Court of Appeal in Northern Ireland Decisions

The first question is:

In light of the fact that the appellants had deliberately not specified previous housing experience as either essential or desirable but had specified previous experience in a caring environment as desirable, did the Industrial Tribunal err in law and reach a decision that no reasonable Industrial Tribunal could have reached in deciding that the respondent was "the only candidate with relevant experience"?

It was contended on behalf of the appellants that the respondent might have been the only one of the top three candidates with relevant experience if experience had been limited to experience in sheltered housing but it was not. But in its decision the Tribunal decided at paragraph 6 and 14 that the respondent was the only candidate with relevant experience.

The respondent contended that while person's experience in a caring environment was mentioned in the job advertisement and person specification, it was not specified at the final selection stage, when sheltered housing experience was clearly being looked for by the appellants.

When the Tribunal refused to state a case for the opinion of the Court of Appeal, an application was brought by the appellants for judicial review of its decision which included a refusal to state a case on this first question.

Accordingly we answer the first question in the affirmative.

Did the Tribunal err in law and reach a conclusion that no reasonable Tribunal could have reached by failing to have regard to the appellants' policy, established with recognised equal opportunities practice, that a person who is a runner-up to an advertised post can be appointed to another equivalent post which is vacant within a limited time scale and to the application of the said policy to the appointments of Ms McBeth to Blessington Court and Ms Stevenson to Greenville Court?

It was contended on behalf of the appellants that critical to this issue was the fact that the respondent had not applied for any post other than at Henderson Court, Belfast. The respondent contended that the Tribunal had stated its concerns "regarding the number of changes to the marks" in respect of the application for the post at Henderson Court and suggested that the changes were made in order to enable the appellant to ensure that Ms Stevenson was made runner-up for Henderson Court and Ms McBeth for Greenville Court.

"It appears that the tribunal failed to understand the significance of the policy implications in the awarding of various positions to the candidates for the Henderson Court post …. The reason that Ms McBeth and Ms Stevenson were considered for and ultimately appointed to different posts was that they had been runners-up in competitions for other positions. This was in accordance with Clanmil's pre-existing policy. It did not transpire as a result of some action taken after the interviews for the post at Henderson Court."

Did the Industrial Tribunal err in law and reach a conclusion which no reasonable Industrial Tribunal could have reached by deciding that the interviewing process was "contaminated by the fact that the panel of interviewers had differed" without concluding that such change discriminated against the respondent on the ground of sex?

The appellants submitted that two candidates had been interviewed for the post in Greenville Court prior to the interviews for Henderson Court. The interview panel for the post in Greenville Court consisted of two persons who sat on the interview panel for Henderson Court and a third person who did not. Rather than interview these two candidates again, the marks which they received from the two interviewers for the post at Greenville Court were accepted as their markings for the post at Henderson Court. The marks of the third person who interviewed them for the post in Greenville Court were ignored. Neither of them scored as highly as the respondent. But one of them was later offered another post because she had been reserve candidate for the Greenville Court post.

At paragraph 14 of its decision the Tribunal stated:-

"The Tribunal is of the opinion that the interviewing process had been contaminated by the fact that the applicant was not interviewed by the same panel as some of the other candidates, one of whom was appointed to a position she did not apply for. They were referring to Ms McBeth."

The appellants pointed out that the questions which were asked at the two sets of interviews were precisely the same. The only difference between the two sets of interviews were that there were three interviewers for the Greenville Court post and only two for Henderson Court. As the marks of the third interviewer were subtracted from the marks received by the two candidates for the post at Henderson Court, there was no evidence on which any reasonable Tribunal could hold that the process was contaminated, let alone that any contamination could amount to sex discrimination.

The respondent argued that the third interviewer's opinion on the scoring of the two candidates for Greenville Court could have influenced the scores given by the other two interviewers and if he had had this third interviewer present at the time of his interviews, her influence on his scoring would have had a bearing on his scoring and placement.

"Again, regrettably, this response (to the requisition for a case stated on the point) betrays the tribunal's failure to appreciate the manner in which the interviews were conducted …. The tribunal does not explain in what way the contamination occurred nor how that affected the outcome of the interviewing process."

Having set out the evidence as to how the interviews took place he stated:-

"In these circumstances it is not easy to discern how contamination could have entered the process."

The Tribunal sought to justify its finding by stating that the Tribunal of the opinion that all candidates should have been advised, prior to the interviewing process, what posts were available and the procedure which it intended to follow.

In light of all the evidence oral and written, did the Industrial Tribunal err in law in deciding that the respondent had been discriminated against on the grounds of sex by not being appointed to a position at Henderson Court?

We have read the decision of the Tribunal, its answers to the requisition and the judgment of Kerr J on this point; we have read and heard the submissions of counsel for the appellants and read the submissions of the respondent.

We are satisfied that no reasonable tribunal could have held that the respondent had been discriminated against on the grounds of sex. It is unfortunate that he applied only for the post at Henderson House. If he had applied for the post at Greenville Court, it is likely that he would have obtained the post which Ms McBeth obtained. But he did not. He was given the marks which would have entitled him to obtain that post if he had competed with Ms McBeth for Greenville Court. But he did not compete and the Tribunal failed to realise that this was the simple reason why Ms McBeth who finished runner-up for Greenville Court but with fewer marks than he did at Henderson Court was offered another post.