Fair Employment Tribunal Northern Ireland Decisions

 


FAIR EMPLOYMENT TRIBUNAL

CASE REF: 00209/00FET

00900/00

APPLICANT: Dr T W Fraser

RESPONDENT: The Queen's University of Belfast

DECISION

The unanimous decision of the Tribunal is that these applications are dismissed. The Tribunal did not accept that the applicant had been unlawfully discriminated against by the respondent on the grounds of either religious belief, political opinion or sex.

Appearances:

The applicant appeared in person and gave evidence.

The respondent was represented by Mr F O'Reilly, Barrister-at-Law, instructed by Elliott Duffy Garrett, Solicitors.

1. The applicant whose religious belief was non-determined but who believed that he would be considered as a Protestant and a unionist in Northern Ireland terms, alleged that he was unlawfully discriminated against on the grounds of religious belief and/or political opinion and/or sex when he was not appointed by the respondent to a post of temporary part-time technician in the respondent's Anatomy Department. He alleged he was treated less favourably by the appointing panel than Lisa Colhoun, a perceived Roman Catholic, who might have been perceived as a nationalist and who was appointed to one of two temporary posts available. The person appointed to the full-time temporary post with whom the applicant had originally compared himself was male and like the applicant his religious belief was perceived as undetermined.
2. The post which was advertised internally was to fill an ongoing research post involving the translocation of radioactive particles across the gastrointestinal tract in animals. This was part of a larger study looking at the possible harmful effects of the radioactive particles emanating from Chernobyl as it impacted on animals, humans and the food chain. The fund holder for this post was Professor Katherine Carr.
3. There was a need to fill this temporary technician's post quickly due to the sudden departure of the person previously filling the post otherwise the funding for the year could have been lost and the results of the research might not have been available for the sponsoring department's yearly report. In the event although only one post was advertised, it was subsequently realised that there was sufficient funding for both a full-time and a part-time post for the remaining six months and at the interview this was explained to the candidates and they were invited to indicate whether they would be interested in taking the part-time post if it was offered.
4. Six persons applied for the post. Three were shortlisted of whom the applicant was one. Two persons, a male whose religious belief/political opinion was non-determined and a female whose religious belief was perceived as Roman Catholic were appointed. The applicant was not successful but was appointed as a reserve should either of the other persons decline the job offer.
5. The shortlisting and interview panels were the same and were comprised of Professor Carr who was Professor of Anatomy and the grant-holder for the post whose perceived religious affiliation was non-determined and who was Scottish, Dr David Wilson, senior lecturer and Head of the Department of Anatomy whose perceived religious affiliation was non-determined and who was English, Kenneth Lee who was the Chief Technician in the Department of Anatomy whose perceived religious affiliation was Protestant and Frances Magennis from the respondent's personnel department whose perceived religious affiliation was Roman Catholic who were both from Northern Ireland.
6. The major duties of the job entailed:-

1. Processing tissues for light microscopy, electron microscopy (SEM and TEM) and immunocytochemistry.

2. Cutting tissue sections using various types of microtomes.

3. Examination of tissues using various microscopial techniques including-light and electron microscopy, epifluorescence and confocal scanning laser microscopy.

4. Preparation and collection of results for interpretation and statistical analysis of data.

5. Operation of other general laboratory equipment and such other duties and may be required and which fall within the general ambit of the post. .

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7. The essential criteria as set out in the employee specification were - at least an Ordinary C & G or two 'A' levels in a relevant subject, good communication skills, logical reasoning skills, an ability to work as a part of a team, an interest in this area for research and availability to travel to collaborating laboratories and a good attitude towards the collection of animal tissues. Desirable criteria were an advanced C & G in a relevant subject and experience of scanning and transmission, electron microscopy, at least one year's relevant laboratory experience and competency in computers. It was explained by Professor Carr and Mr Lee in particular that an important element of the job was the ability to use a freeze-fracture procedure to prepare the specimens to be inspected in the electron microscope. They maintained that experience of using this procedure and preparing the specimens appropriately was an important part of the overall duties of this post as it had evolved from the time when the first technician had been appointed to this post.
8. The applicant maintained that his qualifications and experience were superior to both the persons who were appointed. All the candidates who were shortlisted had qualifications considerably in excess of the minimum qualifications needed for the post. The applicant had a BSc (pass) in Chemistry, Botany and Zoology obtained in 1965 as an external degree from London. He had an MSc in Ultrastructural Botany obtained in 1970 from the respondent and a PhD in Plant Ultrastructure and Physiology obtained from the respondent in 1984. He had been a Principal Scientific Officer in the Department of Agriculture for Northern Ireland from 1973 to 1995 in charge of the microscopy laboratory and had both research and teaching experience in electron microscopy. He had never used freeze-fracturing techniques although he had seen them demonstrated. Apart from an RSA Word Processing course Dr Fraser had no knowledge or experience of using computers or spreadsheets or packages such as Excel.
9. Ms Colhoun had a BSc (Hons) in Zoology obtained from the respondent in June 1995. She had a Masters in Medical Science in Anatomy and Pathology obtained from the respondent in September 1996 and at the time of her application for this post she was studying for a PhD in Ultrastructural Parasiteology. Her curriculum vitae indicated considerable experience in electron microscopy and the use of the freeze-fracture technique during her Master of Medical Science year. On her CV she also indicated experience with computers including Microsoft Office, Microsoft Word, Powerpoint and executing BIDS and Edina searches.
10. The interviewers awarded the applicant 67.5 and Ms Colhoun 75.25 marks overall. The applicant maintained that these figures should have been reversed and that he should have obtained higher marks than Ms Colhoun in all categories. He suggested that assessing candidates presentation, disposition, motivation and special factors and indeed intellectual ability were all highly subjective. He maintained that as far as education and qualifications were concerned his PhD should have earned him the top marks available which was what Ms Colhoun was awarded, although she had not yet completed her PhD. With regard to relevant experience the applicant maintained that there was little difference between preparing and examining animal specimens in electron microscopes as opposed to preparing and examining botanical specimens. He suggested that any differences could be easily assimilated by a person of his experience. He queried the award of higher marks to Ms Colhoun in the area of presentation, particularly where they were both described as "quiet" and he maintained that his word processing qualification demonstrated a knowledge of the use of computer techniques which should have been sufficient for the job. He considered the marks awarded to him under the categories of "intellectual ability" which was defined as demonstrating logical reasoning skills and "disposition" which was defined as ability to work as part of a team, were less than he should have been awarded. He pointed out that he had been a team leader in his own department for a considerable number of years.
11. With regard to motivation the applicant queried particularly the average mark of 6.75 which was given to him as opposed to the 9 allocated to Ms Colhoun. He suggested that he had been honest in his admission that he wished to earn extra money and queried the much higher mark given to Ms Colhoun in this respect who had indicated a desire to work within the Department.
12. Dr Fraser pointed out that despite him indicating on his application form that he had a PhD and that his title was Dr, this fact was never acknowledged throughout this appointment process. He was written to as Mr Fraser, he was addressed by Professor Carr and Ms Magennis as Mr Fraser at the interview and all correspondence sent to him was addressed to Mr Fraser. He told the Tribunal that when he was introduced at the interviews and addressed as Mr Fraser he felt disturbed and wondered whether the panel were aware that he had a PhD. He insisted on the panel inspecting his degree certificates at the end of the interview and it was accepted that at that stage Professor Carr said to him "I see you have a doctorate, I should have called you doctor". Both Professor Carr and Ms Magennis acknowledged the error in not referring to the applicant as doctor, both in correspondence and at the interview. Both gave handsome apologies for this to the applicant in the course of the hearing which apologies were accepted.
13. All interview panel members indicated that they were well aware that the applicant had a PhD and Dr Carr pointed out that she had noted his PhD on the shortlisting form. All four persons on the interviewing panel gave evidence to the Tribunal. All four indicated that they had awarded the applicant less marks for his education and qualifications than Ms Colhoun was awarded because they considered his education and qualifications to be less relevant to the post for which he had applied than her education and qualifications were. In particular they pointed out that his education and qualifications were all on the botanical side with the exception of zoology in his basic degree which he completed in 1965, whereas her qualifications had involved more dealings related to anatomy and the gastrointestinal tract.
14. The panel gave the applicant an average mark of 7.5 for relevant experience (taking into account Professor Carr's correction of her original mark from 1 to 8) and Ms Colhoun an average of 10. They all allocated less marks to the applicant under this heading than to Ms Colhoun. The desirable attributes for this criteria were "experience of scanning and transmission electron microscopy, at least one year's relevant laboratory experience and competency with computers". Each member of the panel accepted that the applicant had vast experience in the use of electron microscopes over many years. However, each interviewer considered that Ms Colhoun's laboratory experience, both in her basic degree and in her Master's research project which had been based on the study of irradiation induced changes to the nuclear membrane systems of the epithelial cells in the small intestine of the rat, was more relevant experience than the applicant's whose expertise and experience was on the botanical side and who had little experience of dealing with animal tissue since his first degree in 1965. In addition it was clear that while Ms Colhoun had experience in freeze-fracture replication, which was part of the process used for preparing the specimens for examination under the electron microscope, the applicant had no hands-on experience of this process. The panel also considered that the applicant's computer experience, which consisted of an RSA in basic word processing, was less relevant to the requirements of this post than Ms Colhoun's knowledge and use of computers to log and analyse the results of her research findings.
15. With regard to presentation the applicant was awarded 7 while Ms Colhoun was given an average of 8.75 by the panel while Ms Magennis awarded them equal marks. Dr Wilson and Mr Lee in particular marked the applicant down in this regard because they found the applicant difficult to understand and difficult to get information from.
16. In the category for "intellectual ability" where the panel were assessing logical reasoning skills the applicant was given 7.75 and Ms Colhoun was given an average 8.25 for this. This category was judged partly on the recognition of the tissue and type of microscope used in photos which were provided to the candidates. It would appear that they both did reasonably well on this test. Ms Magennis and Mr Lee gave both candidates equal marks of 8 for this category. Professor Carr and Dr Wilson both gave the applicant 8 and Ms Colhoun 9. Dr Wilson explained that he had given the applicant a lesser mark because he had difficulty in understanding some of the questions put to him. Both candidates recognised and correctly identified most of the slides produced and the type of microscope involved.
17. With regard to the category of disposition in which the interviewers were judging 'ability to work as part of a team' the applicant got an average of 8 and Ms Colhoun got 9.25. Both got the same mark from Ms Magennis. Dr Carr gave the applicant 8 in this category and Ms Colhoun 10. She explained that Ms Colhoun had worked well as part of a team when Professor Carr was supervising her Master's degree. She considered that the applicant had team management experience rather than working as a member of a team. Mr Lee gave the applicant 8 and Ms Colhoun 9 – he too considered that the applicant's position as leader of a team was less relevant than working as a member of a team.
18. In the category for 'motivation' which required an interest in this area or research in this area, the applicant got an average of 6.76 and Ms Colhoun got 9. Professor Carr gave the applicant 7 and Ms Colhoun 10 in this category. Mr Lee gave the applicant 7 and Ms Colhoun 9. Dr Wilson gave the applicant 8 and Ms Colhoun 9 and Ms Magennis gave the applicant 5 and Ms Colhoun 8. The applicant frankly admitted to the interviewing panel and at the Tribunal that his main motive in applying for the post was to earn extra money and to re-acquaint himself with his past experience. Ms Colhoun who was in the process of completing her PhD and who wanted to progress her career in this area of research within the Department, was found to be more motivated by all the interviewers than the applicant.
19. The applicant was known to Mr Lee prior to the interviews. Ms Colhoun was known to Professor Carr, Dr Wilson and Mr Lee because her research was all within the Department and Professor Carr had supervised her study for her Master's degree.
20. All of the interviewers denied that the perceived or actual religious belief, political opinion or sex of either themselves or Ms Colhoun or the applicant had any part in their awarding of the temporary part-time job to Ms Colhoun rather than the applicant.
21. Mr O'Reilly accepted that the applicant had been incorrectly addressed both before and during the interview. He pointed out the handsome nature of the apologies made by both Dr Carr and Ms Magennis. He suggested that if the applicant was suggesting that this misnaming had prevented him from performing well at the interview, then he certainly could not relate that either to religious belief, political opinion or sex discrimination.
22. In relation to the allegations of unlawful discrimination on the grounds of either religious belief, political opinion or sex discrimination Mr O'Reilly pointed to the balanced nature of the panel. He suggested that the applicant must be alleging that the four persons on the panel had conspired against him on the grounds of his religious belief or his sex or because of the sex or religious belief of the successful candidate. He drew attention to the fact that throughout the case the applicant kept saying that the treatment afforded to him might have been on the grounds of his religious belief.
23. Mr O'Reilly pointed to the evidence of all four members of the panel who maintained that the applicant's inability to perform freeze-fracturing and his lack of competency in computer skills were the main reasons he was marked down at the interview and better marks were awarded to the successful candidate. He pointed out however that the panel were prepared to appoint the applicant as reserve for this post. He pointed to the urgency required in filling the post and he maintained that the successful candidates were those best suited to fill the post in the circumstances.
24. Mr O'Reilly suggested that the reason the applicant had brought this case was because of his improper naming coupled with a belief that his Ph.D was so superior that he would have inevitably have been appointed to the post. He suggested that having listened to the explanations provided by the panel that the Tribunal should reject the allegation that the respondent had unlawfully discriminated against the applicant in any way.
25. The applicant maintained that the inappropriate marks awarded to him together with the excuses made for this and the apology which had to be made and the ignoring of the merits of his qualifications in electron microscopy and his vast experience therein was so perverse that the Tribunal should concluded that the interviewers' intention was to appoint a Catholic female as against him a perceived Protestant man. The applicant's detailed contentions with regard to the criteria for the job and the marks which he was awarded are set out above.
26. The Tribunal having considered the evidence and submissions accepted that the applicant's Ph.D was a higher academic qualification than the successful candidate had yet obtained. The Tribunal also accepted that the applicant's years of experience in using and teaching the use of electron microscopes was more extensive than that of the successful candidate. However, the Tribunal was not satisfied that the post in question required such a high academic qualification as the applicant held nor was the Tribunal satisfied that the applicant's qualifications which were largely botanicallly based, were as relevant for the position as those of the successful candidate which were firmly grounded in anatomy and animal biology.
27. As far as the applicant's experience was concerned the Tribunal accepted that he had much greater and longer experience in the use of electron microscopes over the course of his career than Ms Colhoun. However, this use was again largely confined to botanical specimens rather than the animal tissue which was the relevant medium to be worked on in this specific project. In view of this, coupled with the applicant's lack of computer competency, the Tribunal did not accept that his experience was as relevant as that of Ms Colhoun. The Tribunal accepted that her experience was of shorter duration but found that it was based on the preparation and examination of animal tissues which included the use of the freeze-fracture technique of which the applicant had no hands-on experience.
28. In these circumstances the Tribunal accepted the explanations given by the interview panel that the applicant's qualifications and experience were not as relevant to the post in question as that of the successful candidate.
29. As far as the other criteria were concerned while the Tribunal accepted that some of them could be regarded as subjective, it also accepted that they were matters which it was necessary to assess in order to assist in choosing the best candidate for the job and the Tribunal found the reasons given by the interviewers for the marks they had allocated to the candidates in these categories to be satisfactory.
30. In view of the satisfactory and believable nature of the explanations given, the Tribunal was satisfied that the respondent's failure to appoint the applicant to the position of part-time temporary technician was not based on the grounds of religious belief, political opinion or sex and the Tribunal therefore found that the respondent had not unlawfully discriminated against the applicant on any of these grounds.

Chairman:

Date and place of hearing: 8, 9 and 10 April 2003, Belfast

Date decision recorded in register and issued to parties: