FAIR EMPLOYMENT TRIBUNAL

CASE REFS:   76/04 FET
458/04

CLAIMANT:		Dolores Gorman

RESPONDENT:		Northern Ireland Housing Executive

DECISION

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

Appearances:
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.

The issue

1.	The claimant alleges that she has been discriminated against by way of victimisation, contrary to the provisions of Article 6 of the Sex Discrimination (Northern Ireland) Order 1976, in that she was not short listed for the Level 7 Housing & Regeneration or Strategic Partnerships Board in December 2003.  Article 6(1) states:-

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).

2.	In order to succeed the claimant must prove that she carried out a protected act and that she was treated less favourably than a comparator by reason of the protected act.  The burden of proof may shift from the complainant to the respondent in circumstances as set out under Article 63A of the 1976 Order which states:-

(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.

Agreed fact

3.	Having heard evidence from the parties, the Tribunal finds as a common issue of fact that the claimant issued proceedings against the respondent in 1999.  Those proceedings alleged discrimination on the grounds of sex and/or religious belief by the respondent in the course of two separate recruitment exercises.  It is common case that the claimant produced a handwritten letter from Ian O’Hea during those proceedings and the proceedings had not concluded at the time that the recruitment exercise, with which this Tribunal is concerned commenced.  The Tribunal is satisfied that the claimant had demonstrated a protected act in relation to her claim of victimisation.

4.	In this application, the claimant alleged that Mr Ian O’Hea had a motive to discriminate against her because of her previous claim to the Tribunal.  He is a Personnel Manager with the Northern Ireland Housing Executive and has held the position since 1990.

5.	The Tribunal accepted, from the evidence, that the Housing Executive is structured into five divisions, including the Corporate Services Division and the Housing & Regeneration Division.  Housing & Regeneration is the largest division within the Executive responsible for the delivery of housing services through 37 district offices.

6.	Mr O’Hea was asked to organise a recruitment exercise to appoint Principal Officers to a number of positions across Housing & Regeneration Division.

7.	The Tribunal accepted that in the past, posts at this grade, namely Grade 7, had been filled from ‘generalist boards’.  Mr Frank McGuigan, a colleague in Personnel, had also been asked to recruit for Level 7 posts in Strategic Partnerships Section of the Corporate Services Division.  The recruitment exercise was to cover these Grade 7 posts.

8.	A trawl notice was posted on 25 September 2003 with a closing date of 16 October 2003.  Whilst the respondent alleged that this was a new divisional post, the Tribunal accepted that there was no specific mention of this on the trawl notice.  The Tribunal accepted that the trawl notice gave the following criteria:-

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.”

9.	The Tribunal was referred to the updated handbook on personnel policy which stated that divisional posts, which were classified, were posts at Level 5, 6 and 7 which require specific skills and experience in relation to the particular divisional function.  The Tribunal also referred to Paragraph 9 of the personnel handbook which related to appointment panels.  It states at 9.1:-

“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.”

10.	From the evidence in this case, the Tribunal is satisfied that Mr O’Hea and his assistant conducted the preliminary short listing.  This is corroborated by a memo from Mr O’Hea dated 10 November 2003, in which he contacted the other members of the short listing panel to say:-

“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.”

[Tribunal underlining]

11.	The Tribunal accepts from the evidence that there was no joint meeting of all the short listers.  Mr O’Hea met Mr Smyth, a fellow personnel officer, in McAllister House, Omagh, on 11 November 2003 and they went through the matrix which had been drawn up and provided by Mr O’Hea.  They conducted a random search of those who had been successfully short listed and considered those that had not been short listed.  He stated that this process was carried out again by him with Mr O’Connor and Mr Jackson in the Wellington Park Hotel on 12 November 2003 when the two men named were at a training conference.  He carried out an exercise again on 17 November 2003 with Mrs Ferran in the Housing Centre and a further meeting with Mrs Campbell on 24 November 2003.

12.	The Tribunal accepted that there were 93 applicants for the trawl process and that two panels were drawn up for the purposes of interviewing.  The Tribunal accepts as fact that Mr Jim Smyth, Personnel Officer, was most concerned about being on a selection and recruitment exercise involving the claimant, Mrs Gorman, because he had been directly involved in her earlier Tribunal case which was still ongoing and in which no decision had been issued.  He expressed his concerns to Maurice Jennings, Assistant Director of Personnel, and to Mr O’Hea.  Mr O’Hea had been involved with another applicant called Mrs Henry who made a claim to an industrial tribunal and as a result it was decided that neither Mr O’Hea or Mr Smyth should sit on interview panels involving either of those applicants, if they were short listed.

The letter written by Mr O’Hea to the claimant

13.	The claimant asserts that Mr O’Hea’s motive for treating her in the way that he did related to a letter he had written to her in 1993.  The Tribunal was shown this letter which we understand was also introduced in evidence in her other claim to the Tribunal.  The letter was written in 1993 by Mr O’Hea to the claimant when she had returned from a holiday in America.  It was encouraging her to apply for a post in personnel and he alluded to the fact that she should get the post.  There is no other evidence before the Tribunal that the production of this letter angered Mr O’Hea.  His evidence to the Tribunal was truthful on this point and by seeing the letter it prompted his memory of writing it.  The Tribunal does not find that this motivated him to discriminate against her.  The matter which is of more concern to the Tribunal is that he accepted he knew the names of the candidates, including the claimant, who were applying for these posts and we accept that he would have been fully aware of her ongoing tribunal proceedings in relation to a previous recruitment exercise.

14.	The Tribunal does not find that Mr O’Hea did cover the names of the candidates from the short listers.  We accept that he compiled a matrix, that there were numbers on the various applicants’ application forms which he used in his matrix, but we do not accept that the names were obscured for the short listers.  We think Mr Jackson’s evidence is the truth on this point and that the short listers were quite able to see the names of the various candidates, if they wished to do so.

15.	The claimant makes no criticism of the specific competences required for the two posts in issue, and there was no complaint made by the claimant that they were deliberately drawn up so as to disadvantage her.  She maintained throughout the case that she met the required competences.  She alleged the short listers, and Mr O’Hea in particular, went out of his way to find out additional information for some candidates, but not for her.  She identified those candidates as:-

		Candidate 53, Mrs Myles-Davey; and

		Candidate 88,  Mr Andrew Barbour.

Candidate 53 – Mrs Myles-Davey

16.	The Tribunal considered firstly, Mrs Myles-Davey’s application form.  We accepted that she did not have a degree and therefore it was essential that she had 10 years experience.  Mr O’Hea’s grid had a mark for her of 7.5 years but was then changed to 9.66 years by Mr O’Hea after discussion with the panel.  He stated that he realised that         Mrs Myles-Davey’s experience ran continuously from 1994 until the closing date of the trawl in October 2003 and during this time she had held posts from Levels 5 to 7 in a relevant housing function.  In his witness statement, Mr O’Hea stated that he now realised that his calculation of 9.66 years was wrong and it should in fact have been 9.4 years.  He referred her application to Mr Jennings, Assistant Director of Personnel, along with Candidate 88, Mr Andrew Barbour, for a decision on short listing.  The Tribunal noted, as fact, that Mr Jennings was not part of the short listing panel, but was in effect Mr Smyth and Mr O’Hea’s boss.

Candidate 88 - Mr Andrew Barbour

17.	The Tribunal considered his application form and accepted that he was credited with nine years and five months relevant experience.  This did not enable him to be short listed under the criteria given, namely 10 years experience in a relevant discipline.  Mr O’Hea who took the main responsibility for short listing, received further information about Mr Barbour being seconded in 1992 to 1994 to the Newtownards Branch Office.  It would appear that that experience was counted as well. 

18.	The Tribunal found that Mr O’Hea went outside the normal short listing procedure and sent a memo to Maurice Jennings on 26 November 2003.  He made the following statement in the memo:-

“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.”

19.	The Tribunal accepted that the reply came from Mr Jennings on 27 November 2003:-

“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.”

20.	There was a memo from Mr Smyth to Mr O’Hea in relation to the earlier query.  Mr Smyth stated that in his view “if any candidate does not meet the required years relevant experience as determined by reference to the competencies areas then they should not be short listed”.  He stated that the fact that any candidate would have been short listed under a different trawl is regrettable and unfortunate.

21.	Mr O’Hea contacted all the short listing panel on 18 December 2003 and highlighted that:-

“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.”

22.	It was as a result of this memo that Mr Smyth sent in his objection.  The two candidates, 53 and 88, were short listed.

The claimant’s application form

23.	The Tribunal had an opportunity to see the application forms of candidates who were considered to be comparators in this exercise.  We also looked at the claimant’s application form.  We noted that her application form was succinct in the information that it provided.  She set out her work from 1987 to present and it was entitled ‘Facilities Services’.  

24.	In her witness statement she gave evidence in relation to the work that she did and the Tribunal accepted that her work was mainly, if not exclusively, related to offices and facility requirements centred around such accommodation, as well as some land and property acquisitions in the period 1981 to 1987.  She drew attention to her work with Health & Safety policies, but again the Tribunal accepted that that was in relation to personnel and office accommodation.  She drew attention to working with a Health Promotion Board which she termed as strategic partnership.  The Tribunal considered further information in relation to this and accepted that it was more of a research project with the body that met quarterly.  

25.	The Tribunal compared her application form with a number of other application forms and it also looked at the trawl notice where candidates were encouraged to include all information.  This is usually required in an application form to enable candidates to ‘sell themselves’ to the recruitment panel.  Having considered the claimant’s application form, the Tribunal is satisfied that she did not set out the information as fully as she could have done in relation to her career with the respondent.  However, we understand the submission made by the claimant that she thought the panel should know about her experience.  

Findings from facts found by the Tribunal

26.	The Tribunal is aware of, and was directed to, an earlier decision where the claimant had brought claims against the same respondent in relation to a recruitment exercise.  That Tribunal in its decision had stated, at Paragraph 11:-

“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

27.	The Tribunal considered the case of Igen Limited  v  Wong [2205] IRLR 259 and considered the following guidance given by the Court of Appeal:-

“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.

28.	The second stage which then comes into effect requires the respondent to prove that it did not commit, or is not to be treated as having committed, the unlawful act.  If the second stage (as in this case) and the respondent’s explanation is inadequate it will be not merely legitimate, but also necessary for the Tribunal to conclude that the complaint should be upheld.  The Tribunal in this case did consider the actions of the respondent very carefully and has criticised them for their slack interpretation of the procedures.  

29.	Counsel for the claimant set out the failure of the procedures in his written submission and the Tribunal has adopted them in this decision:-

(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.

30.	Having looked at this method of short listing, the Tribunal has to go on to see whether Mr O’Hea in fact was, as the claimant submits, victimising her.  We do not find such evidence and we do not draw the inferences which would amount to victimisation.

The respondent’s explanation

31.	All the short listers who gave evidence to the Tribunal drew attention to the very salient fact that the claimant did not have housing experience.  Her relevant experience was all in the field of office facilitation and office management.  She attempted to show the Tribunal that her relevant experience could be transposed into the housing context, but we are satisfied that given the relatively scant information she put on her application form, and some of the short listers working knowledge of the claimant’s work, they knew that she did not have the relevant experience in the Housing and Regeneration area.  She wanted to show the Tribunal that she had experience of strategic partnership working, but we accept that she did not have this experience to the level which was required.  We are satisfied that the criteria on the trawl demonstrated that the experience had to be in a housing related function and the claimant did not have this.  She asked the Tribunal to consider whether the respondent should have credited her with this experience from their own knowledge of her work.  However the Tribunal accept that the short listers were quite truthful when they said she did not have the relevant experience in the housing sector of the business.

Motive of Mr O’Hea

32.	The Tribunal does not find direct evidence that Mr O’Hea was intent on victimising the claimant because she had brought another claim to the Tribunal.  He was aware of the claim and he was also aware of a similar claim by Mrs Henry and the Tribunal is satisfied that he did not go out of his way to refuse to short list the claimant because she had brought a claim.  The fact that Mrs Henry was short listed bears this out.  We are satisfied that Mr Smyth and Mr O’Hea knew that the claimant had brought previous proceedings and indeed some other short listers may have known this as well.

33.	There was no evidence produced before this Tribunal to show that there had been any history of bad feeling between Mr O’Hea and the claimant at any time before this hearing.  In fact the claimant had worked with Mr O’Hea and did not make any complaint about their working relationship.

34.	We have considered the respondent’s explanations for the treatment very carefully because of their failings in this short listing procedure.  It was an exercise which gives no credit to the Human Resources Department of the respondent’s organisation and we can only hope that there has been an overhaul and tightening of all procedures since this claim was brought.  However, we have considered the poor standard of the claimant’s application and the criteria and requirements specified for the posts.  She did not demonstrate that she met those criteria and it was for that reason that she was not short listed by any of the short listing panel.  We have accepted the reasons put forward by the respondent for its actions in not short listing the claimant and we dismiss this application.

Vice President:

Date and place of hearing:	30 – 31 January 2006, 1 – 3 February 2006, Belfast

Date decision recorded in register and issued to parties: