CASE REFS: 76_04FET
CLAIMANT: Dolores Gorman
RESPONDENT: Northern Ireland Housing Executive
The unanimous decision of the Tribunal is that the claimant was not victimised by the respondent contrary to the provisions of the Sex Discrimination (Northern Ireland) Order 1976.
Constitution of Tribunal:
Vice President : Mrs Price
Members: Doctor T G Cradden
Mr M Gallagher
The claimant was represented by Mr Brian McKee, Barrister-at-Law, instructed by Campbell Stafford, Solicitors.
The respondent was represented by Mr Michael Long, Queen's Counsel, instructed by Jones & Cassidy, Solicitors.
A person ('the discriminator') discriminates against another person ('the person victimised') in any circumstances relevant for the purposes of any provision of this Order if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons and does so by reason that the person victimised has:-
(a) brought proceedings against the discriminator or any other person under this Order or the Equal Pay Act or Part I of Schedule 5 to the Social Security (Northern Ireland) Order 1989, or Article 62 to 65 of the Pensions (Northern Ireland) Order 1995; or … (b), (c), (d).
(1) This Article applies to any complaint presented under Article 63 to an Industrial Tribunal.
(2) Where on hearing the complaint, the complainant proves fact from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent has:-
a. committed an act of discrimination against the complainant which is unlawful by virtue of Part III; or
b. is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination against the complainant.
The Tribunal shall uphold the complaint unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having committed that act.
1. A degree or equivalent third level qualification plus at least five years relevant experience.
2. Exceptionally candidates who do not meet the qualification requirement but who can demonstrate that they have 10 years relevant experience may also be considered.
3. Relevant experience will be determined by reference to one of the following competency areas:-
A. Experience of fulfilling a senior role as a member of a management team in a Strategic Partnership function or a District Office with responsibility for accounts, housing benefit, allocation or maintenance of homes.
B. Experience of fulfilling a senior role in the management of planned maintenance or improvement programmes.
C. Experience in the development of housing strategy or policy.
D. Experience of fulfilling a senior monitoring role in respect of the principal H&R functions which would provide the candidate with a working knowledge of those functions.
E. Experience of fulfilling a senior role in the purchase or disposal of housing, land or commercial property.
F. Experience of fulfilling a senior role in corroborative working with partners in the furtherance of improvement of housing services in Northern Ireland.
G. Experience of fulfilling a senior role in the delivery of supported housing or housing support services.
At the bottom of the trawl notice it was highlighted that:-
"It is the responsibility of each candidate to ensure that all information is included on the application form. Candidates who fail to provide sufficient information on which a panel might determine their eligibility for the post will not be short listed. For this reason accurate dates of tenure of relevant posts must be provided on the application form."
"Appointments panel will be convened in connection with all recruitment exercises. The panel will be responsible for agreeing the employees specification, short listing, interviewing and the selection of candidates."
At short listing it states that:-
"The appointments panel will short list candidates on the basis of the job/grade requirements required."
"I attach a summary of the preliminary short listing which I have conducted. This gives the qualifications and experience of each applicant identified only by their applicant number. This will allow us to ensure that anyone excluded for consideration cannot claim that any panellist, except me, decided not to short list them for a reason unconnected with their qualifications or experience."
The letter written by Mr O'Hea to the claimant
Candidate 53, Mrs Myles-Davey; and
Candidate 88, Mr Andrew Barbour.
Candidate 53 – Mrs Myles-Davey
Candidate 88 - Mr Andrew Barbour
"A small number of cases were considered to be borderline and if excluded would probably be the subject of appeals. The purpose of this note is to set out the likely appeals and their potential grounds and allow you to comment on these anonymously, potentially avoiding the situation where an appeal succeeds but where we have a disenchanted applicant (Candidates 53 and 88)".
"A small number of applicants came close to satisfying the five or ten years experience requirement, requiring only months to be considered eligible. In instances the applicants are currently acting to Level 7 positions and have provided details of previous periods of acting-up. Given that they have been asked to act on more than one occasion it appears illogical to now indicate that they are ineligible. If we hold this line I suspect that we should re-visit the procedure for selecting staff to act-up, requiring managers to assess eligibility. This will seriously limit our options."
"I have carefully considered the points outlined in your memo. In so doing, I am conscious that this is the first Level 7 divisional (ie H&R plus strategic partnerships) trawl that we have run in the context of the new policy on appointments and promotions. It is clear that the short listing process in this respect has given rise to genuine issues in relation to eligibility. I am also basing my considerations on the fact that the cases referred to represent the 'close-calls' and that there is clear blue water between these cases and those for whom the short listing decision is much clearer – 53 and 88. There is, in my view, a substantial case that these candidates should be short listed in light of their length of experience in Housing. It suggests that we really need to review length of experience requirements in future trawls."
"Maurice's response which I have forwarded by hard copy for information can be briefly summarised as follows in respect of the concern:-
1. The recent move to divisional boarding has resulted in these applicants now being ineligible for promotion. They would have been short listed for a generalist board.
Maurice has indicated that he would, on appeal, be sympathetic to a case presented by such applicants. In light of this I have asked recruitment to issue invitations to the two officers concerned."
The claimant's application form
Findings from facts found by the Tribunal
"The evidence we have heard in this case shows an organisation where the attitude of managers to recruitment exercises had become very casual and slack."
Conclusions from facts found
"The amendment in relation to the Burden of Proof Regulations require the Tribunal to go through a two-stage process. The first stage requires the claimant to prove facts from which the Tribunal could, apart from the section, conclude in the absence of an adequate explanation that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant. The words 'in the absence of an adequate explanation' followed by 'could' indicate that the Tribunal is required to make an assumption at the first stage which may be contrary to reality, the plain purpose being to shift the burden of proof at the second stage so that unless the respondent provides an adequate explanation the complainant will succeed."
Taking the guidance from this decision in Igen, the Tribunal finds that the claimant has shifted the burden of proof to the respondent. She had committed a protected act and she was not short listed, and could point to other people who were short listed ahead of her and who did not appear to meet the relevant criteria as well as not having committed protected acts.
(i) The classification of the post was unclear and ambiguous. The respondent said that this recruitment exercise was divisional, they did not highlight that on the internal trawl at any place and they did not provide divisional guidance for divisional posts. However, the Tribunal accepts that Mr Jennings and Mr O'Hea were quite clear in their interpretation that these were divisional posts.
(ii) The panel did not meet together. The Tribunal accepts that this is not the normal process. We did accept from the evidence that the respondent had a large number of candidates as a result of the trawl and that they were senior grade personnel who had to do the short listing. It was not possible for them to all meet together. We accept that Mr O'Hea had by far the most important role in this short listing exercise. Whilst the other short listers were experienced people and we accept that they took their roles seriously, they did not have the opportunity to short list every candidate and they relied on Mr O'Hea to provide a sample of those already short listed for consideration. This is not the best method. We accept that they did consider the persons who were not short listed, including the claimant, and they gave their reasons for not short listing her in a clear and truthful manner.
(iii) Mr O'Hea did not take any notes of short listing, neither did any of the other short listers. The Tribunal finds this surprising because of the numbers and the different days of meeting. It is not good practice, but we can not go so far as to say that there is an inference of discrimination by the lack of notes.
Failure to follow the panel's own criteria
(a) The short listing was to be carried out on the basis that the panel would only rely on the evidence presented on the application form.
(b) That the panel would treat experience of Level 5 and above as senior.
(c) That no candidate would be short listed if they did not satisfy the competency criteria on their application form. They clearly did not do this because Mr O'Hea used information which was not on Candidate 90's application form (Michael Kavanagh). Candidate 53, Mrs Myles-Davey, and Candidate 88, Andrew Barbour, did not have the requisite experience, but they were short listed. The explanation given for this was that both Candidates 53 and 88 had been acting-up to a Level 7. Both had the requisite experience which was rounded up from over nine years to ten, because they had substantial experience at Level 4 in the relevant areas. The most worrying factor about these changes from procedure is that Mr O'Hea decided to go directly to Mr Jennings who would have conducted an appeal and to seek his opinion before the short listing had finished. Mr Jennings should never have given an opinion at this stage. It was completely outside any normal appeal process and the Tribunal criticises both Mr O'Hea and Mr Jennings for this procedure. Mr Jim Smyth quite rightly, in the Tribunal's opinion, drew attention to the criteria of 10 years relevant experience and in common parlance he did not want to go along with this procedure adopted by Mr Jennings and Mr O'Hea.
The respondent's explanation
Motive of Mr O'Hea
Date and place of hearing: 30 – 31 January 2006, 1 – 3 February 2006, Belfast
Date decision recorded in register and issued to parties: