CASE REFS: 00294/99 FET
APPLICANT: Dolores Gorman
RESPONDENT: Northern Ireland Housing Executive
The unanimous decision of the Tribunal is that:-
(i) the applicant was not discriminated against by the respondent on the ground of her religious belief, or on the ground of her sex; and
(ii) the applicant was not discriminated against by way of victimisation by the respondent.
The applicant was represented by Mr B McKee, Barrister-at-Law , instructed by Campbell Stafford, Solicitors.
The respondent was represented by Mr M Long QC, instructed by Legal Department, Northern Ireland Housing Executive.
|2.||(i)||The applicant, by originating applications presented to the Office of the Tribunals on 29 July 1999, alleged that she had been discriminated against by the respondent on the ground of her religious belief, and on the ground of her sex, by reason of the respondent's failure to appoint her to the post of Accommodation Manager on 18 May 1999 and to the post of Environmental Manager on 26 May 1999. She also alleges that the respondent was guilty of discriminating against her by way of victimisation in respect of the failure to appoint her to these posts. Mrs Gorman is a Roman Catholic, and the successful candidates for each post (who on each occasion were the only other candidates) were both male and Protestant. At the time of appointment both successful candidates were acting-up in post.|
|(ii)||In order to determine this matter the Tribunal heard evidence from the applicant, and from Doctor Gerard Loughrey, a Consultant Psychiatrist on her behalf. The Tribunal heard evidence from present and former employees of the respondent on its behalf. They were:-
Heather Currie (a Personnel Officer in the Personnel Policy Unit),
Jim Cunningham (a former Commercial Property Manager),
Jim Smyth (Personnel Manager),
Kathleen Hicks (Senior Principal Officer, Design and Property Services Division),
Brendan Harley (Facilities Services Manager, Western Area),
Oliver Wilson (Assistant Director of Facilities Services in the Personnel and Management Division),
Dermot O'Hara (Personnel Manager),
David Kirkbride, and Esther Christie (Assistant Directors of Corporate Planning in the Corporate Services Division).
The Tribunal also had regard to a considerable amount of documentary evidence submitted by the parties.
|(iii)||The Tribunal finds the facts set out in the following paragraphs.|
|3.||(i)||The applicant, Dolores Gorman, worked for the respondent from February 1979 to date. At the time she made application for the posts of Accommodation Manager and Environmental Manager which are at issue, she was working as an Area Facilities Manager. That was a Level 6 post which she had held since 1987.|
|(ii)||In 1998 the applicant had brought proceedings before the Fair Employment Tribunal alleging that she had been discriminated against on the ground of religious belief and on the ground of sex in respect of a Level 7 Board. These proceedings were ultimately withdrawn by the applicant on legal advice.|
|(iii)||In relation to both posts, the successful candidate had been acting-up for a longer period than permitted by the respondent's own rules.
The applicant accepts that the practice of acting-up, if properly implemented, is both understandable and necessary and may arise, for example, because of pressure of work.
However, in the instant cases, the applicant has argued that the alleged discrimination which she has suffered flowed from a widespread policy within the Housing Executive of allowing acting-up to take place in breach of its own procedures. The effect of this was to by-pass all the protections afforded to candidates in competitive interview situations. Additionally, there were numerous other breaches of procedure from which, cumulatively, the applicant asks the Tribunal to draw an inference of discrimination.
|(iv)||As far as acting-up is concerned, the NIHE Personnel and Management Services Personnel Handbook sets out the rules governing temporary vacancies. Section 1.10 Paragraph 1.2(a) covers vacancies planned to last more than six months, and Paragraph 1.2(b) deals with vacancies which are planned to last longer. For a short term vacancy, an individual can be asked to cover. However, the Handbook recognises that a long term vacancy will "invariably … raise issues of equality of opportunity" and that "normally the vacancy should be trawled internally and an appointment made through competition".|
|(v)||As stated, the posts for which the applicant applied were both awarded to the candidate who was acting-up at the time. Both were short-listed and interviewed by the line manager they were working for. The applicant claims that she was placed at an obvious and substantial disadvantage because the questions asked of candidates at interview were such that a candidate who had detailed knowledge of the actual day-to-day running of the post would be able to provide more focussed answers based on the experience which he had gained. Provided the candidate appointed to acting-up positions was competent, not necessarily the best, the extra experience gained in the specific role gave him or her the edge at interview.|
|(vi)||The applicant gave evidence (which was not disputed) that between 1992 and 1995 many employees – around 50 – at Grade 6 were given acting-up posts on a non-competitive basis. In 1998, when she had been ranked 43 out of 79 on a Level 7 Board, almost all those who were successful or placed on the reserve list had been acting-up without interview.|
|(vii)||Having made these general points about acting-up, we now turn to look at the applicant's complaints in respect of each post.|
|4.||(i)||The position of Accommodation Manager was internally advertised on 1 February 1999. It was a Level 7 post. The closing date was 11 February 1999.
There were two applicants for the post, Mrs Gorman, and Mr Russell Blair. Mr Blair was Protestant and male, and was the candidate who was ultimately successful.
|(ii)||The interview panel for the Accommodation Manager consisted of Oliver Wilson (the successful candidate, Russell Blair, was one of six managers at that level reporting to him), Kathleen Hicks, and Dermot O'Hara. Jim Cunningham, who had prepared the paper on RICS qualifications to which we make subsequent reference below, was there as an observer.
He asked technical questions, but had no voting rights.
Mr Wilson is a Roman Catholic, as is Kathleen Hicks.
Mr O'Hara and Mr Cunningham are Protestant.
|(iii)||The applicant alleged that Mr Cunningham was the former master of Russell Blair when the latter had been studying for his RICS qualification. We accept Mr Cunningham's evidence that although he obviously knew Mr Blair, he was not Mr Blair's former master.|
|(iv)||Mr Blair had been acting-up in the post of Accommodation Manager for five years. He had been appointed to act-up without any competitive interview in November 1999 when the previous post holder retired. This was an admitted breach of the respondent's own procedures relating to acting-up.|
|(v)||Short-listing for this post took place on 27 April 1999.
The short-listing criteria were as follows:-
Candidates were required to:-
"(i) Hold a General Practice Surveying Qualification (RICS) with not less than five years post qualification appropriate professional experience.
(ii) Be able to demonstrate experience in the Property Management aspects of managing a large portfolio of commercial premises preferably in a public sector environment.
(iii) Have two years substantive service at Level 6.
|Exceptionally, where candidates not holding the above level of qualifications but with the appropriate experience could also be considered, provided that they agree to undertake the necessary course of study required to obtain the relevant qualification [sic]".|
|(vi)||Prior to the trawl taking place, in early January 1999, Mr Dermot O'Hara, a Personnel Manager with the respondent who had been appointed as the personnel representative on the interviewing board for the vacant post, and whose responsibility it was to get together a panel, asked Jim Cunningham, the then Commercial Property Manager, to prepare a document setting out the various ways in which a person could attain membership of the Royal Institute of Chartered Surveyors. He prepared such a document on 19 January 1999.
Mr O'Hara also asked Mr Cunningham to assist the recruitment panel as a technical representative. That meant that he would be there in an observer capacity without voting rights, though he could ask some technical questions at the interview.
|(vii)||The short-listing panel met on 27 April 1999. Russell Blair was short-listed. The applicant had stated on her application form that she held "Ex-student membership of the RICS …".
This did not appear to the short-listing panel to relate to any of the categories of RICS membership set out in the document prepared by Mr Cunningham, and this was not a category of membership with which Mr Cunningham himself was familiar.
Notwithstanding this, the panel was satisfied that the applicant could be short-listed on the basis of her experience, and this was done.
The panel further decided that unless they were certain about the applicant's RICS membership status, the appropriate section of the short-listing form (dealing with requirements and criteria) could not be filled in accurately, and so a letter was sent to the applicant on 28 April 1999, which she received on 2 May 1999, formally requesting explanation of her RICS status. There was no reply from the applicant prior to the interview on 6 May 1999, but at the interview the applicant confirmed that she did not hold RICS membership.
It was explained to her that the information had been sought as the panel had been unsure of what she meant.
|(viii)||At the interview, an assessment form was drawn up by the panel by reference to the employee specification, and was used to mark each candidate. There were six core areas, and under each core area there was a list of those characteristics which were considered to be a summary of the key requirements sought from the candidate.
The six core areas were:-
(i) Personal motivation;
(iii) Operational effectiveness;
(iv) Service delivery;
(v) Communications; and
(vi) Personal characteristics.
|Following the interview the aggregate mark was 186 for Mr Blair and 175 for Mrs Gorman. Mr Blair was therefore appointed. As Mrs Gorman's mark was quite close to that scored by Mr Blair, and as the panel were satisfied that she was capable of carrying out the duties of the post to the required standard, it was recommended that the applicant be placed on a reserve list.|
|5.||(i)||The applicant makes various criticisms of the interview itself, the scoring, and the events leading up to it.
One matter which has caused her particular concern was the querying by the respondent of her qualifications. She points to the facts that Mr Cunningham was asked to draw up his document on RICS qualifications in January 1999, before the post was trawled; that she was written to at the direction of the short-listing panel on 28 April 1999 about her RICS qualification (something she alleges was outside normal procedure); and she also alleges that there was a question mark over the qualifications of the successful candidate, Mr Blair, but that his qualifications, unlike hers, were not queried.
|(ii)||We accept the evidence of Mr O'Hara that in January he requested a document setting out RICS qualifications because it was normal for there to be discussion about draft job descriptions and what would be the appropriate level of qualification sought.
As far as the letter to the applicant of 2 May 1999 was concerned this was written because the panel were unsure what she meant when she stated that she held "Ex-student" membership of the RICS. This was, after all, a category which was not known to Mr Cunningham who had prepared the paper on RICS membership.
The purpose of the query was not to question her qualification, but to seek clarification of what she meant.
The reason no letter was sent to Mr Blair was because, although there was an issue of the validity of his qualifications (in the sense that he appeared to have obtained his degree and RICS membership at the same time) he held recognised qualifications on the face of his application form.
Insofar as the applicant suggests that the query about her qualification was part of an attempt to do her down, this does not bear scrutiny. She was short-listed in any event on the basis of her experience, and the panel had short-listed her before it was decided to seek clarification of her RICS status. In view of this finding, we also reject the applicant's claim that the post qualifying experience specified in the job description was also changed from three years to five years in a deliberate attempt to disadvantage her.
|(iii)||Another concern of the applicant is that the job description for the post of Accommodation Manager "inexplicably" made no mention of qualifications in estate management and health and safety; even though the job had a health and safety component. The applicant would argue that her experience in health and safety matters was considerably greater than that of Russell Blair. However, we accept the evidence of the respondent's witnesses that the health and safety aspects of the Accommodation Manager's post had been largely removed from it by the time the job was trawled.|
|(iv)||The applicant was sent notice of interview on 28 April 1999.
She received this on 2 May 1999, and the interview was held on 6 May 1999. The NIHE Personnel Handbook says that it will be normal practice to give at least seven days' notice of date and times of interview. The letter of 28 April 1999 would, in the normal course of events, have given sufficient notice. However, the applicant was away in England on a course sponsored by the respondent, and it was Mr Wilson who had authorised her leave to attend this course.
The applicant points out that Mr Wilson was aware that she would not be back home until 2 May 1999, and attributes this lack of notice to part of an attempt to do her down.
While it is regrettable that she did not in fact get seven days' notice, we see no evidence from which we can infer that this state of affairs arose as part of a deliberate attempt to disadvantage the applicant. We are satisfied that it was an unfortunate consequence of circumstances.
|6.||(i)||The applicant also complained that appraisal reports on candidates were not available. The Personnel Handbook stated that such reports should be utilised for short-listing. In the case of the Accommodation Manager post they did not become available until 6 May 1999, the date of the interview. We are not satisfied that the applicant was disadvantaged by this failure in procedure. Mr Blair also had a good appraisal report, and his was not made available until the same stage was the applicant's.
It appears to the Tribunal that this aspect of the case has more to do with general laxity in the provision of reports to Boards in the Housing Executive and it is not therefore something from which we are prepared to infer that she suffered discrimination on any of the proscribed grounds.
|(ii)||The applicant also felt that she had been disadvantaged by the lack of a presentation to the interview panel which, according to her and was not disputed by the respondent's witnesses, had been a normal part of the interview procedure at Level 7 for many years. She believed that presentational skills were among her strong points, and that a presentation would have obviously disadvantaged Russell Blair.
However, the Tribunal is satisfied that the reason a presentation was not required was because the nature of the post did not make it necessary. The Accommodation Manager would not, in the normal course of his or her duties, have to make presentations. To have included the giving of a presentation at the interview in these circumstances had the potential to give rise to complaints by other candidates that an unnecessary attribute for the post had been introduced.
|7.||(i)||The applicant's general point about the interview is that Russell Blair, by virtue of acting-up in the post for so long, had an unfair advantage over her. She complains of the marking and in particular she points to the criterion of operational effectiveness and value which was the category in which Russell Blair scored over her by the greater margin. She believes that she was a better candidate than Russell Blair and that the decision to appoint him was not based on merit. The avoidance of open competition at the acting-up stage allowed the selection of an employee which would present a balanced religious and sexual workplace in circumstances where it was expedient for the respondent to approve a male Protestant as the token Protestant in a department which was dominated by Roman Catholics.|
|(ii)||The respondent's witnesses accepted that Mr Blair's period of acting-up had gone for too long, in breach of the respondent's own rules. In 1998 there had been an Efficiency Review which had recommended changes to the structure of the Accommodation Department, and there was doubt whether the post of Accommodation Manager would survive in the form that it had done during the tenure of the previous (permanent) occupant. The Tribunal accepts that this was genuinely the reason for Mr Blair's protracted period of acting-up, though it does not seem to us that that makes any more acceptable what was a flagrant breach of the respondent's own rules.
We are, however, satisfied that the panel members, from their training were conscious of the need to guard against the automatic appointment of the acting-up candidate. On the evidence we are not satisfied that the applicant has established that she deserved higher marks than she received.
|(iii)||It is convenient to deal here with another point made by the applicant. The 1998 Efficiency Review had recommended the removal of Mr Blair's substantive Level 6 post (ie the post he occupied before acting-up). This, says the applicant, provided a reason to appoint him to the Level 7 post as he was otherwise surplus to requirements. However, we are satisfied that had he not been successful in the competition for Accommodation Manager, he would not have been made redundant, but would have been redeployed within the organisation.|
|(iv)||We appreciate the real sense of grievance felt by the applicant, having regard to the breaches of procedure to which we have referred.
However, we are not satisfied that she has established facts from which we can infer that she was discriminated against on the proscribed grounds of her religion and her sex as alleged by her.
We therefore dismiss her claims of discrimination on the grounds of her religious belief and her sex in relation to the post of Accommodation Manager.
|8.||(i)||We now turn to the applicant's claim of victimisation by the panel.|
|(ii)||The applicant had concerns about some aspects of the conduct of Mr Wilson both prior to and subsequent to the panel.|
|She alleges that prior to the interview, in or around mid March, she was phoned by Mr Brendan Harley, another Facilities Manager. He said that he had been asked by Mr Wilson to enquire whether or not she intended to apply for the Environmental Manager's post, which was also in issue. According to the applicant, Mr Harley said that she would have a good chance of success. He then asked her what she would do if she did not get the Accommodation Manager's post – would she appeal the decision and take a case?|
|The applicant was upset at this. It looked to her as if she was being encouraged to withdraw from the Accommodation Manager's post on the basis of a promise that the Environmental Manager's post would be hers.|
|(iii)||At an NIHE away day at the Tullyglass Hotel, Ballymena, on 21 April 1999, the applicant was approached by Mr Wilson, who directly encouraged her to apply for the Environment Manager's post.
This further confirmed the applicant's view that he did not want her in the post of Accommodation Manager.
|(iv)||Mr Harley accepts that he phoned the applicant at Mr Wilson's request and asked her if she was applying for the post of Accommodation Manager. However, it was not unusual within the organisation to ask someone else's intention with regard to a particular post.|
|He denies, however, that the purpose of his telephone call was to say, at Mr Wilson's direction, that if the applicant did not apply for the Accommodation Manager's post, she would get the Environmental Manager's post.|
|He states that Mr Wilson never expressed any anger towards the applicant about the case she had taken.
This was also Mr Wilson's evidence, which we accept. While Mr Wilson does not have any specific recollection of his conversation with the applicant at the Tullyglass Hotel, he accepts that he may well have encouraged the applicant to apply for the Environment Manager's post. We accept his evidence that he would have encouraged any manager to apply for promotion, and that there was no suggestion by him that the applicant would not get the Accommodation Manager's post.
|Mr Harley was a friend of Mr Wilson's – they played the guitar together. However, he was also on friendly basis with the applicant. We accept his evidence when he says that he would not act in any way to undermine her.|
|9.||(i)||The applicant alleges that since these appointments she has been subjected to further victimisation. She relies on these subsequent incidents, not as part of her complaint before the Tribunal, but as evidence of victimisation.|
|She claims she has not been asked to attend NIHE annual conferences, or been invited to sit on project teams or focus groups.|
|The Tribunal is satisfied, however, that it is not the case that everyone at the applicant's grade (Grade 6) is invited to these events as a matter of course.|
|(ii)||She also complains that her application to do a Master's Degree has been refused for the past three years. The Tribunal found that on one occasion the proposed course was rejected because the subject was deemed not relevant, on the second occasion the applicant was spoken to and a relevant course suggested, and on the third occasion she was turned down on financial grounds along with two others.|
|(ii)||In 2001 a Purchasing Manager's post was advertised as a secondment. The applicant could have been given the job on an acting-up basis without interview. An interview panel was set up, consisting of Oliver Wilson and Dermot O'Hara, both of whom were named in the current applications before the Tribunal. When the applicant realised who was sitting on the panel she could not go through with the interview and left. Oliver Wilson subsequently followed her to her place of work at Craigavon after the interview, and offered her the job which she refused.|
|This is in contrast to the treatment given to Russell Blair. Although the applicant is inconsistent in wanting a job without interview when she herself made complaint about such a process, we consider that this is an incident from which it would be possible to infer that Mr Wilson wished to victimise the applicant.
However, by this time, as a result of the cases brought by the applicant, acting-up without interview was in issue.
|(iii)||Mr Wilson has told the Tribunal that he was not disposed to do the applicant down, that he did not want to see Russell Blair appointed, and that his concern was that the right person should be appointed to the post. We accept his evidence in these respects.
He admittedly had knowledge that the applicant had lodged previous proceedings. However, he had not been involved in the recruitment exercise which gave rise to those proceedings, and he was not a party to them. He therefore had no axe to grind in this respect.
The position is similar in regard to Mr O'Hara.
Kathleen Hicks was not aware of the previous proceedings, and the applicant accepts that she had no reason to favour Russell Blair or to discriminate against her.
Mr Cunningham, who in any event did not have voting rights, was also not aware of the previous proceedings instituted by the applicant.
|(iv)||We therefore also conclude that the applicant was not discriminated against by way of victimisation in relation to the post of Accommodation Manager.|
|10.||(i)||We now turn to the Environmental Manager's post.|
|The applicant applied for this post in March 1999. It, too, was a Level 7 post.|
|There were two candidates, the applicant and Mr Dermot Loughridge. Mr Loughridge was Protestant and male and was ultimately the successful candidate.|
|Mr Loughridge had been acting-up in the post since 1997.|
|Initially, he had been appointed to act-up without competition, but he was awarded the post by competition in 1998.|
|Again there was an admitted breach of the respondent's own procedures with regard to acting-up.|
|(ii)||The interviewing panel was chaired by David Kirkbride. (The Environmental Manager reported to him.) Mr Kirkbride was a Roman Catholic. He was unaware that the applicant had brought previous proceedings against the respondent. The other members of the panel were Esther Christie, who was a Roman Catholic. Ms Christie had been a member of the previous interview panel at which the applicant was a candidate, and in respect of which she had brought the Tribunal proceedings. Ms Christie held a Level 9 post within the Housing Executive.|
|The final member of the panel was Mr Smyth.|
|(iii)||The applicant makes various complaints about this Board.|
|The most important of these relates to the presence of Ms Christie, who was the subject of a previous complaint, on the Board.|
|As soon as Ms Christie became aware that the applicant was a candidate, she drew the conflict to the attention of Mr Smyth.|
|He told her, in effect, that he did not believe this was a difficulty, and she relied on that advice and continued to sit on the Board. In his written statement of evidence which was adduced as his evidence-in-chief before the Tribunal, Mr Smyth said:-
"… Esther Christie … advised me that she had been a member of a previous interview panel in which the applicant was a candidate and which was the subject of possible Tribunal proceedings. I considered this but did not believe that it constituted a conflict of interest. I also felt that it was somewhat inevitable that candidates would have had previous dealings with panellists, due to the limited number of people within the Housing Executive. I advised Esther Christie that I saw no reason why she should not continue."
|It has to be said we find it somewhat surprising, to put it mildly, that Mr Smyth saw no conflict of interest here, and the reference to inevitability of candidates having previous dealings with panellists is somewhat disingenuous. It is the nature of those dealings which is crucial. In Duffy v Eastern Health & Social Services Board 38/90 FET, the Tribunal, in dealing with an interview with Mrs Duffy during the currency of her complaint, stated:-
"We were amazed that two officers against whom a complaint of unlawful discrimination has been made, would feel free to conduct further interviews with that person pending the resolution of that complaint."
Duffy was by no means a recent case, and it is appalling that the message it conveyed had not sunk in with this respondent by 1999.
|However, we believe Mr Smyth when he said that he had attempted to secure a balanced panel. Panellists, other than Personnel representatives, had to be of a higher grade than the post in question, ie in this case Grade 8 or above. The pool of potential female panellists was limited, and Esther Christie was only approached after another female at Grade 8 had said she was unavailable. It was suggested that the Director of Personnel, who was female, could have been asked to sit on the panel, but this would have been unusual and the applicant had been writing to the Director of Personnel in an effort to have the Board held promptly. (The applicant was due to go into hospital.) Should there have been any appeal from a Board, the Director of Personnel was the appropriate person to hear it.|
|We are, however, satisfied that Ms Christie marked the applicant fairly, and we find that she and the other members of this panel provided satisfactory explanations for the applicant's criticisms of her scores. We do not accept that Mr Smyth's decision to appoint her to, and to let her remain on the panel – unfortunate as it was – was done to favour Mr Loughridge.|
|(v)||Other complaints made against this Board are similar to those made in relation to the Accommodation Manager's post.
First, the complaint is again made that the fact that one of the candidates had been acting-up gave him an advantage at interview, and indeed Mr Kirkbride fairly acknowledged that sitting on a panel presented difficulties where a panellist had knowledge gained through working with the acting-up candidate. This must inevitably be so. The respondent was clearly at fault in respect of its own procedures. However, there is again no evidence from which we can conclude that the applicant suffered unlawful discrimination on the ground of her religious belief or sex.
|The short-listing panel did not meet as a group, but Mr Kirkbride met the other two Board members separately. This, however, did not prejudice the applicant who was short-listed in any event.|
|Similar criticisms are made about notice of the interview - five days instead of seven – (though there is no evidence to show that Mr Loughridge received longer notice than the applicant) missing appraisal reports, and the lack of a presentation. Again we do not consider that these breaches of procedure lead to a conclusion of unlawful discrimination. The cumulative effect of the unreasonable treatment meted out to Mrs Gorman was deplorable, but we nonetheless do not consider that the incidents, when taken together, assume a different significance.|
|(vi)||The applicant was interviewed first. She states that there was a thirty minute delay before Mr Loughridge went in. The applicant states that she "was informed that the panel discussed [her] outstanding application in the Fair Employment Tribunal" and that she "believe[d] the fact that [she] has issued proceedings against the respondent was at the forefront of Esther Christie's mind and must have consciously or subconsciously influenced her". However, the applicant was not prepared to identify the person who told her this, and the panellists denied that any improper discussion had taken place.|
|We therefore do not accept that in relation to the post that the applicant was discriminated against on grounds of religion or sex or that she suffered discrimination by way of victimisation. In the course of her evidence she stated that it was advantageous for the respondent to appoint a Protestant. However, when asked in what way it was advantageous, she said that she was not aware of the structure of the department.|
|Significantly, all those on the interview panel were her co-religionists, and although it is possible for Roman Catholics to discriminate against Roman Catholics, there is no evidence that this happened on this occasion.|
The applications are dismissed.
Dates and place of hearing: 9, 10 and 11 June 2003
4, 5 and 7 August 2003
1, 2 and 12 September 2003
10 October 2003 at Belfast
Date decision recorded in register and issued to parties: