1 vs Chief Constable of the Police,31,29,Assistant Chief Constable 16,Chief Superintendent 27
| Jurisdiction | Northern Ireland |
| Judgment Date | 16 August 2022 |
| Docket Number | 00023/17fet |
| Respondent | Chief Constable of the Police,31,29,Assistant Chief Constable 16,Chief Superintendent 27 |
| Court | Fair Employment Tribunal (NI) |
THE FAIR EMPLOYMENT TRIBUNAL
CASE REFS: 23/17FET
43/17FET
54/17FET
71/17FET
7290/17IT
CLAIMANT: 1.
RESPONDENTS: 1. Chief Constable of the Police Service of Northern Ireland
2. 31.
3. 29.
4. Assistant Chief Constable 16.
5. Chief Superintendent 27.
JUDGMENT
The unanimous judgment of the tribunal is that all claims of unlawful discrimination on the grounds of religious belief and victimisation are dismissed.
CONSTITUTION OF TRIBUNAL
Employment Judge: Employment Judge Hamill
Members: Mrs D Adams
Mr M McKeown
APPEARANCES:
The claimant was self-represented.
The respondents were represented by Mr Ian Skelt, QC and Ms Rachel Best of counsel, instructed by the Crown Solicitor’s Office.
Dates of Hearing: 27-30 April, 4,5,7,10,11 and 14 May 2021
- The claimant brings claims for unlawful discrimination on the grounds of religion and victimisation for having done protected acts, namely the issuing of proceedings against the first-named respondent and others in 2017 and previously and raising grievances in 2017. The claimant resigned in September 2017 in response to the alleged discriminatory acts and therefore claims discriminatory constructive dismissal
- These proceedings have been extensively case managed since 2017. Over this period multiple individuals were joined as respondents and have subsequently been removed during case management as the first named respondent has accepted any potential liability in respect of any other named respondent. In addition to the first-named respondent there are four other named respondents. This hearing considered liability only, per previous directions given during the case management process
ANONYMISATION
- An application was made at the conclusion of the hearing of this case for the anonymisation of the witnesses and individually named respondents herein. The application was made by counsel acting for the respondents. It is opposed by the claimant
- The application is that it is appropriate to anonymise named individuals due to the risk to those individuals considering the prevailing security situation in Northern Ireland.
- Rule 44 of the Industrial Tribunals and Fair Employment Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2020 provides:-
Privacy and Restrictions on Disclosure
44.-(1) A tribunal may at any stage of the proceedings on its own initiation or on application, make an Order with a view to preventing or restricting the public disclosure of any aspect of those proceedings. Such an Order may be made in any of the following circumstances –
(a) where the tribunal considers it necessary in the interests of justice;
(b) in order to protect the Convention rights of any person
…
(d) in relation to proceedings before the Fair Employment tribunal, where the tribunal considers that-
(i) the disclosure of any evidence given would be against the interests of National Security, public safety or public order;
(ii) the disclosure of evidence given by any person (“P”) would create a substantial risk that “P” or another individual would be subject to physical attack or sectarian harassment.
(2) In considering whether to make an Order under this Rule, the tribunal shall give full weight to the principle of open justice and the Convention right to freedom of expression.
(3) Such Orders may include –
…
(b) an Order that the identities of specified parties, witnesses or other persons referred to the proceedings should not be disclosed to the public, by the use of anonymisation or otherwise, whether in the course of any hearing or in its listing or in documents entered on the register or otherwise forming part of the public record.
(c) An Order for measures preventing witnesses at a public hearing being identifiable by members of the public.”
- In support of this application the respondent also refers to Section 6 of the Human Rights Act. This mandates a court or a tribunal to consider and take steps to protect human rights where appropriate. Anonymity can be granted to a party or a witness to secure rights under the ECHR Articles 2, 3 and 8, summarily the rights to life, to the prevention of inhuman or degrading treatment and to family and private life.
- The issue for this tribunal is whether there is a real and immediate risk to the parties and witnesses in this case. To quote the judgment of Weatherup J in re W’s application [2004] NIQB67:-
“… a real risk is one that is objectively verified and an immediate risk is one that is present and continuing.”
- The named parties and the witnesses herein are or were serving officers or employees of the PSNI.
- The respondent has provided evidence in support of this application, which is not contested by the claimant, to show that there is currently a verified and immediate risk to the health and safety of these individuals because of the current security situation in Northern Ireland.
- On the basis of that evidence and applying the law as summarised above and in the respondent’s submissions the tribunal is satisfied that it is appropriate in the circumstances of this case to make an Order under Rule 44(1)(b) of the 202 Rules of Procedure Regulations, in order to protect the Convention rights of the parties and the witnesses herein, having specific regard to Articles 2, 3 and 8 of the Convention and Rule 44(1)(d)(ii) of the 2020 Rules cited above.
The tribunal therefore orders per Rule 44(3)(b) that the identities of all named individuals herein will be anonymised throughout the substantive judgment. Each person is identified by a number, by their rank or status and a description of their role.
SOURCES OF EVIDENCE
- The tribunal considered only the documents to which it has been referred to during the hearing. The substantive bundle of documents totals 1,559 pages and was prepared by the respondents. A further bundle, totalling 254 pages, was prepared by the claimant. These bundles have been considered in respect of any documents therein referred to during the hearing. The claimant had furnished the tribunal with:-
- electronic files containing recordings of radio and telephone communications between PSNI personnel during policing incidents, which the tribunal discounted for the reasons set out in paragraph 12 below;
- a recording of a meeting (“the second review) between the claimant and two officers; and
- two cassette tapes containing a recording of an interview with Chief Superintendent 30. Whilst these were produced by the claimant they were not referred to by any party and the tribunal therefore discounted them.
- As was explained to the claimant at the outset of this hearing and throughout, the function of this tribunal is not to conduct a review of the management of individual policing incidents in which the claimant played a role. That is not a matter this tribunal can consider. This is a statutory tribunal with a specific statutory jurisdiction, the role of this industrial tribunal is to decide whether the actions of the respondents and their servants and agents subsequent to specific policing incidents were acts of unlawful discrimination as alleged by the claimant. Therefore the tribunal did not consider the contents of any of the electronic files containing recordings of radio and telephone communications between PSNI personnel. The content of the recording of the interview with Chief Superintendent 30. was not in issue at the hearing of this case.
- All witnesses had provided written witness statements. The claimant himself provided three witness statements, with supplementary documentation, totalling 50 pages.
- The following...
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