FAIR EMPLOYMENT TRIBUNAL
CASE REFS: 85/09 FET
CLAIMANT: Paul Growcott
RESPONDENT: Home Office
The unanimous decision of the Tribunal is that the claimant’s claims for race discrimination, religious belief discrimination and political opinion discrimination are dismissed. The claimant’s claim for age discrimination is well-founded and the Tribunal awards the sum of £1,500 to the claimant.
Constitution of Tribunal:
Chairman: P Kinney
Members: J A Kerr
The claimant was represented by Mr Potter, Barrister-at-Law, instructed by Thompsons McClure, Solicitors.
The respondent was represented by Mr Wolfe, Barrister-at-Law, instructed by Crown Solicitor’s Office.
1. The issues to be determined by the Tribunal are as follows:-
(1) Did the respondent subject the claimant to less favourable treatment on the grounds of age contrary to the terms of Article 3 of the Employment Equality (Age) Regulations (Northern Ireland) 2006 (‘the 2006 Regulations’).
(2) Did the respondent subject the claimant to harassment on the grounds of age contrary to the terms of Article 6 of the 2006 Regulations.
(3) Did the respondent subject the claimant to less favourable treatment on the grounds of religious belief and/or political opinion contrary to the terms of Article 3 of the Fair Employment and Treatment (Northern Ireland) Order 1998 (‘the 1998 Order’).
(4) Did the respondent subject the claimant to harassment on the grounds of religious belief and/or political opinion contrary to the terms of Article 3A of the 1998 Order.
(5) Did the respondent subject the claimant to less favourable treatment on racial grounds contrary to the terms of Article 3 of the Race Relations (Northern Ireland) Order 1997.
At the outset of the hearing, the respondent’s title was amended, by consent, to Home Office.
Findings of fact
2. The claimant was employed by the respondent in the Identity & Passport Service (‘IPS’) in April 2007. He was employed at the entry level grade of PO1. This grade is analogous to the AA grade in the Northern Ireland Civil Service. He had previously spent approximately 25 years working for Ford, and was a Senior Procurement Analyst there for 11 years. He worked in the IPS post room. He was part of a team of three to five and they enjoyed good working relationships. The claimant is perceived as a Catholic.
3. He is an active trade unionist and in the IPS is treasurer of the Belfast Branch of the Public Commercial Services Union. He was visibly active in strike action taken at IPS in July 2008 and attended the picket line for the two days of strike action.
4. The claimant applied for a post at PO3 level in Procurement, the area in which he had considerable experience from his time at Ford. It is from this recruitment and selection process that most of the issues arise.
5. The claimant was shortlisted for interview for the PO3 post. He was asked to acknowledge and confirm his attendance at interview which he did by e-mail to Richard McCormick, the HR Scheme Administrator, at 9:01 on 12 September 2008.
6. At 9:02 on 12 September 2008, one minute later, Richard McCormick e-mailed back:-
“U r to old.”
The claimant told the Tribunal he was astounded by the e-mail. He said he was shaken and considered the comment vicious and a kick in the teeth. He said he felt it was calculated and designed by Mr McCormick to let the claimant know Mr McCormick felt he was too old for the job. The claimant said he was devastated. He thought it was a very mean thing to do.
7. The Tribunal has heard various subjective descriptions of the relationship between Mr McCormick and the claimant. The Tribunal find on the evidence before it that there was a friendly relationship based largely in the workplace. Richard McCormick would attend the post room most mornings for 15 – 20 minutes and regularly met and chatted with the claimant there. Both the claimant and Mr McCormick characterised their conversations as ‘banter’, where humour was used by both.
8. There had been an earlier incident involving the claimant when he played in a staff football match in June 2008. Mr McCormick was also playing. Photographs were taken of the players, including the claimant. These photographs were photos hopped, ie altered by computer software. In the claimant’s case, his hair was greyed and he was described as ‘Ravenelli’ (an Italian footballer with distinctive grey hair). These photographs were put on the respondent’s intranet by a member of the Communications Department and were circulated. They were received in the post room and by the claimant. The claimant took no action and made no complaint.
9. The claimant did not discuss or raise the subject of the e-mail with Mr McCormick. He did not separately use any of the internal procedures to raise it with the respondent. He did not raise it during his appeal and the recruitment process. He first raised it in his grievance relating to the handling of his appeal in December 2008, some three months later. The relationship between the claimant and Mr McCormick did not change in the intervening months and the allegation made against him by the claimant came as a surprise to Mr McCormick when he was interviewed during the grievance process.
10. Mr McCormick received an informal caution in relation to the matter from the HR Manager, Ms Cosgrove. He was warned any repeat would be dealt with more severely. He had sent no other such e-mails to the claimant or to any other person. He regarded the e-mail as a spontaneous action and part of the ongoing ‘bantering’ relationship with the claimant and others.
11. The selection panel for the post was composed of Andrew McCabe and Ruth Waltham. Mr McCabe is an Executive Officer in the Procurement Section of the IPS in Belfast. The post in question was a support role for him. Ms Waltham was an Executive Officer in Procurement at the time of the interview. She was based in Peterborough. She had never worked in Belfast but had attended a Procurement Workshop there. She had met Mr McCabe on four or five previous occasions at Procurement Workshops. She is English and the respondent classified her religion as non-determined. Mr McCabe is from Northern Ireland and is classified by the respondent as Protestant. Both had received recruitment/ selection training.
12. Mr McNiece, the Facilities Manager of the respondent in Belfast (and Mr McCabe’s manager) was asked to create the job description and the criteria for the post. Mr McNiece viewed the role as clerical support for Mr McCabe and day-to-day cover in Mr McCabe’s absence. The essential criteria focused on communication skills, the ability to create and maintain good working relationships and to manage and prioritise workloads.
13. The respondent’s policy required that the selection panel is normally composed of two members. One must have direct knowledge of the work of the vacancy, in this case Mr McCabe. The other panel member should be from outside the work area (ie outside Procurement) and be from a different region. The policy states that every effort must be made to find external panel members, especially for a selection process involving internal applicants and if unable to do so must contact the Head of HR providing justification for an exception to that procedure. The policy goes on to provide that where possible, both sexes and members from ethnic minorities should be represented on panels and for Belfast boards both communities.
14. In this case, Ms Waltham came from the same work area. She had been directly contacted by Mr McCabe to see if she could sit on the panel and to confirm dates for availability. This information was then passed to HR to process the appointment. The Tribunal heard evidence from several witnesses and finds as a fact that the priority in establishing the composition of the panel was to obtain a panel member from another region and little regard was had to the work area of the individual. It was also common that informal approaches were made to individuals before a general request was sent out for possible panel members. Ms Waltham’s religion was perceived by the respondent as non-determined. All of the respondent’s employees outside Northern Ireland are classified as non-determined.
15. Three candidates, including the claimant, were invited to interview. The panel agreed questions to explore the essential criteria and these were asked of all candidates. The desirable criteria for the job were not tested. The panel marked each of the four essential criteria individually. Notes were recorded whilst the candidate was present. The individual panel member marked each answer on a scale of zero to four. Zero-one fell short of the required level. A score of two met the required level, three was strong achievement of the selection criteria and four was outstanding evidence. The panellists also marked five categories of ‘valued behaviours’ on the same marking system. These behaviours were not the subject of separate questions, but marked on the assessment of the answers to the questions on the essential criteria. The panel members then consulted each other and arrived at an agreed panel mark for each category. The panel should have created an average mark in the valued behaviours section, but in fact aggregated their marks.
16. The interviews took place on 25 September 2009. The claimant was scored uniformly at twos (ie he met the required level) by Ruth Waltham on all criteria. Mr McCabe scored the claimant with twos in three of the four essential criteria. In the last he scored the claimant with three. After discussion with Ms Waltham the agreed panel mark was two in all criteria.
17. Mr McCabe initially scored four of the five valued behaviours at three. He subsequently, before discussing his marks with Ms Waltham, scored-out the marks in three of the boxes and replaced the scores of three with scores of two. This left one remaining score of three. The agreed interview mark in four areas was two, but in the last, where Ms Waltham had scored two and Mr McCabe scored three, the agreed mark was three.
18. Both Ms Waltham and Mr McCabe in their evidence confirmed that Mr McCabe amended his scoring before any panel discussion took place. This was supported by the evidence of Ms Cosgrove. She was the HR Officer responsible for the scheme. She asked Mr McCabe about the irregularities in marking when the papers were received by HR later that day. He told her at that time the amendments were made before discussion with Ms Waltham. The Tribunal accepts Mr McCabe’s evidence in this point.
19. Mr McCabe explained that he reviewed all his marks when he had completed them. He considered that his marks on the valued behaviours criteria were too high when viewed against the marks he had given on the essential criteria. On review, he revised his marks on three categories.
20. The successful candidate achieved higher scores at interview. Ms Waltham scored him with three scores of three and one of two in the essential criteria and four scores of three and one of two in the valued behaviours. Mr McCabe scored him four scores of three in the essential criteria and five scores of three in the valued behaviours. The agreed panel mark was threes in all categories.
21. The panel concluded the successful candidate should be offered the post. The panel also concluded that the claimant had met the required level and should be placed on the merit list.
22. Both panel members explained their assessment of the candidates at interview. Ms Waltham felt that whilst the claimant performed well and could answer the questions put to him he did not fully demonstrate his own particular involvement in his examples – what he said, what he did and what the outcome was. He referred frequently to the examples on his application form. There were no questions specifically addressing experience and procurement. His examples were mainly taken from his procurement experience and Ms Waltham felt he could have brought out more of his current experience. His answers were more stilted and set in bullet-point form. The successful candidate answered the questions posed more fluently and demonstrated his own personal involvement in each example.
23. Ms Waltham was unaware of the claimant’s religion or his trade union background and trade union activity.
24. Mr McCabe said the claimant relied heavily on his experience at Ford but did not drill down to the specific detail of his own involvement in examples. He relied on the examples given on his application form and did not give enough detail, even when encouraged to do so by the panel. He did not always answer the precise question asked. There was the potential for the claimant to have scored higher if he had given more specific detail in his answers. Nevertheless the claimant was a good candidate who had a good interview. The successful candidate gave answers that demonstrated his role in innovation and organisation. He evidenced pro-activity and provided more detailed answers.
25. Mr McCabe was aware that the claimant was a Catholic. He was also aware of his trade union involvement. Mr McCabe had been in the trade union for six or seven years. He was not opposed to the trade union, which he perceived to be there to serve the greater good of members. He left the union sometime before the strike in July 2008 but could not be specific about when he left.
26. The claimant also applied for another PO3 post in Customer Services. The interview for this post was conducted the day before the interview for the Procurement post. There were different job descriptions, different essential criteria, different panel members and questions. It was a separate process.
27. The claimant appealed the selection process. Under the respondent’s policy the appeal must be lodged within 28 days of the date of the result letter. The appeal should be acknowledged within three working days of receipt and a substantive response normally provided within 18 working days of the appeal being acknowledged.
28. The claimant appealed on 8 October 2008 by e-mail. It was acknowledged by a ‘read’ receipt from the recipient’s e-mail. Under the procedure the appeal should have had a substantive response by 29 October 2008. The claimant spoke to the HR Manager in Belfast. He then received a letter dated 6 November 2008 from the respondent saying there would be a delay in responding to the appeal as HR was still in the process of investigating the matter. On 7 November 2008 the claimant responded seeking to add an appeal in relation to sex discrimination and also a new appeal based on race discrimination as he felt the delay in dealing with his appeal was treating him less favourably as a Northern Ireland citizen compared with others outside Northern Ireland. On 7 November 2008 the claimant also received an e-mail from the respondent apologising for the way in which his appeal had been handled and that he had not received a response to the appeal.
29. On 16 December 2008 a letter was sent to the claimant informing him that his appeal had been unsuccessful.
30. Meanwhile on 11 December 2008 the claimant lodged a grievance regarding the selection process and the delays in the appeal process.
31. On 21 January 2009, Linda Huggins, the respondent’s Regional HR Manager, based in Glasgow, sent an e-mail to the claimant to advise she had been appointed to investigate the complaint and to apologise for the delay in starting the procedure. Interviews were conducted with a number of people. The claimant’s grievance was not upheld other than a finding that Mr McCormick’s comments ‘u r to old’ constituted harassment under the respondent’s discrimination, harassment and bullying procedures.
32. The claimant appealed against this finding. The appeal was conducted by Paul Luffman, Head of Engagement, Diversity and Inclusion. Mr Luffman reported on 8 January 2010. He upheld Ms Huggins’ findings. In relation to Mr McCormick’s comments he confirmed that the claimant had suffered age discrimination and harassment in breach of the discrimination, harassment and bullying policy.
33. Mr Luffman confirmed that whilst appeals usually can be completed within the timescales provided, grievances often take longer. This was a complex case with a large number of allegations. It was better to have a thorough investigation rather than meeting indicative timescales.
34. The claimant did not complain of the findings or the manner of the appeal and grievance processes. His complaint was about the delays in the process.
35. The claimant introduced statistics as part of his evidence. These included information regarding the religious breakdown of the respondent’s workforce at PO1 and PO3 level. At PO1 level the respondent employed 26 Protestants and three Catholics. At PO3 level the respondent employed 43 Protestants and 43 Catholics.
36. Mr McCabe had carried out other recruitment and selection exercises in the past including exercises for recruitment at PO1 level.
37. The substantive law relating to the issues has been set out fully in the written submissions of Mr Potter and Mr Wolfe. The submissions set out the statutory provisions in question and also the very helpful case law guidance from Igen Ltd v Wong  IRLR 258, Madarassy v Lomura International PLC  IRLR 246, Laing v Manchester City Council  IRLR 748 and the Northern Ireland Court of Appeal decision in Nelson v Newry & Mourne District Council  NICA 24.
38. In brief terms, a person discriminates against another if on one of the protected grounds (age, race, religious belief, or political opinion) he treats that other less favourably than he treats or would treat other persons. The claimant must show that he has been treated less favourably than the person with whom he compares himself. The claimant must also establish if any less favourable treatment was by reason of the protected ground. Unreasonable treatment does not of itself give rise to an inference of unlawful discrimination. The claimant must show facts from which the Tribunal could, in the absence of an adequate explanation, conclude that the respondent had committed an unlawful act of discrimination. Once the Tribunal so concludes, the burden then shifts to the respondent to prove that it did not commit an unlawful act of discrimination.
39. The case law makes it clear that the focus of a Tribunal’s analysis must be on the question of whether or not it can properly and fairly infer race discrimination. The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination.
40. The definition of ‘harassment’ covers the situation where a person engages in unwanted conduct which has the purpose or effect of violating another person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that other person. In addition, it will cover unwanted conduct which has any of these effects provided that it can reasonably be considered as having the effect in question.
41. It is open to employers to raise a defence to acts of discrimination committed by their employees by proving that the employer took such steps as were reasonably practicable to prevent the employee from doing that act or from doing in the course of his employment acts of the same description.
The Tribunal’s conclusions
42. The Tribunal was assisted by written submissions prepared by Mr Potter and Mr Wolfe.
43. Mr Potter fairly accepted that at its height the claimant’s case for race discrimination is in the manner in which the appeal was processed without adherence to the specific procedures. Whilst there were undoubtedly delays in the process of both the appeal and the grievance which brought them outside the scope of the time-limits set in the respondent’s policies, the Tribunal did not consider that there was any evidence from which an inference of discrimination on the grounds of race could be established. In any event, the Tribunal were satisfied that the claimant had raised complex issues which required some investigation by the respondent before conclusions were reached. The claimant’s claim for race discrimination is dismissed.
Religious belief/political opinion discrimination
44. This part of the claimant’s claim relates to the recruitment selection process. Simply stated, the claimant’s case is that he should have been appointed to the PO3 post in preference to a younger less experienced candidate. The respondent contends that the successful candidate was chosen because he performed better at interview and addressed the questions asked in more detail and gave better examples in those answers. In contrast, whilst the claimant performed well he did not perform as well as the successful candidate and did not give the same detail or examples in comparison to the successful candidate. The claimant contends that because of the shortcomings in the process the respondent’s version cannot be accepted. The claimant’s case was that Mr McCabe, for reasons of religion or political opinion, did not want to have the claimant appointed and he in turn influenced Ms Waltham. The claimant attempted to categorise Ms Waltham as a weak individual easily swayed by another.
45. The claimant asserts that all things being equal he ought to have been appointed to the post. He relies heavily on his experience as a former Procurement Manager at Ford. The claimant does not query the successful candidate’s marks. Instead he focused on his own performance and said that he should have been awarded higher scores. He points to anomalies and procedural breaches to support his case. However, on examination, we did not consider that there were inferences to be drawn from those anomalies and procedural breaches.
46. Mr McCabe was closely involved in the composition of the panel. He chose Ms Waltham, who was from the same work area as himself. However, the Tribunal has found as a fact that this was a common practice of the respondent’s selection processes. The emphasis was on getting a panel member from a different region, in this case outside Northern Ireland.
47. The claimant also pointed to the fact that the two communities were not represented on this panel for a Belfast appointment. Again the Tribunal did not accept that this was a flaw from which an inference should be drawn. The policy is not prescriptive and the main emphasis in the policy and in practice is to find a person from outside the region. As the respondent has classified all its employees outside Northern Ireland as non-determined, Ms Waltham was classified as non-determined. She had no awareness that the claimant was a Catholic and this evidence was not challenged by the claimant.
48. Central to the claimant’s case is that his extensive experience in procurement should have assisted him in obtaining the post. The panel accept that the claimant was appointable and placed him on the merit list; but his performance was not good enough for a higher mark. The claimant placed undue emphasis on the fact of his experience. This was neither a criterion nor the basis of a question at interview. It provided material to assist the claimant in answering questions and he did so satisfactorily. It appears to the Tribunal that the claimant simply cannot accept the fact that his experience at a high level in procurement was not sufficient to guarantee him this post against another candidate with no such experience. That experience is not what this panel was measuring. They had to measure the candidates against the essential criteria. The claimant did well, and on the day he could have been appointed. However, the successful candidate did better. The panel were not saying the claimant was not good enough, they simply said that on the day the successful candidate performed better. The claimant never sought to challenge the information given by the successful candidate or the evidence regarding his performance at interview. He does not contend that the successful candidate was marked too high, he says that he was marked too low.
49. The claimant asserted that Ms Waltham included negative comments on her form only after input from Mr McCabe. The claimant’s case was that Mr McCabe discriminated against him and persuaded Ms Waltham to give lower than deserved marks. The claimant asserted that Ms Waltham was a weak individual easily influenced by Mr McCabe. This was not the impression of Ms Waltham gained by the Tribunal after hearing her evidence. There was no evidence before the Tribunal from which it could conclude that any comments written by Ms Waltham on her sheet were created only after input from Mr McCabe. There is nothing in this matter from which the Tribunal would draw an inference.
50. The claimant also sought to draw attention to the fact that Mr McCabe had negative comments on his score sheet relating to the claimant but not the other candidates. Whilst the Tribunal found that whether Mr McCabe’s comments could be described negative was something of a subjective analysis, in fact Mr McCabe scored the claimant higher than Ms Waltham and both panellists found the claimant met the required standard in all categories.
51. The claimant also pointed to the fact that Mr McCabe changed his scores in the valued behaviours from threes to twos in three categories. Ms Cosgrove, the Human Resources Manager, identified this as unusual. The Tribunal has already found as a fact that those amendments were made before the panellists discussed the marks. The Tribunal has also accepted Mr McCabe’s explanation as to how he reviewed his marks. Whilst the reason may not be a particularly good reason the Tribunal considered that it was a genuine reason. Again there is no inference drawn from the change in scores.
52. The claimant also sought to draw comparison in his performance for the other PO3 post for which he had interviewed the previous day. The Tribunal draw no conclusions or inferences from this competition. It was a different competition involving different criteria in front of a different panel who asked different questions.
53. The claimant also sought to assert that there was evidence of a pattern of appointments of Protestants at PO1 grade. Mr McCabe was involved in competitions for PO1 appointments. The claimant then asserted that the Tribunal should draw an inference from the disparate treatment on religious grounds given the pattern of appointments at PO1 and Mr McCabe’s involvement in recruitment at that level. However, it appears to the Tribunal this is something of a logical fallacy. There is no connection in the evidence before us to say that Mr McCabe appointed Protestants or Catholics in any competitions in which he was involved. Furthermore, the post the claimant applied for was not a PO1 post but a PO3 post where there was in fact a small majority of Catholics overall in post.
54. There were procedural breaches of the respondent’s policy but they were not unique to this competition. There was a considerable element of custom and practice and the Tribunal did not feel that it was appropriate to draw inferences on these.
55. It is undisputed that Mr McCormick made a statement which was blatantly relating to age. The Tribunal is satisfied that there was a friendly relationship based largely in the workplace between the claimant and Mr McCormick. There was frequent interaction which both parties described as ‘banter’. The comment made by Mr McCormick and the context in which it was delivered, however, offended the claimant. The Tribunal consider that this was a statement which amounted to discrimination on the grounds of age. The Tribunal does not consider that it amounted to harassment. The e-mail was sent in the context of a relationship where name-calling was not uncommon. Mr McCormick had seen the photographs mocking the grey hair of ‘Ravenelli’ circulating on the intranet. The claimant took no action and made no complaint in relation to those matters. The Tribunal is also satisfied that Mr McCormick’s comments were made spontaneously and regretted with hindsight. The claimant did not make any complaint for some considerable time after the incident and his relationship with Mr McCormick did not alter until after the complaint was made.
56. The Tribunal also took into account that the respondent themselves when they did investigate the matter considered that the comment was discriminatory and in breach of their discrimination, harassment and bullying policy.
57. The Tribunal then turned to consider whether the respondent should be liable. The Tribunal has been given, in evidence, the picture of a workplace with good policies and extensive training. However, there is also a somewhat complacent attitude to potential issues and concerns. Although the HR Department were aware of a significant imbalance at PO1 level between Catholics and Protestants they took absolutely no steps to investigate, apparently on the basis that no outside agency required them to do so. It is also clear that a level of ‘banter’ was tolerated within the workplace, for example, the photographs from the football match a few months previously. The Tribunal heard no evidence that any of the training addressed specifically the issues attached to workplace ‘banter’. No sanction was imposed on the composer of the photographs nor was any formal sanction applied to Mr McCormick. The Tribunal find, therefore, that the respondent did not take such steps as were reasonably practicable to prevent Mr McCormick from doing the act complained of.
58. The Tribunal does not consider that there was any evidence that age discrimination affected the promotion process. There was no evidence that Mr McCormick played any part in the decision-making or in any contact beyond a bare minimum with Mr McCabe or Ms Waltham. On this basis, the Tribunal does not consider it appropriate to transfer the burden of proof in relation to the selection process.
59. The claimant gave evidence that he was very seriously affected by the comments made by Mr McCormick. However, there was no supporting evidence of any such reaction and indeed the evidence the Tribunal did have suggested that the incident did not have such a profound effect. The claimant made no complaint at the time nor did he alter his relationship with Mr McCormick. That relationship was characterised by a level of friendly ‘banter’. The e-mail sent was a thoughtless act sent spontaneously one minute after the claimant had e-mailed Mr McCormick. The claimant, however, did not respond in any way to that e-mail at that time.
60. The Tribunal also took into account that the claimant made use of the appeal process and the grievance process but did not raise the matter of the e-mail through any internal mechanisms.
61. In these circumstances, the Tribunal considers that the injury to feelings award should fall within the bottom band of the Vento bands and awards the sum of £1,500.
62. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Date and place of hearing: 18 – 19 March 2010; and
22- 26 March 2010, Belfast
Date decision recorded in register and issued to parties: