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Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> F P McCann Ltd v Ballymoney Borough Council [2002] NIFET 300_99 (6 November 2002)
URL: http://www.bailii.org/nie/cases/NIFET/2002/300_99.html
Cite as: [2002] NIFET 300_99
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- Eoin McCann is chairman and managing director of F P McCann Limited, a private limited company. There were five other directors and shareholders in the company, namely Christopher, Michael, Joan, Hugh and Francis McCann. The company was based at Knockloughrim Quarry, Magherafelt and were Civil Engineering and Building Contractors. Mr Eoin McCann was a Roman Catholic, the other directors/shareholders were Catholics but the firm employed a mixed workforce.
- In or about March 1999, the respondent, Ballymoney Borough Council, invited applications from suitably experienced and qualified contractors who wished to be included on a select list from which tenders would be invited for the construction of a new synthetic hockey pitch at Riada Centre, Ballymoney. The Democratic Unionist
- Eleven contractors, including F P McCann Ltd, submitted application forms to be included on a select list of contractors. All applicants were found to have sound organisational structures with adequate finances to complete the works. They all had relevant insurance and health and safety policies and all seemed to have provided good service to their clients. The main difference between them was the amount of relevant experience of the work detailed in the project. Three firms had no experience of this type of work. Two firms had only undertaken work of this nature on one previous occasion whereas the remaining six firms had successfully completed two or more similar projects. Referees for these six firms were contacted and each confirmed a high standard of workmanship and a willingness to work with the firms on future occasions. These conclusions were drawn by R Robertson & Son, Chartered Architects and Civil Engineers who acted as consultants to the Council. They so advised the Council on 18 March 1999 and indicated their belief that the six firms with two or more experiences of this type of work were the most qualified to complete this project to a high standard. They invited the Council to include these six on the select list of contractors, even though they believed that all of the firms applying could be capable. F P McCann Ltd was placed on the select list by the Council along with five other firms and was so advised by letter dated 29 March 1999.
- This letter of 29 March 1999 also enclosed the tender documents for completion and return by 19 April 1999 - midday. Prior to returning the tender, the firms on the select list were asked to provide details of the synthetic carpet and shockpad which they intended to use. F P McCann informed the consultants on 31 March 1999 that they
- In forming their recommendation to the Council, the consultant engineers stated that they had followed the NJCC Code of Practice for Single Stage Selective Tendering. Paragraph 1.1 of the Code stated -
- The recommendation made by the consulting engineers to Council, which was accepted by Council, was as follows -
- In making comment upon each tender, the Consulting Engineers had this to say -
- The consultant engineer to the Council himself had no experience. When approached by the Council to advise on this work, the engineer had sought information from the successful tenderer - in or about 1 July 1998 - and had established from him what had been involved in the laying of such a pitch by Crawford at the showgrounds in Ballymena. At that stage he did not know the successful tenderer and he also sought information from a fencing contractor, a road contractor and from someone at 'Balsam' - one of the trade names for synthetic carpets. The successful tenderer intended to sub-contract the civil engineering aspects of the work - ie. excavation, filling in, bitmac but do the shockpad and synthetic carpet himself. The applicant firm intended to do the civil engineering work himself and sub-contract to the manufacturers the installation of the shockpad and carpet.
- The consultant engineer did not select the lowest tender. He claimed that he did not feel obliged to do so and saw the following factors as justification for not doing so, namely -
- Taking these facts and this evidence as a whole, it is our unanimous opinion that the consultant engineer by his recommendation, oral and written, and the Council, by their adoption of that recommendation, treated F P McCann Ltd, the applicant, less favourably than they treated the successful tenderer. Our conclusion does not flow simply from the fact that the consultant engineer did not recommend acceptance of the lowest tender but from that fact taken with the other factors which we have set out above. The fact is that the consultant did not follow the recommended procedure when he professed to do so. His failure to do so, in our unanimous opinion, must have been deliberate and had to be explained to the Council. Our analysis of his explanation convinces us that his failure to follow the code was less favourable treatment at a number of stages. We did not find his explanation credible and cannot resist the conclusion that the preference given to the successful tenderer was not on a genuine assessment of the merits.
- In our opinion there can be no doubt whatsoever that under the Code the time for consideration of general experience, skill and reputation was prior to the award of select list status. Likewise it was the time for consideration of the adequacy of the management of sub-contractors for the type of contract envisaged. And finally that was the time to consider the firm's approach to quality assurance. We do not say, and could not say, that the consultant could not thereafter consider these issues again but we must assess their actions and evidence in light of the guidance which they professed to follow. The consultant saw his consideration of experience, skill and end product as constituting
- If the consultant engineer had not professed to follow the Code, he could have distinguished between tenderers on whatever grounds. If we believed that he had done so for the reasons given, it does not matter whether he is right or wrong, fair or unfair, for those were the criteria unless those criteria themselves were discriminatory. But because he did profess to follow the Code, the Tribunal is obliged to consider how those criteria relate to the guidance in the Code. And the Tribunal is entitled to say that treatment is less favourable if the tenderer favoured under the Code is not successful. We believe that the consultant's preference for the successful tenderer led him to bend the Code to favour that tenderer. The words chosen by the consultant in his recommendation to the Council and in his comments upon those tenderers set out in paragraphs 6 and 7 above in our opinion illustrate a clear preference. The basis of that preference was misplaced at the tender stage except in the most exceptional cases. No such circumstances have been established. But even if such circumstances were not required, the comments made in relation to each tenderer inflate the alleged advantages of the successful tenderer and minimise those of the lowest tenderer - to the extent that a tenderer with less experience than the lowest tenderer receives more favourable
- The relative merits of Grasshopper, Balsam and Thornton are unknown to the Tribunal after seeing and hearing all the evidence. The basis and extent of the 'considerable reputation' of the successful tenderer likewise remains unknown after the evidence and was not compared with the reputation of the lowest tenderer. In all the circumstances of this case the experience of the successful tenderer in building six pitches as compared to three by the lowest tenderer scarcely earns the preferential status bestowed by the consultant. It may well be, and we think that it is more likely than not, that the oral advice given by the consultant favoured 'local' connection and suggested that, in the long term, it was a risk to employ contractors other than 'local' contractors. Such speculation in the face of the clear terms of the Code is difficult to explain and does of course provide cover if preference is indeed based upon unlawful discrimination. No evidence was produced to substantiate such reservations in relation to previous contracts.
- The remaining question is why was the lowest tenderer treated less favourably. The consultant engineer denies such treatment and has advanced his reasons for the success of the second lowest tenderer. We have rejected those reasons for the recommendation made by the consultant in all the circumstances and do not accept that they justify the failure to appoint the lowest tenderer. No other reasons are proffered by the respondent or the consultant engineer. There is no direct evidence of discrimination ie. that the less favourable treatment was on the grounds of religious belief but the Tribunal is entitled to draw an inference of such discrimination in the absence of an explanation - a satisfactory and innocent explanation - of the less favourable treatment. It does not have to but the absence of an explanation for less favourable treatment cannot simply be ignored. Nor is it fatal that one is unable to ascribe a religious belief to a company for it is anyone's religious belief which can be an issue. The manager of the applicant company was Roman Catholic. The controllers of the respondent Council were
- Under the Fair Employment and Treatment (Northern Ireland) Order 1998 a person discriminates against one person on the grounds of religious belief in any circumstances if he on this ground treats that person less favourably than he treats another person. The comparison of those persons of different religious beliefs must be such that the relevant circumstances in the one case must be the same as or not materially different from those in the other case. It is unlawful in Northern Ireland for an employer to discriminate where a person is seeking employment by refusing to offer that person employment for which he applies. Employment includes employment under a contract personally to execute any work or labour. This expression was considered in 'In Re Northern Ireland Electricity Service's Application' [1987] NI 271 where the Court (Nicholson J) held that there was nothing in the 1976 Act (forerunner to the 1998 Order and in the same terms as this respect) to displace the presumption in Schedule 1 of the Interpretation Act 1978 that the word 'person' included a body corporate. The Court held also that it was not necessary that the religious belief in question had to be that of the person discriminated against so that it was not necessary to decide whether a body corporate could have a religious belief. Consequently we unanimously accept that the applicant is entitled under the 1998 Order to bring a complaint that he has been unlawfully discriminated against on the grounds of religious belief provided that he sought employment under a contract personally to execute work and labour.
- In this application the jurisdiction of the Tribunal depends upon whether or not the applicant can show that he sought a contract with the respondent 'personally to execute any work or labour' - Article 2(2) of the Fair Employment and Treatment Order 1998. The respondent concedes that this Tribunal is bound by the judgment in Re Northern Ireland Electricity Service's Application [1987] NI 271 to the effect that "person" included a body corporate. The remaining issue is whether or not the facts that the contract did not require personal service or that neither the applicant company nor the successful tenderer intended personally to execute all the work and labour deprives this Tribunal or jurisdiction because the applicant was not seeking 'employment'.
- We do not believe that the jurisdiction of the Tribunal is excluded by these factors. If the applicant intended 'personally to execute any work or labour' then he is within the definition even if he did not intend to execute personally all of the work or labour. It is not, as the respondent suggests, whether the applicant or the successful tenderer was to be employed under a contract personally to execute the work or labour in question or whether he is going personally to execute all this work or labour - the definition specifies any work or labour under a contract.
- Consequently, we, in the majority find that the respondent did unlawfully discriminate against the applicant on the grounds of religious belief.
CASE REF NO: 300/99FET
APPLICANT: F P McCann Limited
RESPONDENT: Ballymoney Borough Council
The unanimous decision of the Tribunal is that the respondent unlawfully discriminated against the applicant on the grounds of religious belief. This hearing is adjourned for consideration of remedy.
APPEARANCES:
APPLICANT: Mr M Lavery QC, with Mr R Lavery, Barrister-at-Law, instructed by John J McNally.
RESPONDENT: Mr John O'Hara, QC, with Mr S Ritchie, Barrister-at-Law, instructed by Greer Hamilton & Gailey.
Party were the majority party in Ballymoney Council. The works involved in the contract for the construction of the new sand-based synthetic hockey pitch on a greenfield site were all earthworks, drainage, two layer porous bitumen macadam, shockpad, sandfilled carpet, security fencing, spectators' enclosure and floodlighting. Only contractors who could demonstrate that they had successfully completed similar schemes could apply and they had to demonstrate adequate financial, management and technical resources. The Council, in the advertisement, specifically did not bind itself to invite tenders from any contractor or to accept the lowest or any tender once submitted.
intended to use 'Balsam' or 'Thornton'. The applicant firm tendered on 18 April 1999 and his was the lowest tender of the six received by £3,800 on a tendered figure of £461,129. His tender was not successful and the contract went to the next lowest tender at £464,935. It was accepted that the owner of that firm was a Protestant. All of the partners/associates of the consultant engineers acting for the Council were Protestant.
"Nothing in this Code should be taken to suggest that the employer is obliged to accept the lowest or any tender although if procedure advocated in the Code is followed, the successful tenderer will normally be the one offering the lowest price on a lump sum basis. If it is the employer's intention to allow bids based on alternative criteria, this must be made clear to all potential tenderers at the outset: the principle set out hereafter should still be observed. The objective is to achieve value for money for the employer."
No alternative criteria were notified to the tenderers. The Code then sets out a number of factors to be considered when preparing a select list namely -
(1) the firm's financial standing and record.
(3) the firm's general experience, skill and reputation in the area in question.
(4) whether the technical and management structure of the firm including the management of sub-contractors is adequate for the type of contract envisaged, and
(6) the firm's approach to quality assurance systems.
And in paragraph 3.4 it further states -
"The object of selection is to make a list of firms any one of which could be entrusted with the job. If this is achieved, then the final choice of contractor will be simple - the firm offering the lowest tender. Only the most exceptional cases justify departure from this general rule."
"The lowest two tenderers, once corrected for arithmetical mistakes, fall within £3,800 of each other (approx 0.8%) and are approximately 3% higher than pre-tender estimate. Both these contractors would be considered capable of completing this scheme. Ed Crawford Contracts Ltd, however, specialises in this type of work and have built up a considerable reputation for high quality workmanship and finish. They have completed 6 No pitches in the recent past and both clients and consultants have been extremely pleased in each case with the outcome. F P McCann are primarily a roads contractor who have branched out into this type of work in the recent past and while having completed 3 No pitches successfully have not completed as many as Ed Crawford Contracts Ltd.
The carpet which Ed Crawford Contracts Ltd is proposing comes slightly more highly recommended than the pitch F P McCann Ltd intend using although both comply with the detailed specification.
It would be our recommendation that because of the small difference in cost and because of Ed Crawford Contracts Ltd more extensive experience of this type of work and the fact that they specialise in it that they be awarded this contract ….. In making this recommendation, we
are not implying that any of the other contractors could not complete this pitch to a satisfactory standard but rather that given the information available that Ed Crawford Contracts Ltd experience would be of great advantage in ensuring the high quality of playing surface which the Council require."
(1) Ed Crawford Contracts
"Ed Crawford Contracts Ltd is a firm specialising in the laying of this type of pitch and they undertake little or no other work. They would intend to use a Grasshopper carpet and shockpad which has been employed at recently constructed pitches in Ballymena and Comber. The carpet and shockpad are of a high standard. This contractor claims to have completed more synthetic pitches in Northern Ireland than any other contractor and this claim is supported by the information which we received from contractors applying for a place on the select list. We have spoken to a number of clients and consultants regarding this contractor and all speak very highly of him and his quality of work. All have stated that they would be delighted to work with him again."
(2) F P McCann Ltd
"This contractor has indicated that he would use a Balsam or Thornton carpet and shockpad. Both of these would meet the requirements of the spcification. For both of these surfaces the contractor would employ the manufacturers as specialist sub-contractors to lay the shockpad and carpet although they have not stated this in their tender documents. F P McCann are principally a roads contractor with expertise in earthmoving and bitmaccing. They have completed only 3 No synthetic pitches at this time and one of these was constructed on concrete tennis courts with no shockpad. F P McCann have supplied an extensive list of previously completed contracts but the vast majority of these are road schemes."
(3) W&HA
"This contractor has stated that he will be using G Thornton (Ireland) Ltd to lay the shockpad and synthetic carpet and Mr D B will do all electrical work.
The contractor specialises in this type of work having successfully completed a number of pitches of this type in the recent past."
(a) the experience and expertise of the successful tenderer.
(b) the advantage technically of 'Grasshopper' over either 'Balsam' or 'Thornton', and
(c) the considerable reputation of the successful tenderer for high quality workmanship and finish.
These were the only reasons included in the engineer's written recommendation to Council. At the hearing before this Tribunal, the engineer placed considerable emphasis upon the advantages if the successful tenderer was 'local' - though the precise definition of 'local' was not given. The engineer emphasised an opinion that a non-local contractor would ignore inclement weather in order to complete the project and avoid remaining in the locality while a 'local' contractor would not have the same pressure to do so. The Chairman of the Council's recreation committee placed more emphasis upon the advice that it would be a false economy to contract with the cheapest tenderer if the project might go 'pear-shaped' in three or four years' time.
'most exceptional circumstances justifying departure from the general recommendation.' Even on the respondent's own evidence, we find this palpably unconvincing. Those 'most exceptional circumstances' were -
(a) in relation to end product ie. carpet, the fact that the successful tenderers carpet 'comes slightly more highly recommended than the pitch F P McCann intend using'. Even ignoring the absence of any technical explanation for this advantage and the limited professional base for that recommendation, if an advantage is slight, it can scarcely constitute 'a most exceptional circumstance'.
(b) in relation to experience and skill, the successful tenderers had laid six pitches and the lowest tenderer three pitches. Ed Crawford Contracts 'specialise in the laying of this type of pitch and they undertake little or no other work'. F P McCann have laid three such pitches, do all the civil engineering work with an extensive list of previously completed contracts. It simply does not make sense to describe this distinction as 'a most exceptional circumstance'.
comments for experience. We unanimously do not believe that the successful tenderer was preferred simply because he has done six pitches rather than three, used Grasshopper rather than Balsam or Thornton and had a considerable reputation for high quality workmanship and finish.
Protestant. The consulting engineer was Protestant in a firm with no Catholic partners nor associates. The firm with the Catholic management put in the lowest tender. He satisfied, even by the respondent's evidence, all the conditions for doing the work. The Code which the respondent professed to follow stated that in such circumstances the final choice of contractor will be simply the firm offering the lowest tender. The consultant in making his recommendation treated the lowest tenderer less favourably than the successful tenderer. There is no explanation for this less favourable treatment. In all the circumstances, we unanimously draw the inference that the applicant company was less favourably treated on the grounds of religious belief.
____________________________________
J E MAGUIRE
President
Date and place of hearing: 4, 5, 6 November 2002, Belfast
Date decision recorded in register and issued to parties: