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CARE3130

26 January 2000

IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND
_____

BETWEEN

CHIEF CONSTABLE OF THE ROYAL ULSTER CONSTABULARY and ASSISTANT CHIEF CONSTABLE AH

Appellants

and

SERGEANT A

Respondent

_____

CARSWELL LCJ

Introduction

This appeal is brought by way of case stated against a decision of the Fair Employment Tribunal, whereby the Tribunal held that the appellants had unlawfully discriminated against the respondent on the ground of religious belief in suspending him for a period from duty pending investigation of an allegation of driving a motor vehicle while under the influence of drink. The complaint was brought by originating application presented on 30 March 1995 and eventually was heard over a period of some fourteen days spread between 12 May and 14 October 1997. The decision of the Tribunal was not given until almost a year later, on 7 October 1998. The Tribunal determined only the issue of liability and directed that the case should be relisted for a hearing on remedy. By a requisition dated 17 November 1998 the appellants applied to the Tribunal to state and sign a case on a number of specified points of law. The Tribunal signed a case on 24 June 1999 on those points, with some amendments, and the appeal came on for hearing in this court on 24 and 25 November 1999. We were informed that in the meantime the Tribunal had proceeded to determine the issue of quantum, and that the respondent had applied for a case to be stated arising out of its determination.. The issue of quantum did not form any part of the proceedings before us and in view of our conclusions on liability it is not now relevant. We were not informed why the Tribunal saw fit to allow this expenditure of time and costs to be incurred on pursuing the issue of quantum when the appeal on liability was pending.

The Preliminary Issue on Time

Under the terms of RSC (NI) Order 62, rule 1(2)(b), where application has duly been made for a case to be stated for the opinion of this court, the case must be settled by the tribunal and sent to the applicant within six weeks commencing on the day the requisition was received. This manifestly did not happen, for the case was not signed by the Tribunal chairman until over seven months after receipt of the requisition. We were furnished with no information why such a length of time was allowed to elapse, which has to be regarded as inordinate by any standards. It was not suggested that any of the delay was due to any act or default on the part of the appellants, who asked the court to extend the time under RSC (NI) Order 3, rule 5. Mr Morgan QC, opposing the application on behalf of the respondent, submitted that the appellant ought to have applied for an order of mandamus when the statutory time had elapsed, but in the absence of any suggestion that a lower court is deliberately trying to avoid carrying out its duty we would not encourage the bringing of such applications. We cannot see that the delay was in any respect the fault of the appellants, and it would in our judgment have been wholly unjust to decline to extend the time in the circumstances of this case. We therefore extended the time and proceeded to hear the appeal.

The Factual Background

The facts found by the Tribunal have not been set out in the case stated in the way which we have said many times should be followed by lower courts in stating cases for the opinion of this court. We would refer yet again to the remarks of Murphy LJ in Emerson v Hearty [1946] NI 35 at 36, which appear still to be insufficiently well known, despite the remarks of this court in Hargy v Sherwood Medical Industries Ltd [1996] NIJB 5 at 7-8 and Baird v Cookstown District Council [1998] NI 88 at 101-2. The Tribunal has merely repeated almost verbatim the terms of its decision, itself a lengthy document in which the evidence and contentions are exhaustively discussed, and has ended up by producing a case of some 43 pages, from which it is not possible to isolate its findings of fact in any readily accessible form. We appreciate that it may in some cases be necessary to set out evidence in extenso where the issue is whether there was sufficient evidence to justify a finding, but much of the argument in the present case turned on other points. We express the hope that in future cases the Tribunal will set out its cases stated in the classic manner and leave the exposition and discussion of the evidence as far as possible in the exhibited decision where it belongs.

The relevant facts appear to us to be the following:

(i) The respondent, a Catholic, was at the material time a sergeant in the Royal Ulster Constabulary, a rank which he had held since 1991.

(ii) In April 1994 he was convicted at a disciplinary hearing, following suspension since October 1993, of four disciplinary charges, two of wilful and careless falsehood and two of disobedience to orders, for which he was fined £1500.00. Following the finding of the disciplinary board he was transferred to Mountpottinger station in May 1994, where he was placed under "very close supervision". His performance in Mountpottinger was described as "lacklustre" and his report writing as "poor".

(iii) On 10th September 1994 the respondent was involved in an alleged `drunk driving' incident. At approximately 11.00pm on that date the respondent was observed by Inspector W (who was off duty at the time and driving his private vehicle with his family on board) driving at 70-80mph in his private car in an erratic manner on the M1 motorway. At one stage the respondent drove up behind Inspector W forcing him on to the hard shoulder. Inspector W recognised the respondent who had previously been a member of his section in Newry and eventually, and not without danger to himself and his family, managed to stop the respondent. Superintendents F and WGA received information that he was unco-operative and abusive to Inspector W and wanted Inspector W to let him go before the police arrived, leaving Inspector W with no option but to arrest him. The respondent was then taken to Lurgan police station where he continued to be abusive to Inspector W and threatened him. He later apologised to Inspector W for his behaviour.

(iv) The lower of two breath specimens produced by the respondent was measured at 137 microgrammes of alcohol in 100 millilitres of breath, almost four times the prescribed limit of 35 microgrammes. The reading was equivalent to one of 313 milligrams of alcohol in 100 millilitres of blood, which represents an advanced state of drunkenness.

(v) The respondent was off work for several days and returned on 14 September 1994. On 19 September 1994 he was suspended from duty with immediate effect pending the determination of any proceedings which might be taken.

(vi) The decision to suspend the respondent was taken by the second appellant Assistant Chief Constable AH, in his capacity as head of the RUC's Complaints and Discipline Branch. When he was considering his decision he had recommendations from Superintendent WGA, the respondent's sub-divisional commander in Mountpottinger, and Superintendent F, the respondent's deputy divisional commander and Divisional Welfare Liaison Officer, each of whom recommended that the respondent be suspended.

(vii) The only comparable case relied upon by the respondent as showing difference of treatment was that of Sergeant DH, who was involved in an incident of alleged driving under the influence of drink on 22 December 1994.

(viii) DH, a Protestant, had been a sergeant since 1985. He had a clear disciplinary record and his performance and conduct were regarded by his superiors in Mountpottinger as being of a high standard.

(ix) The facts found by the Tribunal in respect of Sergeant DH's case (in paragraph 8.15 of the case) were as follows:

"8.15 On 22 December 1994, during the Christmas police anti-drink/driving campaign, Sergeant D H consumed alcohol in Mountpottinger Police Station before driving home. He was involved in a multiple injury road traffic accident at approximately 7.00pm on the Belfast to Larne Road. He had been driving erratically for some miles before colliding with three vehicles travelling in the opposite direction resulting in eight persons in addition to himself being injured, some with broken limbs. Sergeant DH was arrested at the scene on suspicion of driving whilst unfit. He was fully co-operative at the scene and in the police station. Due to a mouth injury he was not breathalysed but gave a blood sample which produced an alcohol reading just under two times over the legal limit. The MSX early referral document, forwarded to the Complaints and Discipline Department in relation to Sergeant D H, made it clear that Sergeant D H was arrested on suspicion of driving whilst unfit and that that was the reason for notification of the incident to the Complaints and Discipline Department."

(x) Sergeant DH was not suspended at once, but was subsequently suspended on 31 March 1995, after receipt of the second direction from the Director of Public Prosecutions for Northern Ireland.

(xi) The officers who recommended against immediate suspension and the officer who so decided were the same as in the respondent's case.

(xii) The procedure to be followed and the factors to be taken into consideration in deciding upon suspension were variously described in the documents referred to in the case stated:

(a) In paragraph 8.26 there is set out a statement from the Crown Solicitor to the respondent's solicitor in which it is said that the following matters were considered:

"(i) Gravity of the matter alleged and evidence to support same.

(ii) Recommendations of Members Divisional Commander or Head of department.

(iii) Whether the DPP has directed a prosecution or is likely to do so.

(iv) If it is necessary to remove the member from duty to prevent any contact with the complainant or contact with the public as a force member where such would create problems or difficulties.

It is emphasised that decisions to suspend are not taken lightly and that each case is considered on its own particular facts.

Whilst the welfare of the individual officer and his family is always a consideration, it is the gravity of the alleged complaint and the evidence to support it that are the primary factors in the course of the action taken."

(b) In paragraph 8.27 there is set out a quotation from a letter of 8 August 1996 from the Crown Solicitor to the respondent's solicitor, to the effect that "the procedure adopted in this case leading to the decision to suspend" was –

"1. In any case where an officer is alleged to have committed a criminal offence, or a serious discipline offence, consideration is given as to suspension.

2. ACC `G' Department has the Chief Constable's delegated authority for the final decision as to suspension. In contentious cases he may refer the case to the Deputy Chief Constable (Support) for guidance.

3. The decision to suspend can be made at any stage of the disciplinary/criminal process, eg when new evidence comes to light during the course of an investigation or when directions from the Director of Public Prosecutions are received.

4. Before a decision is made, ACC `G' will invariably seek the views of the officer's Divisional Commander through the Deputy Divisional Commander who has specific responsibility for discipline.

5. On arriving at a decision, ACC `G' will arrange a criteria [sic] including the following:-

(a) Seriousness of the allegations - any allegation of dishonesty is for example, viewed as particularly serious in relation to a police officer's role.

(b) Evidence available or likely to become available to support the allegations.

(c) Likelihood of contact between the officer and the complainant/general public if the officer remains in post.

(d) Possible affect [sic] of the allegations if proven on public confidence/Force morale.

(e) Potential punishment - the greater the likelihood of dismissal, the stronger the case for suspension.

6. The criteria are considered with the Force's best interests and the officer's best interest to the fore."

(c) In paragraph 8.28 there is set out an extract from a document entitled "Disciplining and Sentencing Policy for Police Officers Convicted of Drink Driving Offence":

"AGGRAVATING CIRCUMSTANCES

Officers should also be aware that the presence of `aggravating circumstances' surrounding the original offence will increase the likelihood of the more serious punishments (ie dismissal, requirement to resign or reduction in rank) being imposed.

Examples of `aggravating circumstances' may include instances where the officer:

(a) has a previous discipline conviction recorded on his personal file for a drink-driving or related offence;

(b) has a high breath/blood or urine reading;

(c) has been identified as the cause of a road traffic accident;

(d) has been convicted of failing to stop, etc, or reckless driving in connection with any road traffic accident;

(e) has behaved unacceptably towards the arresting officer(s), processing officer or FMO while in custody for the original offence, or towards any officer or member of the public during the incident;

(f) is on duty;

(g) is in possession of a firearm.

It should be understood that the above list is not intended to be a definitive list of aggravating circumstances - each case will be viewed on its merits."

(xiii) Superintendent WGA made a written recommendation dated 15 September 1994 in relation to the respondent. He reviewed the details of the offence, the respondent's disciplinary record and his performance and conduct in Mountpottinger. He concluded that he had "no option but to recommend his suspension from duty", giving as his reasons "his previous record and the fact that his reading was extremely high together with his lack lustre performance since arriving in Mountpottinger."

(xiv) Superintendent F made the following recommendation in relation to the respondent:

"I recommend that the Sergeant be suspended from duty pending disposal of the alleged offence in this case."

(xv) ACC AH decided on 19 September 1994 that the respondent should be suspended from duty until the DPP's directions were known, at which time he said he would reconsider the matter of suspension. He did not express his reasons in writing.

(xvi) In paragraph 8.19 of the case stated the Tribunal set out details of Superintendent WGA's recommendation in relation to Sergeant DH, as follows:

"8.19 In relation to Sergeant D H, Superintendent WGA's recommendation contained six paragraphs. The recommendation did not contain a detailed or comprehensive account of Sergeant D H's incident but the first paragraph did refer to an attached report `outlining the fact that Sergeant D H was involved in a road traffic accident and later processed for driving whilst unfit'.

The recommendation did not refer to the fact that Sergeant D H had consumed alcohol in Mountpottinger Police Station before leaving or that he had been driving erratically for five miles before colliding with the three vehicles travelling in the opposite direction.

The second paragraph referred to Sergeant D H's performance and conduct and Superintendent WGA's opinion of him. It described Sergeant D H as a very fine officer in every respect who was qualified for promotion to the rank of Inspector and who was studying for a degree with the Open University. It did not refer to the fact that Sergeant D H had applied unsuccessfully for Inspector posts on three or four occasions. It also contained the following:-

`I can say with utmost confidence that he is a very responsible type of person and that the lapse evidenced on this occasion is very much foreign to his character.'

The third paragraph contained details of welfare matter relating to Sergeant D H and his strength of character. It stated:-

`it is also worth mentioning that he has shown exceptional qualities and strength of character during recent years, when following his marriage break-up, he fully addressed the demands of his career whilst at the same time attending to his responsibilities as a parent by running a home and caring for his children single handedly.'

The fourth paragraph contained details of the effect the incident had on Sergeant D H personally. It stated:

`he is personally devastated at finding himself in this position and is bravely facing up to the fact that he is in very serious difficulty but prepared to fully accept the consequences of his actions'.

It also stated that he had fully co-operated with the local police at the scene of the accident and later at Larne station.

The fifth paragraph contained details of Sergeant D H's alcohol reading which was just under two times over the legal limit. The recommendation also stated that Superintendent WGA hoped that that would not be a factor which would put Sergeant D H's case into a category where suspension was seen as an essential step.

The sixth paragraph contained Superintendent WGA's recommendation as follows:-

`I would therefore respectfully recommend that the member is allowed to work pending the hearing of his case. Suspending him from duty would only exacerbate the situation facing a good police officer who appears to have ruined his career by one act of irresponsibility.'

(xvii) Superintendent F's recommendation in relation to Sergeant DH was in the following terms:

"I would ask you not to suspend Sergeant D H from duty pending disposal of the criminal aspect.

The sergeant does not take alcohol on a regular basis and it is ironic that he is the one person who would dissuade others from doing what he has in fact done himself on this occasion. There is no chance or possibility that the offence will re-occur.

Sergeant D H for many years has, by himself reared two boys and one girl when his wife left the family home. He was without fault in that matter and on his side there was not, and there has not been, a third party involvement. It is not easy playing two roles but this unfortunate man has performed magnificently both as a father and a member of the Force in a very difficult police environment. He was, for a lengthy period, in charge of the Short Strand Policing Unit where danger was a daily factor in his work.

I believe that, in all the circumstances, the Force and the community owes him some support and this can be achieved by allowing him to work as recommend. In the final analysis he is likely to pay heavily for his indiscretion."

(xviii) ACC AH decided that Sergeant DH should not be suspended from duty until the DPP's directions were known, at which time he would reconsider the matter of suspension. He did not set out his reasons in writing. On 31 March 1995, after the second DPP direction had been issued in respect of Sergeant DH, he suspended him from duty.

The Tribunal, having held that the respondent was treated less favourably than Sergeant DH, examined in minute detail the actions taken and explanations given by each of these officers relating to their recommendations and decisions respectively and reached certain conclusions about them which were the subject of challenge on behalf of the appellants. We shall return to its findings in relation to each at a later stage in this judgment.

The Statutory Provisions

The basic provision upon which the respondent relied was section 16(2) of the Fair Employment (Northern Ireland) Act 1976, as amended by the Act of 1989, the material part of which reads as follows:

"(2) A person discriminates against another person on the grounds of religious belief or political opinion in any circumstances relevant for the purposes of this Act if –

(a) on either of those grounds he treats that other less favourably than he treats or would treat other persons ?"

The respondent then relied on section 17, which makes the following provision:

"17. It shall be unlawful for an employer to discriminate against a person, in relation to employment in Northern Ireland –

* * *

(b) where that person is employed by him –

* * *

(ii) in the way in which he affords him access to benefits or by refusing or deliberately omitting to afford him access to them, or

* * *

(iv) by subjecting him to any other detriment."

Mr Treacy on behalf of the respondent submitted that in treating the respondent, a Catholic, differently from Sergeant DH, a Protestant, over suspension from duty the appellants had discriminated against him in one of the respects set out in section 17. Mr Weatherup QC on behalf of the appellants pointed to the terms of section 16(4A):

"A comparison of the cases of persons of different religious belief or political opinion under subsection (2) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."

He contended that the Tribunal had failed to apply this provision properly and that it had not been established that the appellants had treated the respondent less favourably than they treated or would have treated other persons of a different religion.

The Tribunal's Conclusions – Less Favourable Treatment

The Tribunal correctly appreciated (paragraph 12 of the case) that the first issue for it to decide was whether the appellants treated the respondent less favourably than they treated or would have treated other persons, bearing in mind the terms of section 16(4A) of the 1976 Act. It complained in paragraph 13 that "the absence of a written policy or procedure containing clear and unequivocal criteria or guidelines for suspension" made the case more difficult to determine. It went on to make some critical observations about the officers concerned with the recommendations and decisions and their knowledge of and resort to the procedures set out in paragraphs 8.26 to 8.28 of the case, then expressed its conclusions on this issue in paragraphs 14 and 15:

"14. The Tribunal, doing the best it could in the above circumstances, concluded that the respondent and Sergeant D H were both involved in incidents of `drunken driving' with aggravating features. While the dates of the incidents, the aggravating features surrounding the incidents, the personal circumstances record and performance of each Sergeant were not the same, the relevant circumstances were that each Sergeant was involved in an incident of `drunken driving' as a result of which each Sergeant was reported to the Complaints and Discipline Department and each Sergeant was considered for suspension by:-

(i) Superintendent WGA who claimed to have taken the same type of information into account for each Sergeant;

(ii) Superintendent F who claimed to have applied the same criterion to each Sergeant;

(iii) the second respondent who claimed to have taken the matters at paragraph 8.26 above into account for each Sergeant.

The Tribunal was therefore satisfied that the relevant circumstances in each case were not materially different within the meaning of Section 16(4A) of the Fair Employment (Northern Ireland) Act 1976. The Tribunal was also satisfied that as the respondent, a Catholic, was suspended nine days after his incident and before the DPP direction, while Sergeant D H, a Protestant, was not suspended until approximately three months after his incident and until after the second DPP direction was issued, the respondent was treated less favourably than Sergeant D H in that regard.

15. In those circumstances, although the Tribunal was satisfied that the burden of proof remained on the respondent and did not shift to the appellants, the Tribunal as a matter of common sense and law looked to the appellants for an explanation and in particular to Superintendents WGA and F and the second appellant because only they could explain their recommendations and decisions. Their explanation was essentially that both incidents happened at separate times and that each case was considered separately on its own particular facts and merits and without regard to religion. The Tribunal does not accept that it left those matters out of account. However as Superintendents WGA and F and the second appellant all expanded on that explanation in some detail both during direct examination and cross-examination and claimed to have applied their own individual criteria to both cases, the Tribunal concentrated on the detailed explanation bearing in mind the criteria they claimed to have applied. The Tribunal has therefore amended question 10 of the requisition."

It may be seen from the terms of paragraph 14 of the case that the Tribunal restricted the relevant circumstances of the cases of the two sergeants, the respondent and DH, to the alleged drunken driving and the consideration of the issue of suspension in each case by the same officers. Although it adverted in that paragraph to several other matters which it recognised were not the same in the two cases, the aggravating features surrounding the incidents and the personal circumstances, record and performance of each sergeant, it then left them out of account and so disregarded them in determining the ambit of the relevant circumstances.

As Lord Browne-Wilkinson remarked in Strathclyde Regional Council v Zafar [1998] 2 All ER 953 at 956 in construing the comparable terms of the racial discrimination legislation, although an answer has to be given at the end of the day to a single question, whether the complainant has been less favourably treated than others on racial grounds, there are on analysis two parts to the question, (a) less favourable treatment and (b) racial grounds. It must follow that the two parts of the question have to be kept distinct. Unless the first part is answered in favour of the complainant, the second part, concerning (in the present case) religious grounds, does not become material. Nor does the special rule of proof enunciated in Chattopadhyay v Headmaster of Holloway School [1982] ICR 132, to which the Tribunal turned in paragraph 15 of the case, come into play until that stage is passed.

In our opinion the circumstances which are to be regarded as relevant for the purposes of construction of section 16(4A) are those upon which a reasonable person would place some weight in determining how to treat another. The Tribunal has not stated in paragraph 14 of the case what criterion it has adopted of relevant circumstances for the purpose of making the comparison. It is apparent, however, that it cannot have been the one which we have formulated or any test of a similar nature. If it had, it would in our view have been bound to regard as relevant circumstances those features which it avowedly left out of account, although acknowledging that they were not the same, viz the aggravating features surrounding the incidents and the personal circumstances, record and performance of each sergeant. These features seem to us to be essential circumstances for any senior officer deciding upon suspension to take into account. To limit the relevant circumstances to the factors upon which the Tribunal based its consideration of the cases is artificial in the extreme and bears no relation to the proper mode of comparison of them. In failing to have regard to these features as relevant circumstances, the Tribunal has in our view fallen into error. When one examines these features and takes them into account as relevant circumstances, it is in our opinion entirely clear that there were substantial differences between the two cases. It is in our view impossible to say that the relevant circumstances of each were the same or not materially different, and we do not consider that any reasonable tribunal applying the proper criterion could reach that conclusion.

To make out a case under section 16(2)(a) of the 1976 Act a complainant has to show that the respondent has treated him "less favourably than he treats or would treat other persons". In the absence of evidence of a regular way in which other persons in the same circumstances are treated, he has to prove that at least one other person in comparable circumstances has been treated differently, which may tend to show how others would have been treated if they and not the complainant had been concerned. The relevant circumstances of DH's case could not in our opinion be regarded as comparable, for the reasons which we have set out. We are therefore satisfied that in using DH's case as a comparison the Tribunal fell into error and that in the absence of any other comparators its decision cannot stand.

The first question posed in the case stated was:

"Was the Tribunal correct in law in holding that the relevant circumstances in each case relating to the respondent and Sergeant DH the comparator were not `materially different' within the meaning of section 16(4A) of the Fair Employment (Northern Ireland) Act 1976?"

We consider that a second question on this issue should be posed:

"Was the Tribunal correct in law in holding that the appellants treated the respondent less favourably than they treated or would treat other persons?"

We answer both these questions in the negative.

The Senior Officers' Explanations

The conclusions which we have reached on the issue of less favourable treatment are sufficient to dispose of the appeal in the appellants' favour. A substantial amount of argument was, however, addressed to us on the remaining part of the appeal, concerning the Tribunal's approach to and conclusions from the evidence given on behalf of the appellants, and we consider that we should express our conclusions on this. The Tribunal examined the evidence of Superintendent WGA, Superintendent F and ACC AH in minute detail and drew a number of inferences from it, which were sharply challenged by the appellants' counsel. We shall not attempt to set out in extenso the evidence or the Tribunal's inferences or conclusions, but shall confine ourselves to the salient points.

Before we turn to the evidence we wish to make a number of observations about the way in which tribunals should approach their task of evaluating evidence in the present type of case and how an appellate court should treat their conclusions.

1. Where no apt comparison with the case under consideration is available it is wrong to equate treatment which the tribunal finds to be unsatisfactory or even harsh with unlawfully discriminatory treatment in the absence of some evidence pointing towards the conclusion that a person of a different religion would have been treated differently: see Marks & Spencer plc v Martins (1997, unreported).

2. If another employee of a different religion has been treated more favourably than he should have been, in the same or similar circumstances, the possibility of unlawful discrimination is raised and the Tribunal is entitled to look to the employer for an explanation. It is right for the tribunal to look critically at that explanation, bearing in mind the difficulty of finding evidence of actual discrimination and the need in many cases to resort to inference. But it should keep its mind open to the possibility that such unduly favourable treatment may be due to reasons other than religious discrimination, especially where the complainant has been treated in accordance with his deserts.

3. Discrepancies in evidence, weakness in procedures, poor record-keeping, failure to follow established administrative processes or unsatisfactory explanations from an employer may all constitute material from which an inference of religious discrimination may legitimately be drawn. But tribunals should be on their guard against a tendency to assume that every such matter points toward a conclusion of religious discrimination, especially where other evidence shows that such a conclusion is improbable on the facts.

4. The Court of Appeal, which is not conducting a rehearing as on an appeal, is confined to considering questions of law arising from the case.

5. A tribunal is entitled to draw its own inferences and reach its own conclusions, and however profoundly the appellate court may disagree with its view of the facts it will not upset its conclusions unless --

(a) there is no or no sufficient evidence to found them, which may occur when the inference or conclusion is based not on any facts but on speculation by the tribunal (Fire Brigades Union v Fraser [1998] IRLR 697 at 699, per Lord Sutherland); or

(b) the primary facts do not justify the inference or conclusion drawn but lead irresistibly to the opposite conclusion, so that the conclusion reached may be regarded as perverse: Edwards (Inspector of Taxes) v Bairstow [1956] AC 14, per Viscount Simonds at page 29 and Lord Radcliffe at page 36.

(i) Superintendent WGA's Evidence

The Tribunal examined the content of Superintendent WGA's reports on each of the incidents. It did not find fault with his summary of the factors which led to his recommendation of immediate suspension of the respondent. It did, however, criticise his handling of the recommendation in relation to DH three months later. He did not himself set out the background details about the incident in which DH was concerned, but attached a report of the accident to his recommendation. The Tribunal was critical of that report because it did not make mention of (a) the fact that DH had consumed alcohol in Mountpottinger station before the accident (b) the fact that he had driven erratically for approximately five miles before his accident. After discussing these points at length the Tribunal concluded at paragraph 16.11 of the case that his "explanation for that failure" was "less than credible or satisfactory" and that "it could not accept Superintendent WGA's explanation for treating the respondent less favourably than Sergeant DH as satisfactory or consistent with innocence." In so concluding it rejected Superintendent WGA's evidence that he had set out in relation to each officer as much relevant background information, whether good or bad, as possible and given his professional opinion or judgment on suspension.

There are, however, some features about the Tribunal's reasoning which we do not find satisfactory and which affect the validity of its conclusions:

(a) We are unable to understand why the Tribunal placed such emphasis on the fact that DH had been drinking alcohol in the station before setting off in his car. There is nothing to indicate that this was clandestine or anything other than participation in a pre-Christmas social event. DH was, of course, at fault in driving his vehicle after drinking alcohol, but the location where he drank does not appear to have any relevance in the circumstances as an aggravating factor.

(b) The Tribunal rejected WGA's evidence that he did not know of DH's erratic driving when he made his recommendation because he did not at the time know of the statement to that effect from a lorry driver who observed him. The Tribunal stated in paragraph 16.8 of the case that it "found it difficult to accept Superintendent WGA's evidence" on this point. It had not in our view any grounds to reject that evidence, except its own feeling that he should have heard of the statement earlier, which seems to us to savour of mere speculation.

(ii) Superintendent F's Evidence

Superintendent F stated in evidence that the criterion which he adopted in making his recommendations relating to suspension was whether the officer would, if convicted of the alleged offence, be likely to be dismissed from the force. He did not normally set out detailed written reasons for his recommendations, so that his recommendation in respect of the respondent followed his normal format. It was in respect of DH that he departed from that format, his reason being that he considered him to be an outstanding officer who deserved his support.

The Tribunal regarded F's evidence as unsatisfactory in a number of respects, particularly in respect of his assertion that "there was nothing in the evidence before him to suggest that alcohol was a factor in the accident" (paragraph 17.7 of the case). It was also critical of F's evidence about his recommendation that DH "be suspended from duty pending disposal of the alleged offence in this case". He stated that the term "disposal" was "police jargon" for the period until the DPP's direction was given. The Tribunal concluded that he realised that his recommendation "was indefensible when compared with his recommendation in relation to the respondent". It examined at length his evidence about the possible causes of DH's accident other than alcohol and concluded (paragraph 17.14 of the case) that "Superintendent F did not provide a sufficient explanation consistent with innocence for his less favourable treatment of the respondent as compared to Sergeant DH".

The Tribunal was entitled in finding and weighing the facts to be critical of the evidence of Superintendent F in the respects to which we have referred. It was entitled as the body charged with reaching factual conclusions to reject his explanations of these matters about which issues were raised, though we can see little or no ground for its refusal to believe F when he said that he was unaware that DH had consumed alcohol in the station. It appears to us, however, that in its rejection of the correctness of F's explanation the Tribunal jumped to the conclusion that there must be an element of religious discrimination behind his recommendations. His recommendation in relation to the respondent was fully justified, and the Tribunal itself appears to accept this in paragraph 18.12 of the case. It is the recommendation in respect of DH that was out of line. It is a tenable conclusion that DH was treated more favourably than the circumstances justified, but it does not necessarily follow that that was because of religious discrimination. The Tribunal has at no point posed for itself the essential question, whether a Protestant officer in the respondent's shoes would have been treated differently. Nor has it inquired whether DH's more favourable treatment – if one assumes for the purposes of argument that the two cases were comparable -- may have been due to some other factor than religious discrimination.

(iii) ACC AH's Evidence

AH stated in evidence that he did not merely "rubber-stamp" the recommendations, but considered for himself whether or not suspension was appropriate, by reference to the criteria which he described in evidence. He regarded the aggravating features in the respondent's case as making his offences very grave. He also said that while he read and considered the recommendations made by Superintendents WGA and F, he would have made the same decision even if their recommendations had been different. In respect of DH, he was aware of the salient facts of the incident, and took the view that it was a case for suspension. He decided, however, not to suspend him, for the reasons which are recorded in paragraph 18.5 of the case. Once he had had an opportunity to consider the DPP's directions of 31 March 1995 he decided that the gravity of the offence and the evidence to prove it were such that suspension should be imposed forthwith.

The Tribunal stated in paragraph 18.6 that it –

"did not find the second appellant's explanation for waiting until he had seen the DPP's interpretation of the evidence in relation to the cause of the accident before suspending Sergeant DH credible or satisfactory".

Again there are features about the Tribunal's reasoning and its inferences from the primary facts which we find unsatisfactory and which affect the validity of its conclusions:

(a) It was critical of AH's evidence about his belief that there was some problem about the efficiency of the blood analysis and his wish to see the DPP's direction on the interpretation of the evidence in relation to the causes of the accident and the strength of the blood analysis. It rejected AH's evidence as being "less than credible or satisfactory" because he was unable to tell the Tribunal what the problem was.

(b) It stated in paragraph 18.10 that it found it "less than credible and most unsatisfactory" that AH would delay a suspension on the ground that the accident may have been caused by a vehicle defect without checking the position. A tribunal is entitled to be sceptical of evidence adduced or explanations given by witnesses, but in this instance it had very little substance upon which to ground its rejection of AH's evidence. In paragraph 18.10 it appears to accept that the results of the examination of DH's car had not been sent to AH. It then proceeds to express, not scepticism or criticism of his proceeding to decide on the suspension without seeing the results, but rejection of his evidence as untruthful, because it supposes that he was unlikely if acting in good faith to proceed before seeing the results. Again this savours of speculation which is not founded on facts.

(c) The Tribunal refers to the fact that the first direction from the DPP, which directed that DH be prosecuted for "drunken driving", was received in the ACC's department on 21 March 1995. That direction indicated that a second direction would follow in respect of two offences of causing grievous bodily harm by reckless driving. That second direction was received on 30 March 1995, but AH's evidence was that he was not shown either direction until 31 March 1995, when he received them together. The Tribunal rejected AH's evidence as untruthful. It appears to have been put to AH that his action in suspending DH on 31 March 1995 was prompted by the fact that on 29 March the respondent initiated an internal grievance procedure. AH adamantly denied that he had been informed of this by 31 March and said that it was brought to his attention by a memorandum dated 4 April. The Tribunal did not quite go so far as to hold that AH was lying in this, but stated (paragraph 18.15 of the case) that it "could not rule out" that it may have prompted AH to reconsider DH's suspension. Although it did not reject AH's denial, it accordingly allowed the allegation to influence its judgment. The Tribunal's finding about the date on which AH first saw the first direction from the DPP appears in paragraph 18.14 of the case:

"The Tribunal was not impressed with the second appellant's evidence in relation to the date upon which he was first shown the first DPP direction. The Tribunal considered it unlikely that a decision would have been taken, presumably by a less senior officer not to draw the first direction to the second appellant's attention but to await the second direction particularly in view of its contents. The Tribunal concluded that it was more likely that the second appellant had been made aware of the first DPP direction on or about 21 March 1995 but decided to wait for the second DPP direction."

This conclusion is in our view based on pure speculation.

(d) It is a necessary part of the Tribunal's reasoning that ACC AH, himself a Catholic, discriminated against the respondent because he is a Catholic. The Tribunal states at paragraph 8.24 of the case:

"The second appellant was a Catholic. Although he did not know the respondent personally, he knew that the respondent was a Catholic. The Tribunal was satisfied that he perceived Sergeant D H as a Protestant. He had known the respondent's father for thirty years. He had served with the respondent's father and had met him regularly at various events throughout those years. He had the highest regard for the respondent's father and considered him to be a friend. He was also adamant that religion played no part in his decisions."

The Tribunal saw fit to reject that denial and to accept that a senior officer of one religious faith was biased against a junior officer on the ground that he shared adherence to that faith. This is on its face so extraordinary a proposition that one must look for some evidence to support it or some compelling reason why it might be accepted. One finds only the remark in paragraph 11 of the case that –

"The Tribunal was further aware that although co-religionists may be less likely to discriminate against each other on the ground of religion, such discrimination could occur."

This reasoning in our opinion falls far short of a sufficient ground for acceptance of such a remarkably unlikely conclusion.

Discovery of Documents

The Tribunal placed some weight upon the fact that two documents in relation to the grievance procedure were not discovered to the respondent's advisers until during the course of the hearing. After examining the content of the documents it reached the conclusion (paragraph 21 of the case):

"The contents of those memos together with the failure to make them available in September 1996 suggested to the Tribunal that a conscious decision had been taken by the appellants to conceal those documents because they considered that they would not help their defence."

It was submitted on behalf of the appellant that there were no grounds for such a serious accusation and that this conclusion of the Tribunal, upon which it placed weight in reaching its final conclusion in paragraph 22, was based on an incorrect understanding and unsustainable.

The first document was a memorandum dated 4 April 1995 from Chief Inspector McL to ACC AH, which read:

"I refer to the attached report of EOU dated 29 March 1995.

EOU require the officer directing the suspension to supply a short report outlining the reason for suspending Sergeant M (the respondent). Reasons could include seriousness of the allegation, recommendations from Division and any previous record.

The incident involving Sergeant D H did not happen till 22 December 1994 and would therefore not have been a factor in any way. He was not suspended until 31 March 1995 since the recommendations from Division were different than for Sergeant M (the respondent) and the member has a clear disciplinary record.

A copy of EO 10/91 is attached."

In relation to this document the Tribunal expressed the following view (paragraph 21.9 of the case):

"In relation to the first memo, the Tribunal was concerned that Chief Inspector McL would be suggesting the type of reasons which the second appellant could give for suspending the respondent rather than just asking him for his reasons. The Tribunal was also concerned that Chief Inspector McL would at the investigation stage of the respondent's internal grievance be informing the second appellant that the incident involving Sergeant D H would not have been a factor, rather than asking him if it was a factor. The contents of the memo caused the Tribunal to question whether the second appellant took the matters he claimed to have taken into account at the time he made the decisions on suspension or whether the said matters were formulated subsequent to the decisions being made."

We do not consider that there is any foundation for these suppositions. It seems clear to us that this document is part of a briefing from Inspector McL to ACC AH concerning the grievance procedure which the respondent had initiated. It appears to us quite innocuous and the suggestions made by the Tribunal verge upon the fanciful. There is not in our opinion any sustainable ground for the Tribunal's conclusions in paragraph 21.9 of the case.

The second document was a brief undated handwritten note, signed "RKCIT" and directed to Inspector H, which read:

"Bobby

To see – as discussed.

In my opinion it would be best not to give Sergeant M [the respondent] any reports. You may decide otherwise."

In paragraph 21.9 the Tribunal stated that it was "concerned with the contents of the second memo" and then expressed the suggestion about concealment of the documents to which we have referred.

There was no indication of the circumstances in which this document was written, who wrote it or what (if any) connection it had with the matters the subject of the present complaint. It seems to us to provide altogether inadequate grounds for the Tribunal to reach conclusions about deliberate concealment of documents. Recognising this, Mr Morgan QC for the respondent suggested in argument that the Tribunal had not relied on the second document, but it is clear from the terms of paragraphs 21.9 and 22(4) of the case that it did rely on the document, with adverse effect upon the appellants' case.

One other matter in relation to discovery requires to be mentioned. In paragraph 18.14 of the case the Tribunal appears to draw an inference adverse to the appellants from the fact that they initially sought to withhold the DPP's directions on the ground of public interest immunity. There is nothing in the material before us on which such an adverse inference could properly be based. A public authority may well seek initially to withhold documents from production on the ground of public interest immunity and the appropriate minister may decide that they should be produced or the court may order production. That is often a question of fine judgment, and there may well be quite a reasonable case on public grounds not to produce the documents. It would generally be quite unjustified to conclude from the fact that the authority had earlier raised the issue of immunity that it was making an improper attempt to conceal something which it knows to be adverse to its case. In drawing such an inference the Tribunal was in error.

The Tribunal's Conclusions

The Tribunal set out its conclusions in paragraph 22 of the case (which is identical with paragraph 90 of its decision) in the following terms:

"In determining whether the respondent had proved, on the balance of probabilities, that the appellants had unlawfully discriminated against him on the ground of religious belief, the Tribunal considered and balanced the following:

(1) The fact that the respondent, a Catholic, established that he was treated less favourably than Sergeant DH, a Protestant, in similar circumstances.

(2) The failure of the appellants to provide a sufficient explanation consistent with innocence for that less favourable treatment.

(3) The failure of the appellants to adduce evidence, having specifically raised the matter, to challenge the respondent's denial that another Protestant Officer had been treated in the same way as he had been treated.

(4) The failure of the appellants to make discovery of all relevant documents in relation to the applicant's internal grievance in September 1996 and the contents of the first memo in particular.

(5) The failure of the respondent to adduce evidence in relation to the other comparators referred to in his originating application and in his replies to particulars.

(6) The fact that the second appellant was also a Catholic and had known the respondent's father for thirty years as a friend and had the highest regard for him.

(7) The fact that Superintendent WGA knew the respondent's father in a professional capacity and had had a very good relationship with him.

(8) The fact that Superintendent F had known the respondent's father for over thirty years and although he had never served with him believed that he had been held in very high regard in the police service.

Having balanced those matters, the Tribunal concluded that points (1) - (4) outweighed points (5) - (8). In those circumstances the Tribunal further concluded that, notwithstanding the evidence of Superintendents F and WGA and of the second appellant that religion played no part in their recommendations and decisions, it was appropriate to infer that the appellant had treated the respondent less favourably on the ground of religious belief than they had treated Sergeant D H. The Tribunal therefore concluded that the respondent has proved, on balance, that he was unlawfully discriminated by the appellants on the ground of religious belief."

It is to be observed, first, that the Tribunal was incorrect in law in point (1), for the reasons which we have set out. Irrespective of that, however, it is not a factor to be set in the balance against other factors tending towards the opposite conclusion, but is, if established, a necessary precondition for proceeding to the assessment of the evidence about the grounds for the complainant's less favourable treatment. Secondly, ground (3) in effect places the burden of proof on the appellants, which is erroneous, and therefore this factor should not have been taken into account. Thirdly, we do not consider that ground (4), relating to the failure to discover the memoranda, has any sustainable foundation. That leaves only ground (2), the "failure of the appellants to produce a sufficient explanation consistent with innocence". For the reasons which we have set out, the reasoning and conclusions of the Tribunal on this ground are seriously flawed in a number of respects. It is to be observed, moreover, that the Tribunal has devoted much of its attention to the evidence of the officers who made recommendations rather than that of the ACC who made the actual decision to suspend.

The final conclusion of the Tribunal in paragraph 22 of the case, which is founded on the balancing of factors and the preference of the first four over the last four, is accordingly quite wrongly based and could not stand, even if the Tribunal had been correct on the issue of less favourable treatment. In our opinion the facts lead irresistibly to the opposite conclusion and no reasonable tribunal directing itself properly on the law could find on these facts in favour of the respondent.

The Questions Posed in the Case

We have already answered two questions of law relating to less favourable treatment. We decline to answer the remaining questions posed in the case in their present form. We propose to reframe to some extent those submitted to us by counsel for the appellants. We consider that the following questions will properly cover the remaining part of the case:

3. Was the Tribunal correct in law in its application of the burden of proof?

4. If the appellants treated the respondent less favourably than they would have treated other persons, was the Tribunal entitled on the facts proved or admitted to hold that he was so treated on the grounds of his religious belief?

We answer each of these questions in the negative.

The appeal will accordingly be allowed and the decision of the Tribunal reversed.

IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND

_____

BETWEEN

CHIEF CONSTABLE OF THE ROYAL ULSTER CONSTABULARY and ASSISTANT CHIEF CONSTABLE AH

Appellants

and

SERGEANT A

Respondent

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JUDGMENT

OF

CARSWELL LCJ

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