Fair Employment Tribunal Northern Ireland Decisions

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Cite as: [2003] NIFET 523_, [2003] NIFET 523_00

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FAIR EMPLOYMENT TRIBUNAL

CASE REF: 00523/00FET

02900/00

APPLICANT: Patrick Stephen McWilliams

RESPONDENT: Queens University Belfast

DECISION

The unanimous decision of the Tribunal is that the applicant was not unlawfully discriminated against on the grounds of religious belief or sex. The applications given the case reference numbers above are therefore dismissed.

Appearances:

The applicant appeared in person.

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Elliott Duffy Garrett, Solicitors.

The applicant alleged that he was unlawfully discriminated against on the grounds of his religious belief and sex when he, a Catholic, was not appointed to the position of Publications Manager with the respondent and a female Donna Irwin, who was a Protestant, was given the post. He maintained that he was more experienced and better qualified for the post than she was. He alleged that all members of the interviewing panel and in particular, Tom Collins and Frances Bannon, had treated him less favourably than the successful candidate. He also maintained that a number of the factors used in assessing the candidates at interview such as interests, disposition, stability and motivation were very subjective. He maintained that the successful candidate did not have the experience of print management which he considered necessary for the position of Publications Manager. In this regard he referred to remarks made to him by the successful candidate not long after she was appointed and her attendance at what he termed a "training day" with one of the University's main printers. The applicant also suggested but did not pursue an allegation that there was an institution wide culture at Queens of not appointing internal candidates to positions advertised externally. The applicant also alleged that the successful candidate was favoured because of her experience as a journalist which was the same as Mr Collins' background, although again he did not pursue this point because in his own words he "felt this was not advantageous to his case". The applicant also suggested that Mr Collins' involvement in some previous fair employment tribunal cases was significant.

The job description and employee specification for this post were drawn up by Mr Collins. The job description for the post of Publications Manager read:-

"To manage and develop the University's official publications, to ensure the implementation of the University's corporate identity programme and give advice to faculties and other University departments on their own publications.

MAJOR DUTIES:

Be the day-to-day manager of the University's corporate identity programme, ensuring it is applied properly across the campus by faculties, schools, institutes and other departments.

Manage the University's print requirements, working closely with the University's purchasing office to ensure the institution gets maximum quality for minimum costs, and maintaining close links with designers and printers.

Ensure official publications of the University are produced on time, to the highest standards and within budget.

Manage the University's print budget

Provide advice to faculties, institutes and departments on all aspects of their publications.

Generate ideas to develop existing publications and to launch new publications to take account of the institution's changing needs.

Maximise the use of electronic media as a cost-effective way of reaching internal and external audiences.

Manage the work of the publications team and ensure that its work is co-ordinated with other teams in the Communications Office.

Provide advice to the Vice-Chancellor and senior officers on publications issues.

Contribute to the work of the Communications office across all its area of responsibility."

At the time of the interviews for this post of Publications Manager the applicant who had worked for the respondent for a considerable time in various positions dealing with the publication of material under the auspices of the respondent was the Electronic Publications Officer for the respondent. He had been appointed to that post internally two to three months prior to the interviews which are the subject of these complaints as a result of a meeting with Mr Collins and Ms Bannon. Prior to that he had been a research fellow and editor of the Ordnance Survey Memoirs of Ireland series and oversaw the publication of forty volumes of this work. He also oversaw the production of the under-graduate and post-graduate prospectuses from manuscript to delivery. He won a Heist design award for the upgrading of the production of the post graduate prospectus in 1999.

The shortlisting and interview panel for this appointment was Professor Brian Caraher, Chair of English Literature – the convenor, Thomas Collins the respondent's Director of Communications who were both Catholic, Florence Gregg who was the respondent's Head of Purchasing and Francis Bannon who was a senior personnel officer. Both Ms Gregg and Ms Bannon were from the Protestant community. All four were full voting members of the interview panel and all four unanimously agreed to appoint Ms Irwin to the post and placed the applicant as the fourth reserve for the post. Ms Irwin was given an agreed panel mark of 69 and the applicant was given an agreed panel mark of 62. The applicant relied solely on a comparison between himself and Ms Irwin in suggesting that he should have been appointed to the post of Publications Manager.

The applicant alleged that the agreed panel marks given to himself and Ms Irwin were incorrectly allocated. He suggested that the 7 given to him under the category of "education and qualifications" was not appropriate when Ms Irwin was awarded 8 in this category bearing in mind that the applicant had a first class degree while the successful candidate's degree was a second class honours second division. He also queried the agreed panel mark of 9 which was weighted by 2 giving 18 to the successful candidate and the mark of 8 weighted by 2 giving him 16 in the category of "relevant experience". In this regard he pointed to his post graduate Diploma in Computer Science and Applications in relation to the essential criteria of being computer literate and he maintained that the successful candidate did not have experience in print management which was also one of the essential criteria.

In the categories from "presentation" through to "motivation" which the applicant maintained were all subjective, the applicant pointed in particular to the mark of 8 given by Mr Collins to the successful candidate for presentation and the 5 which he was awarded. The applicant queried how there could have been such a discrepancy when other interviewers had remarked on the successful candidate's nervousness and frantic hand movements. In this regard Mr Collins and two of the other interviewers pointed out that the applicant had taken more than the ten minutes allocated to do the presentation and had used a part of it to sell himself for the job which they considered to be inappropriate. With regard to the successful candidate's presentation while they accepted that she was nervous Ms Bannon and Ms Gregg together with Mr Collins found her presentation to be more creative and focused on the target audience than that of the applicant.

In the category of "intellectual ability" the applicant scored less marks from each interviewer except Professor Caraher than those awarded to the successful candidate. In challenging these the applicant again referred to his first class degree whereas the interviewers commented on his lack of focus on giving examples and his failure to deal adequately with some of the questions put to him. The largest discrepancy in this category were the marks given to Ms Irwin of 8 by Mr Collins and 6 for the applicant. All the other interviewers gave the applicant 7 in this category.

In the category of "interests" Mr Collins gave the applicant 7 and the successful candidate 9. Ms Bannon gave the applicant 8 in this category and the successful candidate 7. Ms Gregg gave the applicant 8 and the successful candidate 7 and Professor Caraher gave the applicant a 9 in this category and the successful candidate an 8. Overall the applicant scored one more mark in this category than the successful candidate.

Under the heading of "disposition and stability" which was aimed at working as part of a team and with other people and having qualities of leadership, Mr Collins gave the applicant 7 and the successful candidate 8. Ms Bannon gave the applicant 6 and the successful candidate 8. Professor Caraher gave the applicant 7 and the successful candidate 7 and Ms Gregg gave the applicant 8 and the successful candidate 7.

Under the category of "motivation" Mr Collins allocated the applicant 7 and the successful candidate 7 and Ms Bannon allocated the applicant 6 and the successful candidate 6. Professor Caraher allocated the applicant 9 and the successful candidate 8 and Ms Gregg allocated the applicant 7 and the successful candidate 8. Both the applicant and the successful candidate obtained the same overall mark for this category.

Only Professor Caraher scored the candidates under the factor of special factors. He allocated the applicant 8 in this regard and the successful candidate 9. He told the Tribunal that he would have registered a slight reservation with regard to working unsociable hours in the applicant's replies which had reduced his mark to 8 rather than the 9 which he awarded to the successful candidate.

The applicant and Mr Hamill both provided the Tribunal with written submissions which are attached to this decision and are intended to form part of it.

Having considered all the evidence and the submissions the Tribunal concluded that the applicant had not established that he had been unlawfully discriminated against on the grounds of religious belief or sex even bearing in mind the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001. The Tribunal accepted that both candidates had the relevant experience and qualifications for the post. However, the Tribunal found the explanations given by the respondent's witnesses for awarding the applicant less marks than the successful candidate to be convincing and satisfactory particularly when considered in the light of the evidence given to the Tribunal by the successful candidate in relation to her prior experience of print management and the reasons for her half day visit to one of the respondent's main printers soon after she was appointed.

The Tribunal did not accept the applicant's contention that the agreed marks allotted to him and the successful candidate under "education and qualifications" and under "relevant experience" were inappropriate. In regard to "education and qualifications" the applicant laid emphasis on his first class degree and Diploma in Computer Studies. However, the requirement was for a degree and two years' experience which both candidates had and the applicant's post graduate Diploma in Computer Studies did not come within the type of post graduate qualification specified as desirable for the post. The Tribunal also accepted that the successful candidate had wider experience in different organisations than the applicant.

With regard to the criteria of "relevant experience" where the applicant scored 16 and the successful candidate 18 the applicant laid great emphasis on the successful candidate's alleged lack of print management experience which he maintained should have merited a lesser mark than that allocated to him. Having heard the explanations and the successful candidate's evidence in this regard the Tribunal did not accept the applicant's contention that the marks in this category should have been reversed.

With regard to the marks for "presentation", where the successful candidate scored three more marks than the applicant the Tribunal was satisfied that the applicant had both run over the time allocated and had not been as focused as the successful candidate and while the successful candidate had been nervous the Tribunal did not consider the difference in marks awarded to be inappropriate having heard the explanations provided.

In the category of "intellectual ability" only Professor Caraher gave the applicant a better mark than the other interviewers. Again the applicant relied in his evidence on his first class degree. The three other interviewers gave him less marks than the successful candidate based largely on the successful candidate's ability to think on her feet and the applicant's lack of ability to focus on the questions asked.

In the category described as "interests" the applicant was awarded more marks overall in this category than the successful candidate. Only Mr Collins marked him lower than the successful candidate which may have reflected Mr Collins' desire for someone with journalistic experience.

In the category of "disposition/stability" which was assessed as the ability to work as part of a team and working on one's own ability and having qualities of leadership and an ability to relate to other people, the applicant scored 28 and the successful candidate scored 30. The Tribunal accepted the explanations given particularly by Mr Collins and Ms Bannon in this regard that their marks reflected a lack of ability on the part of the applicant to interact with the interviewing panel at times.

In relation to the category of "motivation" both candidates obtained the same overall marks in this category with Professor Caraher allocating the applicant one mark more than the successful candidate and Ms Gregg allocating the successful candidate one mark more than the applicant.

The Tribunal noted that Mr Collins gave the applicant less marks than the successful candidate in most categories and that Ms Bannon gave him less marks than the successful candidate in the categories of "intellectual ability" and "disposition/stability". The Tribunal therefore paid particular attention to the explanations given by Mr Collins and Ms Bannon for those marks. Mr Collins told the Tribunal that overall he found the successful candidate more suited to the post because he was looking for a person with the complete range of skills set out in the job description and he considered that her journalistic experience fitted her for the post. This is confirmed by the interview summary sheet where Professor Caraher noted that the successful candidate was "the agreed top candidate due to her wide range of experience in both small and large organisations. She performed well on both essential and desirable criteria. Her journalistic experience in writing and production fits well with the communication office's next major initiative, the launch of a campus newspaper for which the Publications Manager will be largely responsible. It was a very strong field with four reserves". The Tribunal also found the explanations given by Ms Bannon with regard to these attributes to be satisfactory.

In all the circumstances therefore the Tribunal was satisfied with the explanations given for the lower marks allocated individually and overall to the applicant as opposed to the successful candidate. In the circumstances the Tribunal does not accept that the applicant was unlawfully discriminated against on the grounds of either religious belief or sex.

Chairman:

Date and place of hearing: 18, 19, 20 and 21 August 2003 Belfast

Date decision recorded in register and issued to parties: