Fair Employment Tribunal Northern Ireland Decisions

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Cite as: [2002] NIFET 340_99

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FAIR EMPLOYMENT TRIBUNAL

CASE REF: 00340/99 FET

APPLICANT: Eamon Hackett

RESPONDENT: Moy Park Limited

DECISION

The unanimous decision of the Tribunal is to dismiss the application.

APPEARANCES:

Mr Hackett appeared without representation. The respondent was represented by Mr R Steer, Barrister-at-Law.

The applicant complained to the Tribunal on 3 September 1999 that he had been unlawfully discriminated against by the respondent on or about 19 July 1999 when he was interviewed but not appointed as Department Manager, Primary Processing Department.

The applicant was a Roman Catholic and the successful candidate was a Protestant. There were only two candidates for the post and the applicant alleged that he was better experienced for the post than the successful candidate and that the reason for the successful candidate's success and his own lack of success was the difference in their religion.

The respondent denied that the applicant was discriminated against and alleged that the post was filled after a fair selection procedure and on the basis of merit and merit alone.

The Tribunal were satisfied of the following facts:-

(i) the applicant was a Roman Catholic and the successful candidate was a Protestant. There were only two candidates for this post though the respondent interviewed at the same time for the post of Manager, Packing Room Department.

(ii) the successful candidate applied for both of these posts. Candidate AH was the successful candidate in the Packing Department competition and she was a Protestant.

(iii) all of the members of the interview panel were Protestants.

(iv) the job advertisement for both posts – which were 'internal' vacancies – indicated that:-

(a) the successful applicant to each post will cover all aspects of a departmental production process with a particular focus on output and yield efficiencies through effective leadership and teamwork;

(b) candidates should have good people management experience with the desire/skill to instil change and improvement.

(v) the employee specification which was for Departmental Manager generally and not Dept Man – Primary Process or Packing Room – showed seven criteria and the essential and desirable aspects of those criteria. A copy of the Employee Specification is attached and marked 'A'. The range of marks attributable to each of the criteria were as follows:-

Criteria 1 Mark Range

Physical make-up, appearance, speech and health 6-7

Criteria 2

Attainments –

Educational and Occupational 9-11

Criteria 3

General Intelligence

Tests, Reasoning ability 7-9

Criteria 4

Special Aptitudes

Verbal/Numerical/Mechanical 7-9

Criteria 5

Interests 4-5

Criteria 6

Disposition, leadership, self-reliance, motivation 7-9

Criteria 7

Circumstances

Mobility 5-7

(vi) The interview assessment sheets completed by the interviewees described the criteria as follows:-

Criteria 1 – Physical make-up, eg health and appearance

Criteria 2 – Attainments, eg education, other qualifications, training, experience

Criteria 3 – General intelligence, eg reasoning ability

Criteria 4 – Special aptitude, eg numerical, machinery, particular skills

Criteria 5 – Interests, eg sports/community/social involvement/artistic

Criteria 6 – Disposition, eg interpersonal skills, motivation, positive attitude,

leadership

Criteria 7 – Circumstances, eg mobility, car ownership, overtime

(vii) The applicant's application form, which like the others, contained columns for schools, further education, additional training or development, special qualifications, employment history, leisure pursuits and space for additional information contained no information beyond the statement – have worked as supervisor in all Departments since joining Moy Park on 8 December 1995 – worked for Moy Park in Donaghmore Hatchery hatching sexing day old chicks – was self-employed. Have supervised in all Departments for 3½ years on occasions without a manager. Never had any problems. I have a good working relationship with all workers.

(viii) The successful candidate showed:-

(a) his educational background – 8 GCSE with Grades B or C

(b) National Diploma in Food Technology

(c) Higher National Diploma in Food Technology

(d) Intermediate Food Hygiene Certificate

(e) Internal Courses in team-building, leadership skills, problem solving and team building activity weekend

(f) Full career history including:-

Relief Supervisor – Moy Park Packing Room (2 months to date),

Departmental Manager – Donegal Meats (1-2 months),

Supervisor – Moy Park Cutting Hall and five lines (3 years),

Weekend Shift Manager – Unipork, Control

Weekend Shift at Unipork Factory (7 months), and

Assistant Production Manager with Small Salad Company (9 months); and

(g) A detailed narrative description of his career and his reasons for thinking his experience made him suitable for the position advertised.

(ix) Nine multi-part questions were prepared to be used at interviews for Departmental Managers. Each interviewer was responsible for three questions. A copy of these questions is attached and marked 'B'.

For reasons which we shall shortly detail, we unanimously were unhappy at the presentation of this case. We must however consider the case on the evidence presented to us and in the knowledge that it is for the applicant to show that the respondent unlawfully discriminated against him and not for the respondent to show that he did not do so. The applicant's case can be shortly stated once we discount, as we must, the second hand or third hand hearsay introduced by him. He believes that his experience as a supervisor over 5 years and his experience of acting-up in his manager's absence in the department where the vacancy arose made him the better qualified candidate. He discounts his less than full application form on the basis that his employer knew all about his career since he had spent it with them. He discounts the successful candidate's experience as gained elsewhere, for shorter periods and not related to the actual department in which the post was located. However, given the undisputed evidence at the hearing that selection was made on consideration of seven criteria, six of which had both essential and desirable attributes, as tested by multiple questions on a nine criteria specification common to all managers posts, it is impossible to sustain an argument that the candidate in the department with experience of that department is the most experienced candidate. That would certainly be the case if the criterion for the post was the extent of experience in that department, but the questions exhibited make absolutely clear that this is not what was being tested. Nor did the applicant suggest that the criteria selected for appointment were in themselves discriminatory. We do not believe, on the evidence, that on the criteria employed, this applicant was the better experienced candidate. We have no reason to believe that the criteria selected were selected to disadvantage the applicant for whatever reason.

It is therefore for the applicant to show that he was disadvantaged at interview, i.e. treated less favourably than the successful candidate, and was so treated because of a religious belief. And, once again, the gist of the applicant's case was that these assessments did not adequately reflect his experience as a supervisor and whilst acting-up as a manager. Clearly the applicant's experience should have helped him to answer the questions at interview but the applicant has singularly failed to show us the respects in which he alleges that he was marked lower than he deserved in relation to any question. His application form can have been of no assistance to him so that he must show to us, to be successful, that he gave answers to questions asked of him which deserved a higher mark than he was given. He made no such case in his evidence. And we think therefore that is fatal to his claim.

As a Tribunal, we had no doubt as to the genuineness of the applicant's belief or on the strength of his feeling about his non-appointment. He clearly believes that an injustice has been done to him and, on his evidence, we believe that others, in responsible positions, have added to the strength of his beliefs by their comments. He is aware of a major imbalance in the representation of his community at managerial level in the respondent's business, i.e. 48 Protestant managers to 5 Roman Catholic managers. He was interviewed by a panel of 3 Protestant employees and 2 Protestants were appointed to vacant posts. And he is aware that amongst those managers, a significant number are related by blood or marriage. It is somewhat unfortunate in these circumstances that the applicant, a lay person, was left to present his own case. Members of this Tribunal have in the past commented upon the difficulty facing a lay person unschooled in legal affairs who has to present a complaint of discrimination – especially where the other party is legally represented. The Equality Commission decided to represent the applicant in these proceedings on 27 October 1999. The case was listed on 27 December 2001 for hearing on 4/6 March 2002. At the request of the Equality Commission the hearing on 4/6 March was postponed inter alia because Counsel was not available on 6 March. The case was listed next on 24 May 2002 for hearing on 21/25 October 2002. By letter dated 25 September 2002, the Equality Commission, for unspecified reasons, withdrew from the case.

We cannot comment upon that decision by the Equality Commission. We say however that on the evidence which we heard the applicant would have undoubtedly benefited from legal representation – and would have had it if the case had proceeded earlier. Not only did the applicant have to proceed alone but he was contacted by the respondent's Company Solicitor shortly before the hearing who drew attention to, and sought to draw conclusions from, the withdrawal of the assistance provided by the Commission. The fact that the applicant was not inhibited by the Commission's withdrawal or by the conclusions which the Company Solicitor sought to draw from it in a pre-hearing conversation should not detract from the seriousness of these matters for a layman complaining of discrimination whilst still in the employment of the alleged discriminator or the disadvantage thrust upon him.

A legal representative must be particularly careful, in approaching an unrepresented party, not to exert unfair pressure. He should strenuously avoid even the appearance of such pressure. In the opinion of the Tribunal the linking of the withdrawal of the Equality Commission to the likelihood of the failure of a complaint in a communication with an unrepresented party is unfair and wrong. The suggestion that an applicant may suffer ridicule on return to work after an unsuccessful claim is likewise wrong if not actually unlawful.

Finally, in the face of such circumstances, it is unfortunate that the evidence of the respondent as to why the applicant and the successful candidate were marked as they were on their answers to questions was so limited. It certainly did not 'clear the air' in the face of the applicant's concerns. It is easy for each interviewer to claim that one candidate answered Question 1 better than another. Unless the Tribunal hears how that candidate answered that question better, it cannot make a determination. When the narrow range of disputed marks is taken into account, such generalisations are not

probative at all. In this case, out of a possible 27 questions, we heard evidence in relation to one question as to the respective merit of the candidates' answers. The respondent is fortunate that the burden of proof does not lie upon the respondent. He is fortunate also that the applicant failed to raise a prima facie case of unlawful discrimination.

______________________________

J E MAGUIRE

President

Date and place of hearing: 21-22 October 2002, Belfast

Date decision recorded in register and issued to parties: