FAIR EMPLOYMENT TRIBUNAL

CASE REF:   389/04 FET

CLAIMANT:		Wesley Boyd

RESPONDENT:		John Graham (Dromore) Ltd

DECISION

The unanimous decision of the Tribunal is that the claimant was not discriminated against by the respondent on the grounds of his religious belief and/or political opinion in and around the failure of the respondent to offer him a job.

Constitution of Tribunal:
Chairman:		Ms Crooke
Members:		Mr McGuire
			Ms Heaney

Appearances:
The claimant was represented by Mr P Colhoun, Solicitor, of Andrew T Armstrong & Co, Solicitors.
The respondent was represented by Mr J Dunlop, Barrister-at-Law, instructed by McGrigors Belfast, Solicitors.

Sources of the evidence

1.	The Tribunal heard evidence from the claimant on his own behalf.  The Tribunal heard evidence from Mr Karl Teggarty and Mr Ian Balmer of the respondent company.  In addition the Tribunal had a bundle of documents before it.

The claim and the defence

2.	The claimant contended that by the failure of the respondent to offer him a job with the respondent as a labourer/driver was discrimination against him on the grounds of his religious belief or political opinion because the successful candidate was a member of the Roman Catholic community.  The respondent denied this and stated that they had engaged the best person for the job.

The relevant law

3.	The relevant law applying to this case is found in the Fair Employment and Treatment (Northern Ireland) Order 1998.  

Facts found

4.	The claimant applied for the job of driver/yard labourer with the respondent which was advertised in the “Dromore Leader” on 7 July 2004.  It was also a position that was advertised in the “Ulster Star” and the “Banbridge Chronicle” and both Job Markets in Banbridge and Lisburn.  

5.	The claimant was not successful in his application, but a member of the Roman Catholic community was successful.

6.	The claimant contended that he was better qualified for the job and that the successful candidate only was successful in the job because:-

(a)	the company wished to positively discriminate in favour of the Roman Catholic community to improve its relative percentages of persons employed from both sides of the community; or

(b)	because the successful candidate had a sister working in the respondent company.

7.	The respondent adopted an objective and disciplined procedure for the recruitment of the successful candidate.  There were five applicants for this job and all five were to be interviewed.  In the event only three persons attended for interview and all were interviewed.  The respondent interviewers – Mr Teggarty and Mr Balmer – each filled in an interview score sheet and they followed a pro forma summary of interview questions upon which they briefly noted the answers given.  Then the next day, Mr Teggarty completed the yard labourer/lorry/van driver interview scoring to assess percentage scores for the candidates.

8.	The only issue that the claimant had with the questions asked was that he disputed the allocation of zero points to the fitness section of the interview scoring.  He accepted, in cross-examination, that all the other scores allotted had been the best he could possibly get.  In the event, the Tribunal found that the allotting of zero points for fitness did not alter the overall outcome in favour of the successful candidate as the total allotted to the claimant was 174 points but the successful candidate received 186 points.  There was a maximum of five points to be allocated under the category of fitness.

9.	The claimant and both interviewers were all from the Protestant community.  In the scoring of the successful candidate and the claimant, Mr Teggarty awarded both candidates exactly the same score of 57 and Mr Balmer awarded the successful candidate five points less than he awarded the claimant.  The claimant received 46 points and the successful candidate received 41 points.  The difference in outcome was accounted for by the response to the interview questions.

10.	No evidence was adduced to show that the claimant was better qualified or more experienced in HGV driving.  The Tribunal noted that the claimant had some fifteen years of experience compared to three years of experience of the successful candidate, but the respondent indicated that it did not consider the issue of qualifications and experience solely in relation to time spent.

11.	The Tribunal did not find anything worthy of comment in the dating and placing of the advertisements for the job.  

12.	All the interviews took place on the same day which was 5 August 2004 and Mr Teggarty did a tally of the categories on the next morning, which was 6 August 2004.  The outcome of this was that the successful candidate was notified on that day by telephone and started in-post on 16 August 2004.  The claimant was notified that he was unsuccessful on 18 August 2004.

13.	The Tribunal did not find that the successful candidate having a sister or sisters working in the respondent company had any bearing whatsoever on the appointment of the successful candidate.

Analysis of evidence and conclusions

14.	In general where there was a dispute in the evidence, the Tribunal preferred the evidence given by the respondent’s witnesses as it was fair and logical.  The claimant’s evidence did not survive scrutiny and the Tribunal found that there was no basis for the contentions he advanced.

15.	Having carefully considered all the evidence, the Tribunal found nothing to suggest that the successful candidate had been recruited on the basis that his sister or sisters had any input into the decision.  This contention was not even put to the witnesses for the respondent.  The Tribunal found nothing of concern in the timing of the advertisement and its closing date in relation to when the respondent was open as it was not contested that the respondent’s administrative staff continued to work throughout the ‘builders’ fortnight’.  The job was advertised in a paper which the claimant admitted reached both sides of the community.  The claimant disputed this.  The job was advertised in both the Job Markets in Lisburn and Banbridge and indeed also in two newspapers.  The Tribunal found that the successful candidate was interviewed along with the other two applicants and made no finding upon when the successful candidate gave his notice to his previous employer.  This was because it was custom and practice in the respondent company to have the successful candidate in-post for some days before the unsuccessful candidates were notified of the result.  

16.	In conclusion, we find that the respondent recruited the best person for the job as is required by law.  The Tribunal did not find any facts from which discrimination could be inferred so the question of the shifting burden of proof does not arise in this case.

Chairman:

Date and place of hearing:	3 – 4 July 2006, Belfast

Date decision recorded in register and issued to parties: