FAIR EMPLOYMENT TRIBUNAL

CASE REF:	00313/99FET
03534/99SD

APPLICANT:	Raymond Leckey

RESPONDENT:	Next Retail Limited 

DECISION
The unanimous decision of the Tribunal is that the applicant was not unlawfully discriminated against by the respondent on the grounds of religious belief or on the grounds of sex.  The originating applications given the case reference numbers listed above are therefore dismissed.  

Appearances:
The applicant appeared in person and gave evidence.
The respondent was represented by Mr P Grant, Barrister-at-Law, instructed by McKinty & Wright, Solicitors.

1.	The applicant alleges that he was unlawfully discriminated against on the grounds of religious belief and sex when he was informed by his store manager, Avis Brunt, on 15 March 1999 that he was to be demoted from the following February from his position as floor manager while Carmel McShane, the other floor manager in the store who was female and a Roman Catholic, was to continue in that role.  He further alleged that when he complained about the method of his selection for demotion and a further selection process was put in place, that this new selection process was also carried out in a flawed fashion in order to discriminate against him.

2.	The applicant commenced employment with the respondent in June 1989.  He was appointed floor manager in the menswear department of their Derry store in February 1995 around the same time as Carmel McShane was appointed the floor manager in the womenswear section of the store.  The applicant scored higher than Carmel McShane on a floor manager’s course held at the time of their promotion to floor managers.  The applicant is a Protestant and male.  Ms McShane is a Roman Catholic and female.  Both floor managers were capable and competent at their jobs.  

3.	In 1998 the respondent suffered a downturn in business overall.  As was normal practice in the whole company, the area manager for Ireland North conducted a review of each store and each department’s mean annual turnover figures.  This entailed a comparison between the targets set for each store and each department and the sales’ figures achieved.  This comparison showed a considerable shortfall in the menswear department in the Derry store and led to the conclusion on a company formula that the Derry store could no longer justify two floor managers.  In March 1999 the area manager, Fiona Shields, who was a Protestant, informed the store manager Avis Brunt, also a Protestant, that she should begin consultation with the floor manager in menswear with a view to giving him notice that as from the following February he would no longer be floor manager but would revert to a senior sales consultant position with his salary held at current level until the other senior sales consultants’ salary levels equated to his.  Ms Shields also decided at this time that two smaller stores in Northern Ireland who were also not meeting their targets, could no longer justify their single floor manager posts and as in the case of the Derry store she instructed the relevant store managers to inform these floor managers, who were female that they would have to revert to senior sales consultants from February 1999 on the same terms as those outlined above.  

4.	By October 1999 a decision was taken that it was not necessary to remove any of these three floor manager posts and all remained in place as floor manager, including the applicant who continued in that position at the date of hearing.  

5.	The applicant was dissatisfied with the decision to select him for demotion and wrote to the respondent’s headquarters about his dissatisfaction and indicated that he considered that both he and Carmel McShane the other floor manager should have been consulted/considered equally before a decision was taken as to which floor manager position should be removed.

6.	The respondent after consideration agreed to hold a selection process which involved both floor managers and subsequently confirmed in a letter dated 6 July 1999 from the Human Resource Manager to the applicant that the initial procedure adopted was not entirely appropriate in the particular circumstances where the position of two floor managers were being reduced to one, this being apparently the first occasion this had occurred in all of the respondent’s 350 outlets.  The respondent then produced a selection procedure which had previously been used when the respondent closed its cafes and redeployed catering staff in the sales or stockroom side of their stores.  

7.	This selection process was discussed with the applicant and the other floor manager and both agreed to the criteria on which the selection was to be made, although Carmel McShane expressed some reservations about it.

8.	The selection procedure assessed the two candidates on attendance/time-keeping, disciplinary action, appraisal/review records, sickness and length of service.  The criteria were to be assessed over a very narrow band of allocating from three for excellent down to minus two for a second written warning with the intervening scores being two, one, zero and minus one.  The selection procedure was carried out by Avis Brunt.  However, while the selection procedure which had been used for catering staff provided for an interview to take place the respondent through its Human Resource representative and its legal department did not consider interviews appropriate in this particular instance.

9.	Both candidates were awarded an overall grade two in respect of attendance/time-keeping although no actual records were kept in relation to this.  Neither had any disciplinary action noted against them.  Both were awarded two for their appraisals and one for their sickness record.

10.	Ms Brunt carried out performance appraisals for both the applicant and Ms McShane on 14 and 15 May 1999 respectively and both were awarded an overall grade of two over the eight categories assessed.  The applicant had seven grade twos and one grade one for merchandising while Ms McShane had eight grade twos.  Grade one represented “performance consistently achieves a very high standard” and grade two represented “performance to a satisfactory standard”.  After Ms Brunt had carried out the assessment including the appraisals the applicant and Ms McShane were equal at the end of the first four criteria and so length of service was brought into play and Ms McShane with one year and four months longer service with the respondent was confirmed as the person to remain in the floor manager’s job.

11.	The applicant remained dissatisfied about the overall situation.  He considered that there should have been consultation with both floor managers from the start and that there should have been an interview for the position and he maintained that he had not been offered the “fair chance” referred to in the respondent’s equal opportunities policy statements.  He continued to write letters to the Human Resource Department and ultimately a meeting was held on 25 June 1999 between himself and Ms Weir, a Protestant from Human Resources and Ms Shields, to try to resolve his dissatisfaction.  He continued to be of the opinion that the paper selection exercise carried out was simply an attempt to confirm the initial decision taken to demote him.

12.	The applicant also considered the paper selection exercise to be flawed.  Firstly because he believe that the sickness records were largely based on the year 1999 to 2000 because of the documents provided to him and to the Tribunal and secondly because he believed that there was no performance appraisal for Ms McShane in the agreed year 1998 to 1999.  However, he conceded that he too did not have a performance appraisal in that year and he agreed to Ms Brunt carrying out performance appraisals on both of them in May 1999, the results of which were used for the purpose of the selection exercise.  The applicant maintained he could see no reason other than either his religious belief or sex for him being chosen to be reduced from floor manager rather than Ms McShane.

13.	In summing up Mr Grant pointed out that the decision in March 1999 to reduce the floor manager position in menswear arose as a result of the menswear department’s sales figures not meeting their targets.  He also pointed out that when the further selection procedure was implemented the applicant did not complain about the actual selection criteria only about the way in which it was applied to him.  He pointed out that the onus of proof was on the applicant to establish that he had been subjected to less favourable treatment.  He queried whether the applicant had actually suffered a detriment in the circumstances of this case where he continues to be a floor manager, never having actually lost the position.  

14.	Mr Grant accepted that the respondent could not produce to the Tribunal some of the documents on which Ms Brunt relied, particularly in relation to the sickness records.  He also suggested that it was inherently unlikely that the three persons involved in the procedure which led to the applicant being selected for demotion, who were all of the same religious belief as the applicant, would have deliberately discriminated against him.  

15.	Overall Mr Grant suggested that the applicant had not come near to establishing that he had been discriminated against on the grounds of either his religious belief or political opinion or sex.

16.	He suggested that applying the “but for” test as enunciated in James –v- Eastleigh Borough Council [1990] IRLR 288 HL, it was quite clear that the reason for the removal of the floor manager’s position was because of the drop-off in menswear sales with nothing to do with either religion or sex.  He also suggested that the further selection process entered into was because of the applicant’s complaint which had been taken seriously.  He also pointed out that the applicant was incorrect in his assertion to the Tribunal that Ms McShane’s appraisal was carried out outside the timeframe specified or that the sickness records were not based on the appropriate year.  He also suggested that if the Tribunal were to accept the applicant’s argument in relation to this that it should also accept that the applicant’s own appraisal and absence records were based on periods outside the requisite timeframe.  

17.	Mr Leckey pointed to his years of commitment and loyalty to the respondent.  He felt very aggrieved when he was told that he was to be demoted in March 1999 and he felt numbed and dejected and humiliated and embarrassed in work and with his family.  He also felt it placed him in a very difficult position with regard to his fellow employees.

18.	Mr Leckey also pointed out that the respondent had not applied the standard procedures and that it had admitted as much eventually in a letter to him.  He suggested however that the further procedure adopted was still flawed because among other things no interviews were held for the post.  The applicant was convinced that the selection criteria was manipulated in order to confirm the decision already taken in March.

19.	The Tribunal having considered the evidence, both documentary and oral and the submissions, concluded that the applicant had not established that he had been unlawfully discriminated against on the grounds of religious belief or sex.  The Tribunal accepted that both the applicant and Ms McShane had the qualifications and experience to do the job of floor manager.  

20.	The Tribunal was in no doubt that the applicant had suffered a detriment in being informed that he was going to be demoted and that any reasonable employee would have considered that this situation and its subsequent confirmation put him at a disadvantage with regard to his position in work from the time he was made aware of the respondent’s intention with regard to this.

21.	The Tribunal was surprised at the respondent’s lack of established procedure for dealing with this type of situation and the amateurishness of the documentation on which the selection exercise was based.  In this regard the Tribunal noted in particular the respondent’s inability to produce the actual absence records on which Ms Brunt based her assessment of the floor managers’ sickness records.  However, it is well established that inadequate or flawed procedures are not sufficient of themselves to merit a finding of unlawful discrimination on any grounds.  The Tribunal was satisfied with the explanations given by the respondent’s witnesses as to the reason why the applicant’s position was selected to be downgraded being the failure of the department which he managed to meet its targets.  The Tribunal also accepted that the further selection method adopted had the merit of being as objective as any such process can be.  The Tribunal was therefore not satisfied, even having borne in mind Article 38A of the Fair Employment and Treatment (Northern Ireland) Order 1998 and Article 63A of the Sex Discrimination (Northern Ireland) Order which both deal with the burden of proof, that the selection of the applicant to be downgraded was on the basis either of religious belief or sex.  

Chairman:

Date and place of hearing:  3 and 4 February 2004, Belfast

Date decision recorded in register and issued to parties: