clear that it depended on the reports he received whether he would reconsider his decision that the claimant was not meeting the standards required.
(37) The claimant's case throughout was that Chief Inspector Kernohan had said to him that if he got his exams and passed the Green course he would attest as a probationary officer. In his evidence at tribunal however, the claimant said that Chief Inspector Kernohan had told him he would be "getting a second opinion" too. In other words there was a caveat to what Chief Inspector Kernohan told him, namely, that it was not as simple as the claimant passing the exams on the Green course but that Chief Inspector Kernohan was getting another opinion on the claimant's suitability. The tribunal therefore does not accept the claimant's case that if he passed his exams and the Green course he would inevitably attest nor does the tribunal accept that this was represented to him. It was clear that he was still being monitored and that there were serious concerns about his suitability to attest.
(38) A briefing exercise took place on 6 June 2006. This was an exercise carried out by Chief Inspector Kernohan in "exam conditions" and the aim was to simulate a real-life operational situation where police officers would be briefed verbally about an incident. It therefore differed from other briefing training exercises. The exercise involved Chief Inspector Kernohan calling out details of an alleged incident and a description of a suspect and the trainees had to take down an accurate note in order to brief their colleagues. The claimant failed the exercise badly because he failed to take down enough detail and got key details wrong.
(39) On 7 June 2006, there was a DDA case conference. The purpose of the conference was to see what adjustments could be put in place for the claimant particularly following attestation. The decision was reached that it was not possible to put any adjustments in place but it was agreed to let the claimant sit his exams as, if the claimant passed his exams he would emerge with a Certificate in Police Studies which gave him sixty "credits" which could be used for other courses. The DDA case conference decided that serious consideration should be given to dismissal. Chief Inspector Kernohan was to go off to make the decision on the claimant's future and to do a report.
(40) On 8 June 2006, as part of the personal safety examination ("the PSP") there was a baton exercise. This was a role-playing scenario where the trainee was assessed on using the baton to subdue an assailant who was played by a volunteer. The claimant failed the exercise.
(41) On 9 June 2006, Sergeant Boddy spoke to the students for twenty minutes and the tribunal accepts the respondents' evidence that the claimant was told why he had failed the baton exercise. There were four elements to his failure namely poor communication skills, the inability to protect himself, the inability to deal with confrontation and ineffective use of the baton. The claimant failed to see where he had gone wrong in the baton exercise.
(42) On 9 June 2006, the claimant met Chief Inspector Kernohan. This was the culmination of the PBS process and the DDA assessment and it was at this meeting that the claimant was told that his services were being terminated.
(43) At the termination meeting on 9 June 2006, Chief Inspector Kernohan mentioned (amongst other things) the failure in the baton exercise the previous day. The claimant asked to be allowed to resit that exercise the next week. The claimant alleged that he had had an ear infection during this briefing exercise and that this had led to his poor performance. He had not raised this at the time of the exercise but raised it for the first time at the termination meeting. In addition, the claimant gave two conflicting accounts of the reason for him being unable to do the exercise. Firstly he said that he could not take in all the details being called out by Chief Inspector Kernohan because of his ear infection and the pain involved but he also agreed that he said afterwards to Chief Inspector Kernohan that he would fill the details in later implying that he had taken in the details but simply had not enough time to fill them in. In his statements and at hearing the claimant maintained that he had given his medical appointment card to Chief Inspector Kernohan at this meeting to prove that he had had a problem with his ear. After much toing and froing at the hearing and issues raised about discrepancies on the face of the card, the claimant admitted that he did not produce the card at the meeting with Chief Inspector Kernohan. The claimant's evidence on this point detracts from his credibility. The claimant gave so many conflicting accounts on this point and aggressively maintained his stance until he could maintain it no longer in the face of the discrepancies being put to him, that the tribunal believes that the claimant was being less than candid about the production of the medical card.
(44) The claimant made much in his case of the fact that he was not allowed to re-sit that element of the PSP course given that he said it was an element in the decision to terminate his services. The respondents' case was that there was no point in allowing him to re-sit because the claimant did not accept that he had done anything wrong and additionally it was a health and safety issue for the claimant and the volunteer if the claimant redid the scenarios not having accepted that he had done anything wrong the first time round. The claimant's case was that he should have been allowed to re-sit and that in the Student Handbook it was made clear that everyone would get a re-sit. The respondents' case was that this was a discretion which the respondent could decide not to exercise in the claimant's favour.
(45) The claimant thought that the adverse outcome of the PSP exercise (of which the baton exercise formed part) was all that there was behind the decision not to allow him to attest but this was not the case. The decision had already been made to terminate the claimant's service because no further adjustments could be made. This recommendation to terminate was to all intents and purposes made at the DDA case conference on 7 June and the decision to terminate was communicated to the claimant on 9 June as the respondents did not want to communicate the decision to him before the exams so that he would be able to sit his exams and have a good chance of passing them.
(46) As is recorded in Chief Inspector Kernohan's account of the termination meeting of Friday 9 June, "We knew that your dismissal would have to be progressed on Wednesday after the DDA conference. We didn't tell you at the time to give you the opportunity to complete your exams without causing you upset in the hope that you would pass the academic side. You have passed this part so you will take away a Certificate in Police Studies which is a great achievement. This gives you 60 cat points which gives you exemptions if you go to do further education. This means you have got something to take away at the end of these 21 weeks."
(47) In addition in the same document it is recorded that Chief Inspector Kernohan said "You know it is not due to you failing your PSP, it is as a result of the case conference."
(48) The tribunal therefore finds that it was in order for the respondent not to allow the re-sit as it would not have changed the decision which had effectively already been made, namely, that the claimant was not fit to attest due to concerns over his ability to deal with paperwork and to process information, the inability to make adjustments to deal with his problems and because of concern over behavioural issues.
(49) The document terminating the claimant (the SAP5) states that he was being terminated under regulation 6(1)(a) of the Police Trainee Regulations (NI) 2001 as he was "Not likely to become an efficient or well-conducted constable on completion of his period as a police trainee". In the same document under the heading "Circumstances" it states "The officer following examination has both dyspraxia and dyslexia and after reasonable adjustments being made for educational purposes and a DDA case conference, the officer is not likely to be well conducted or efficient as a police officer."
(50) Chief Inspector Kernohan had had occasion to terminate 12 other officers
over the years under Regulation 6(1)(a) for various reasons.
(51) On 22 June 2006 there was an appeal hearing with Chief Superintendent Haylett. Chief Superintendent Haylett's aim was to ensure that he was satisfied that the dismissal was justified and that reasonable adjustments had been made by the College. The claimant alleged that this was a pre-determined decision and the tribunal does not accept this as there is simply no evidence to suggest that Chief Superintendent Haylett had made up his mind in advance and was simply going through the motions. Chief Superintendent Haylett was a senior officer with very long service and experience. He had specific experience on DDA panels and on assessing adjustments for individuals. He looked at all the papers and was satisfied that nothing else could be done.
(52) The claimant ultimately was allowed to resign on 3 July 2006, his appeal having been rejected.
(53) The claimant sent a grievance letter of 9 August 2006 and the outcome of the grievance was communicated on 21 August 2006. The tribunal finds that the statutory grievance procedure was complied with by both the respondent and the claimant.
(54) It was agreed by the claimant that police training was special given the nature of the job. However, the claimant vacillated between saying that operationally police work was special, to his saying that it was not much different from working in a call centre in terms of the requirements for accuracy and communication. The claimant, however, agreed that paperwork was essential for police work and formed the basis of all police work. The claimant conceded that he had had problems with his paperwork in training but did not accept that he would have any problems operationally despite the concerns of the police about his performance. The tribunal finds that the work of a police officer has special features and cannot be validly compared to the claimant's work in a call centre. Those special features which are fundamental to the job are the vital importance of accuracy in absorbing and recording information at speed, under pressure, in fraught situations. These skills are vital because they relate to the apprehending of offenders and their successful prosecution. This is a basic function of the police, is important to the PSNI as an organisation, to victims of crime, to alleged offenders and to society as a whole. For this reason the PSNI was entitled, in the tribunal's judgement, to maintain minimum standards which related to the carrying out of these basic functions.
Findings on the psychologists' evidence
"The use of a computer to write reports, to print his handwriting for clarity, a hand-held electronic spellchecker or electronic dictionary, learning definitions by heart by constant repetition, avoiding information overload and learning in small chunks, using multi-sensory techniques to acquire new information, using right brained skills such as rhythm, colour, imagination and patterns as ways of memorising."
The Law
The employer's duty to make adjustments is outlined in the DDA at Section 4A and states, insofar as is relevant to these proceedings, as follows:-
"4A – (1) Where –(a) a provision, criterion or practice applied by or on behalf of an
employer, …
places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect."
(1) identify the provision, criterion or practice applied that has put the claimant at a disadvantage compared to those who are not disabled;(2) identify the non-disabled comparator (where appropriate);
(3) identify the nature and extent of the substantial disadvantage suffered by the claimant.
"18B (1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to –
(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;
(b) the extent to which it is practicable for him to take the step;
(c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;
(d) the extent of his financial and other resources;
(e) the availability to him of financial or other assistance with
respect to taking the step;
(f) the nature of his activities and the size of his undertaking;".
Harassment is defined at Article 4A of The Race Relations (Northern Ireland) Order 1997 (referred to below as "the RRO").
"4A. – (1)… a person ("A") subjects another person ("B") to harassment in any circumstances relevant for the purposes of any provision referred to in Article 3(1B) where, on grounds of race or ethnic or national origins, A engages in unwanted conduct which has the purpose or effect of –
(a) violating B's dignity, or(b) creating an intimidating, hostile, degrading, humiliating or offensiveenvironment for B.(2) Conduct shall be regarded as having the effect specified in sub-paragraph (a) or (b) of paragraph (1) only if, having regard to all the circumstances, including, in particular, the perception of B, it could reasonably be considered as having that effect."
Article 3 of the RRO states:-
"3.(1) A person discriminates against another in any circumstances relevant forthe purposes of any provision of this Order if –
(a) on racial grounds he treats that other less favourably than he treats or
would treat other persons; or …"
….
The Police (Northern Ireland) Act 2000 (referred to below as "the Police Act") at Section 35(3) requires a person to serve as a police trainee before he or she can be appointed to the rank of constable in the Police Service of Northern Ireland. Section 41(3) of the Act gives power to the Secretary of State to make regulations as to the government, administration and conditions of service of police trainees.
"Conditions for appointment as Constable3 - A person shall not be appointed to the rank of Constable in the Police Service of Northern Ireland unless he has:-
(a) completed a period of service as a police trainee of 145 days or such longer period as may be specified by the Chief Constable;(b) obtained such qualifications in Police Studies as may be specified by the Chief Constable;(c) completed to such standard as the Chief Constable considers satisfactory, such other training for service as a police officer as may be specified by the Chief Constable;Termination of the period of service of a police trainee
6 –(1) Subject to standing orders made under Regulation 7, the Chief Constable may by giving one week's notice to a police trainee, terminate that person's period of service as a police trainee if –(a) the Chief Constable considers that the police trainee is not likely to become an efficient or well conducted Constable on completion of his period of service as a police trainee …"
DDA at section 59 states as follows:-
"Statutory authority and national security etc.59 – (1) Nothing in this Act makes unlawful any act done –
(a) in pursuance of any enactment; or
(b) in pursuance of any instrument made by a minister of the Crown under any enactment; or(c) to comply with any condition or requirement imposed by a minister of the Crown (whether before or after the passing of this Act) by virtue of any enactment."
Article 40 of the RRO provides for a similar exception for acts done under statutory authority.
"In my view it disregards and has to disregard the fact that in order to decide the application one way or the other, the Secretary of State had first to set up and apply a non-statutory criterion, the setting up and application of which involved the exercise of his administrative discretion and led to the discriminatory act complained of. What I would venture to describe as the fallacy of that approach can be recognised when one reflects that almost every discretionary decision such as that which is involved in the appointment promotion and dismissal of individuals in, say, local government, the police, the National Health Service and the public sector or the teaching profession, is taken against a statutory background which imposes a duty on someone, just as the Regulations of 1982 imposed a duty on the Secretary of State".
Conclusions
General
Race
Exception for acts done under statutory authority
"It is only in cases where a statutory obligation is specific in its requirements, leaving an employer with no choice other than to act in a particular way, that the provisions of the DDA 1995 may be overridden."
"It is the context of health and safety legislation that this exemption is most likely to be raised as a defence by employers. However, such defences will be carefully scrutinised. If employers are too easily allowed to side step the duties they owe to disabled employees by citing health and safety reasons, the whole purpose of the DDA 1995 would be defeated."
As it was conceded by the respondents that the duty to make reasonable adjustments arose, the tribunal must identify firstly, the provision, criterion or practice (PCP) placing him at a substantial disadvantage; secondly, the nature and extent of the substantial disadvantage; and thirdly, must assess the potential reasonable adjustments in that light. Counsel for the respondents conceded that as the duty to make reasonable adjustments is owed to the individual disabled person, the issue of comparators is not relevant in this part of the case.
The claimant was terminated under regulation 6(1)(a) of the Police Trainee Regulations because he was not likely to become an efficient or well-conducted constable on completion of his period of service as a police trainee. The alleged discriminatory act therefore was the termination of his services and it was related to his disability because the reason underlying it was in relation to his performance on the course. The disability-related reason for termination was the failure to reach the required standard in paperwork and paperwork associated with scenario based exercises. The comparator under Malcolm therefore is someone terminated for that reason where the failure to meet the standard is not related to a disability.
Chairman:
Date and place of hearing: 11-13 May 2009, 15 May 2009, 18-21 May 2009,
26-29 May 2009 and 3 June 2009, Belfast
Date decision recorded in register and issued to parties:
