FAIR EMPLOYMENT TRIBUNAL

CASE REF:	106/01FET

APPLICANT:	James Gibson

RESPONDENT:	Short Brothers PLC

DECISION
The unanimous decision of the Tribunal is that it does not find that the applicant was unlawfully discriminated against by the respondent.  The application is dismissed.

Appearances:
The applicant was represented by Ms S Bradley, Barrister-at-Law, instructed by the Equality Commission.
The respondent was represented by Mr R Murphy of the Engineering Employers’ Federation.

1.	The applicant had worked for the respondent from 1956 until 1997.  It was an accepted fact that he applied for and was granted voluntary early retirement in 1997.  The Tribunal saw the letter which was sent to him on 5 November setting out the amount that would be paid and the Tribunal accepted that there was no restriction regarding further reemployment by the company raised in that letter.  The applicant stated that he accepted voluntary early retirement on those terms in November 1997.

2.	He applied for a position as a skilled operator in November 2000.  The Tribunal accepted that this was the third application he had made.  He had not been short-listed for the other two jobs and he was not short-listed for this.  The Tribunal accepted evidence this was for a full-time permanent position.  In other words he would be entering the workplace as a full-time Shorts employee with the relevant terms and conditions.

3.	The Tribunal accepted that the applicant did not receive any acknowledgement of his application form and he heard nothing until he sent a recorded delivery letter to the respondent.  He received a reply dated 8 December 2000 which informed him that he would not be short-listed for interview.  No reason was given for this.  

4.	The applicant was aware that there were other men who had taken voluntary early retirement who had gone back to the workplace.  He gave their names to the Tribunal and the Tribunal looked at each one of them in turn.  The common link between these people, having heard the evidence, was that they did not apply for full-time positions with the company.  Most of them according to the evidence had not approached the company themselves but because of various problems with work processes they had been approached by managers from the company.

A.	Jimmy Kennedy

He took voluntary early retirement in June 1998.  It was common case that he was employed by the company as a temporary employee from 27 March 2000 until 15 September 2000.  He was working on the CRJ – 200 contract reporting to Stephen Geoghegan.  The Tribunal heard evidence and saw a document which confirmed that Mr Kennedy had been brought in from Hytek Services Limited, an agency that supplied workers to Shorts.  The Tribunal noted that he was paid on an hourly basis.  

B.	Colin McVeigh

He took voluntary early retirement.  The applicant stated that he thought Mr McVeigh had been re-engaged twice.  The respondent’s representative had replied to a Tribunal Order and stated that Mr McVeigh was re-engaged.  Mr Irvine, the Human Resources Adviser confirmed that he knew Mr McVeigh from when he worked in Shorts and saw him in the company about six months to a year after he had left.  He asked Mr McVeigh why he was back and Mr McVeigh said he was back to do a specific task for the company for a short period.  Mr Stephen Cowan was the Procurement Manager for new business and he stated that he knew Colin McVeigh and Mr Sherard.  Mr McVeigh came back because he had the expertise required to deal with a problem on the Fokker Wing Production.  At this time the engineering department needed a number of people to get delivery on time and they required a total of eleven people.  They were under a great deal of pressure and could only source six or seven employees internally.  These people were called surveillance reps and the Tribunal saw a document compiled by Mr Cowan which gave the entry criteria for these reps.  He contacted Mr McVeigh and Mr Sherard.  He knew that they had left the company and that they had gone out on voluntary early retirement.  He gave them the criteria for the surveillance rep posts and they agreed to come back on a very short term basis.  He stated that both men worked approximately six to nine months and enabled the company to meet the time schedule and deliver within the budget.

C.	Brian Wightman

He took voluntary early retirement in March 1996.  The Tribunal saw documents which showed that he had been a temporary employee on an hourly basis in December 1998.  The Tribunal accepted that his employment was terminated on 29 January 1999 and again there is a reference to being a temporary employee.  The Tribunal saw further documentation from the company which related to Billy Atkinson who had been recruited as a temporary employee and the assembly methods manager stated in his letter that the task was scheduled to last six or seven weeks.  Again he was referred to as a temporary employee and a letter to Billy Atkinson told him that he would be paid an hourly rate for a minimum of twenty hours per week.  It also stated “that hours and days of work may be varied in accordance with departmental requirements or by mutual arrangement”.  It further stated “the company will operate one week’s notice of termination by either party”.

5.	The applicant was convinced that he was not recruited because of his trade union activities and because all those persons that were brought back were Protestants.  The applicant’s own evidence was that he had been an active trade unionist, but he did not satisfy the Tribunal that he was in any sense an active trade unionist at the time of taking voluntary early retirement or that it was in the mind of any person considering his application for full-time employment.  Mr Bennett gave evidence and stated that he had worked with the company until 2003.  He had suggested Jimmy Kennedy for re-engagement.  He knew that he had taken voluntary early retirement.  He liaised with Ken Teague and in fact contacted Jimmy Kennedy at home and told him to go to see Hytek Agency with a view to being recruited as a temporary employee.  

6.	Mr Paul Irvine, Human Resources Manager in 2000, gave evidence to the Tribunal.  The Tribunal accepted that he was the instigator of a procedural document which applied to all external applications for employment and was used by the Human Resources department as a procedure when considering all external applications.  The Tribunal also accepts that in 2000 the company, which has cyclical employment, was actively recruiting for various production operatives and there were thousands of applications to be considered at that time.  The Tribunal accepted that the procedure covered “all vacancies within the company which have been requisitioned to be filled from external sources and for which there are not presently nor are there likely to be any suitable internal candidates”.  There are a number of checks which the company carries out when considering application forms.  One of the checks is on ex-employees.  There is a computer system called TPA where the company can highlight if an ex‑employee has any attendance record and to check the reason for leaving.  It states clearly on this policy that if the employee was dismissed, or left on voluntary early retirement, highlight as above.  Such applicants will not be re-employed.  Mr Irvine drew our attention to the applicant who was rejected from permanent employment by Mr Irvine on 29 November 2000, and a Mr Adams who was rejected from full-time employment as an inspector in quality on 26 June 2000.  Both men had taken voluntary early retirement.  

7.	The Tribunal accepted that Mr Irvine had been working on this policy for external recruitment with Alan McClean (deceased) who was the Human Resources Manager.  The Tribunal accepted Mr Irvine’s explanation that there were financial implications for employees’ pension rights if they went out on voluntary early retirement and then were re-engaged as full-time employees, and it was for this reason that Human Resources Policy decided that they should not be accepted as full-time employees again.  He agreed that this was not the policy when the applicant took voluntary early retirement.  However, the Tribunal does not draw an inference of discrimination from this.  Mr Irvine gave evidence that at the time of the major recruitment drive in 2000, seven hundred and fifty-nine people applied for application forms for the post of skilled operator.  He was responsible for rejecting ex-employees who had gone on voluntary early retirement.  

8.	Mr Irvine accepted that his department did not acknowledge receipt of application forms because of the pressure of numbers.  The Tribunal accepted that this applied to every application form, irrespective of political opinion, religious belief or sex.  He also accepted that there were many more Protestant employees in the company than Roman Catholic employees.  He knew the applicant had been forty years in the company, because he himself had been in the company for thirty-seven years.  He did not know Mr Gibson’s religion nor of his trade union activities.  He agreed with Counsel for the applicant that it was unlikely that the applicant would have known above the human resources policy in relation to ex-employees in 1998.  He agreed that the persons named by the applicant as comparators were brought in as temporary employees although he did not know the exact terms and conditions on which each man had come back.  The Tribunal accepted that they did not come back as permanent employees with the respondent.

9.	The Tribunal heard evidence from Mr Teague, the Department Engineer, Mr Cowan, the Procurement Manager, and Mr Burke who was the Methods Manager for final assembly.  They all gave evidence in relation to the short term needs relating to their various functions and departments and that in order to satisfy these needs they had to recruit some ex-employees of the company who had the requisite skills required to assist for a short period of time.  Without going into all the evidence, the Tribunal accepted as fact that none of the managers were aware of the policy from human resources relating to voluntary early retirement employees.  The Tribunal accepted that all the men that they brought back only worked on temporary contracts with hourly rates and did not enjoy any of the full-time employees terms and conditions of service.  The Tribunal also accepted that all the men named by the applicant were employed for relatively short periods of time and then returned to retirement.  Some persons were brought back via one of the two agencies that Shorts used for temporary contracts, some persons were approached directly.  The Tribunal accepted that they were all Protestant.  The Tribunal also accepted that none of these witnesses were aware of Mr Gibson or his trade union activities or his religion.  The Tribunal has considered the evidence and found facts from the evidence.  The applicant has not been able to show that he was in the same relevant circumstance as the persons with whom he has tried to compare himself.  He was treated in the same way as Mr Adams in terms of applying for a full-time position with the company when he had accepted voluntary early retirement.  He has not been able to show that there was any other person on voluntary early retirement who applied for a full-time position with the company and who was short-listed or employed.  He has to make this comparison of relevant circumstances in order to establish less favourable treatment.  

10.	This Tribunal is satisfied that there are substantial differences between a person applying for a full-time position with the company and someone who is recruited on a temporary basis for a specified period or to perform a specific function.  The applicant was looking for a weekly wage, terms and conditions such as holiday pay, sick pay and potentially a further claim for a pension.  The persons that he has named were all recruited either through an agency or directly as temporary employees on an hourly rate with nothing more than a week’s notice of termination of employment for either party.  This is where the Tribunal finds that it is impossible to say that the relevant circumstances of the applicant and those he chose to compare himself with were the same or not materially different.  

11.	Counsel for the applicant has asked us to draw inferences of discrimination from the respondent’s failure to acknowledge the applicant’s originating application, for not giving him the real reason for rejecting his application, the failure to explain the human resources policy on voluntary early retirement to the managers in the various departments and the failure of the respondent to answer the statutory questionnaire within a reasonable period.  It is accepted that the respondent did not answer the statutory questionnaire until the day before the original hearing in this case.  Clearly that is a serious failure and in many cases is capable of leaving the Tribunal to draw an inference of discrimination on that ground.  The Tribunal has considered these submissions and criticise the respondent for them.  Because of the difficulty faced by the applicant in proving, in the first place that he was less favourably treated, the Tribunal does not go so far as to infer discrimination from the failures of the respondent.  The respondent has established that there were a large number of applicants for the positions advertised and it is a reason why a company decision was taken not to acknowledge all the applications.  That is not as serious a failure as the letter which was sent to the applicant in December 2000.  The letter did not give the reason for his failure to be shortlisted and the Tribunal considers that if the respondent had been forthcoming with its reason the applicant would have been placated to some extent.  However, this failure in itself does not lead us to infer discrimination.  We do not find that Mr Irvine was deliberately misleading the Tribunal or that a person of a different religion would have received any other type of letter.  

12.	The failure to reply to the statutory questionnaire is a serious failure.  It was sent to the respondent in February 2001 and the reply was not dated and sent until 29 March 2004 which was actually on the morning of the first hearing.  This is unreasonable conduct by the respondent and all its representatives.  Counsel for the applicant stated that there were not full replies given to all the questions asked even at that stage.  The Equality Commission was writing to the respondent from 29 May 2002 and had to apply to the Tribunal for an Order.  The Tribunal is aware that there were a number of Orders made against the respondent.  Counsel for the applicant drew attention to the Equality Commission’s letter to the respondent putting them on notice that they were going to ask the Tribunal to draw an inference of discrimination from the respondent’s failure to answer the statutory questionnaire.  The respondent’s submission was that they were providing information to the applicant from the time that the originating application was lodged and in particular from when the Equality Commission assisted him.  Mr Murphy drew attention to his letter dated 6 August 2004 in response to the Equality Commission’s letter which was dated 1 April 2004.  Because of the seriousness of this failure to comply with the requirements of Article 44 of the Fair Employment and Treatment (Northern Ireland) Order 1998, the Tribunal annexes this correspondence to its decision.  The Tribunal is aware that in order to draw an inference the Tribunal must find that “the respondent deliberately and without reasonable cause omitted to reply within a reasonable period or that his reply is evasive or equivocal.  In this case the failure to reply has been answered by the respondent’s representative.  The Tribunal does take a serious view of this but as information had been supplied during the years before this case came to hearing and because of the nature of the information supplied the Tribunal does not find that the respondent deliberately and without reasonable cause omitted to reply.  It does not find that the replies were evasive or equivocal and as such does not show an inference of unlawful discrimination.  The Tribunal considered the case of Barton-v-Investec Henderson Crosswaithe Securities Limited 2003 IRLR at 332 and considered the decision of the Employment Appeal Tribunal.  

13.	In this case the Tribunal has pointed to some of the failures of the respondent in relation to procedures but as the applicant has not shown a relevant comparator the Tribunal does not find that he was unlawfully discriminated against and dismisses his application.

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Date and place of hearing:

Date decision recorded in register and issued to parties: