Fair Employment Tribunal Northern Ireland Decisions

 


FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 00454/98FET

01724/99SD

03302/98TUA

APPLICANT: Samuel Morton

RESPONDENT: Northern Ireland Housing Executive

DECISION

The unanimous decision of the Tribunal is that these applications are dismissed.

APPEARANCES:

APPLICANT: The applicant appeared without representation.

RESPONDENT: Mr Long, QC, instructed by the respondent's legal department.

1. The applicant applied for the post of Personnel Development Officer, Level 5, with the respondent in July 1998. He was not shortlisted. He complained in October 1998 that he had been discriminated against on the grounds of his political opinion and alleged that the failure to shortlist constituted action short of dismissal taken against him because of his trade union activities. He learned by a letter dated 29 January 1999 that all of the candidates shortlisted were female and on 28 April 1999 presented a complaint of unlawful gender discrimination.
2. Clearly this complaint of unlawful sex discrimination was not presented within the period of three months beginning when the act complained of was done. It was not presented until almost the end of three months from the date the applicant discovered that all of the shortlisted candidates were female. He should have moved much more quickly and has not explained his delay. Given however that a discrimination complaint had already been entered, it does not seem to us that prejudice arose to the respondent on account of this delay and indeed the respondent does not claim such prejudice. In all the circumstances we believe that it would be just and equitable for the Tribunal to consider the complaint of unlawful sex discrimination.
3. Sixteen candidates applied for this internally trawled post. Four candidates were shortlisted – all females. There were four shortlisters – all principal officers with the respondent. The shortlisting criteria were –

(a) at least 2 years substantive service at level 4 – the post in issue was at level 5.

(b) a degree or professional personnel qualification and appropriate experience for not less than 3 years in one of the following areas –

(1) employment practice or equal opportunities,

(2) training and development, or

(3) industrial relations.

Exceptionally, and in accordance with established procedures, candidates without formal qualifications who had ten years appropriate experience in the specified competency areas were eligible. Appropriate experience meant 'substantial ie. day to day experience in at least one of the competency areas outlined in the job requirements'.

4. The applicant was not shortlisted because, from his application form, the panel shortlisting allegedly were not satisfied that he had demonstrated any of the competencies sought ie. he had not shown competence in –

(1) employment practice or equal opportunities,

(2) training and development, or

(3) industrial relations.

The applicant alleged that he was not shortlisted because of his trade union activities. He was a founder member of NIPSA Branch 515 and was Branch Chairperson from 1977. He had been a member of the NIHE Central Panel since 1979 and from 1997 had been Vice-Chair. Since 1988 he had been a member of the trade union side of the NIHE Joint Consultative Negotiating Committee. In addition from 1989 to 1999 he was at various times a member of the Public Officers Group Executive Committee and from 1990 to 1998 was the representative of NICICTU on the Board of Governors of Coleraine Technical College which became the Causeway Institute of Further and Higher Education.

5. Given the record of the applicant at various levels and in various capacities in the trade union movement, it does seem to us that he is likely to have had, at least on a prima facie basis, a competence in employment practice and industrial relations. The problem for the applicant was that the respondent shortlisted allegedly from the information in the application form and only from that information regardless of the knowledge of the shortlisters. The applicant had been employed by the respondent from 1974 and at level 4 from 1976. He satisfied the educational qualification and the service qualification at level 4. In his application he recited his employment history at level 4 from 1976 in the following terms -

"Rent Rebate Officer later redesignated Housing Officer now SAO level 4."

The applicant agreed that this information did not satisfy any test of competence. He made no entry at all in the column headed 'please highlight any aspects of your career to date which you think are of special relevance'. The only matter which the applicant believed justified his shortlisting from the contents of his application form was in the column headed ' please indicate any experience, skills, expertise or interests outside work which would help the Executive to determine your suitability for employment'. In this column he wrote –

"Have served on a public body ie. Coleraine Technical College later Causeway Institute as a governor. Involved in selection process (interviewing), sat on discipline and grievance sub-committees also redundancy sub-committee as part of selection and also appeal stage."

He did not mention his involvement in trade union affairs at all.

6. Candidates were required to demonstrate 3 years appropriate experience. Such experience was defined as substantial day to day experience in one of the competency areas. If the respondents did rely solely upon the contents of the application form, the only matter which they could have taken into account on behalf of the applicant was his part-time experience as a governor of a college and, in particular his involvement in interviewing, his experience on disciplinary/grievance sub-committees, redundancy committees and appeals therefrom. Whilst this experience undoubtedly constituted relevant experience, the frequency, extent and duration of the experience is unspecified in the face of three years day to day experience being required.
7. The applicant clearly believed that his experience as a trade unionist should have been taken into account even though it was unspecified. He believed also that the history of the name change of Coleraine College into Causeway Institute was confirmation of his length of time as a governor. He did not accept that the selection panel did not bring their personal knowledge to the shortlisting for other candidates and did believe that selectors 'read into' other candidates entries to pass the short-list criteria and he believed that he was not the only trade unionist to suffer for his trade union involvement. In support of these contentions he relied upon what he perceived as major failings in procedures and in adherence to the Fair Employment Code of Practice.
8. Unanimously we do not believe that there were any major failings in procedures or in the application of the Code of Practice. With hindsight, and particularly when a relatively brief shortlisting exercise is the subject of evidence extending over a number of days, there will always be matters which will be shown to have been less than perfect and open to misinterpretation. But before we ask whether such apparent failings help us in drawing inferences, clearly we must be satisfied that the applicant was treated less favourably than some other candidate or candidates. The applicant compared himself to a Ms Little who did not satisfy the educational qualification and therefore needed to demonstrate appropriate experience for 10 years before she could be shortlisted. She had been employed, on the information in her application form, as a level 4 from April 1986. In her employment history section, Ms Little stated –

December 1986 to Jan 1995 – Personnel – responsible for the entire function in Personnel including the efficient and timely administration of all payroll functions. From January 1995 to June 1998, she claimed to have been acting as a Personnel Officer and described at some length the matters upon which she worked ie. resourcing, absenteeism service, training, budget, employee relations, etc. She highlighted 12 years work in personnel at various levels.

9. The applicant did not accept that Ms Little carried out the duties which she described in her form. The respondent's evidence was that she may well have done so but that, at shortlisting stage, whether or not she did so was irrelevant. The respondent could not check the accuracy of the contents of application forms at the shortlisting stage. We have to agree with that conclusion on the part of the respondent.
10. In our unanimous opinion, the selection panel would have no real option other than to short-list Ms Little on the criteria which they employed. We believe the panel when they stated that they assessed candidates against the competencies on the basis of the information in the application forms submitted. We do not believe that the fact that a panel member sought clarification on an entry detracts from that claim. It would be absurd to suggest that the provision of equality of opportunity prohibits the giving of clarification in relation to an entry on a form. In the end we are faced with, as were the shortlisters, a detailed form showing experience in competencies over the required period and satisfying the other criteria from Ms Little and a form from the applicant which on its face did not do so. It is impossible to say that the shortlisters treated the applicant less favourably on this basis for we do not believe that the applicant was entitled to be shortlisted on the contents of his application form. It seems to us that the situation would have been altogether different if he had set out his trade union experience.
11. The applicant complains of the respondent allowing candidates to provide information on extra pages beyond those contained in the application form. We understand what he is saying in general terns and we ourselves believe that candidates should be told one way or another whether it is permissible to do so. We cannot see that the respondent's decision to take extra sheets into account justifies an inference that the applicant's political opinion or gender was ever taken into account. We can draw no adverse conclusion from the respondent's exclusion from interview of two other candidates who mentioned their trade union experience. We believe those persons were justifiably excluded under the criteria employed. And we find it impossible to believe that the respondent's decision to include the service of a candidate at level 4 whilst seconded to University of Ulster as an Employee Relations Advisor/Human Resources Consultant to satisfy the competencies was influenced by gender or by the political opinions of the applicant. It does not seem to us to require explanation.
12. There simply is no evidence that the respondent treated the applicant less favourably than anyone else. We do not need to consider his political opinions or gender in such circumstances. And the applicant has not demonstrated to us that the respondent took action against him because of his trade union activities. He made the point that a dispute which involved him, as a trade union representative and the chairman of the shortlisting panel as management representative, was bitter and led to some tension between them. He believed that in these circumstances the chairman should have stood aside. He may have a point but the only evidence that the chairman penalised him relates to the fact that he was not shortlisted. We think that the contents of his application form explain why he was not shortlisted and we have no credible evidence to suggest that anyone was influenced by the trade union activities of the applicant. Accordingly we dismiss these applications.

____________________________________

J E MAGUIRE

President

Date and place of hearing: 25-28 February 2002, Belfast

Date decision recorded in register and issued to parties: 11 March 2002