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Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Maxwell v Newry and Mourne District Council [2003] NIFET 534_00 (27 November 2003)
URL: http://www.bailii.org/nie/cases/NIFET/2003/534_00.html
Cite as: [2003] NIFET 534_00, [2003] NIFET 534_
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- We have to say that we, as a Tribunal, found the system for allocating bonus work confused and unsatisfactory, and Ms Sweeney, who at the relevant time was Equal Opportunities Officer, conceded that it was not an open and transparent system.
- We would make two other points with regard to the allocation of bonus work:-
- We now turn to the claimant's allegations in respect of overtime work.
- The respondent Council advanced various explanations for the discrepancy in overtime payments:-
- Overall, in this case we have been confronted with a public body whose policies in the areas subject to scrutiny were confused and lacked transparency and openness, and where criteria employed in the appointment process were highly subjective. In fairness to the respondent Council, their officials did not seek to deny this, and indicated that in the latter respect, at least, changes had been made.
CASE REF: 00534/00 FET
CLAIMANT: Ronald Maxwell
RESPONDENT: Newry and Mourne District Council
The unanimous decision of the Tribunal is that:-
(i) the claimant's complaints (so far as they relate to alleged discrimination on the grounds of religious belief in the allocation of bonus and overtime work) have been presented within the prescribed time limit;
(ii) the claimant was not discriminated against by the respondent Council on the ground of his religious belief; and
(iii) the claimant was not discriminated against by way of victimisation by the respondent Council.
Appearances:
The claimant was represented by Ms S Bradley, Barrister-at-Law, instructed by The Equality Commission for Northern Ireland.
The respondent was represented by Ms M Larkin, Barrister-at-Law, instructed by McShane & Company, Solicitors.
| 1. | (i) | By an application dated 27 November 2000 and presented to the Tribunal on 1 December 2000, the claimant, Ronald Maxwell, an employee of the respondent Newry and Mourne District Council, alleged that he had been discriminated against on the ground of his religious belief and also by way of victimisation by the latter. Mr Maxwell is a Protestant, and his comparators are Roman Catholic. |
| (ii) | The respondent denies that it discriminated against the claimant as alleged. | |
| 2. | (i) | In order to determine the matter the Tribunal heard evidence from the claimant, Mr Maxwell. It heard evidence from Mr David Sands, Mr Edward Clarke, and Mr Peter Kearns on his behalf. Mr Sands and Mr Clarke were HGV Refuse Drivers with the Council. Both were also SIPTU Shop Stewards. Mr Kearns was Senior Convenor for SIPTU. Dr Myles T Shortall also gave evidence on the claimant's behalf. |
| (ii) | The following witnesses gave evidence on behalf of the respondent Council:- Mr Leo Dougan (a Civil Servant in the Belfast Tax Credit Office of the Inland Revenue); Mr Earl Smyth (Senior Clerical Officer, Personnel Department of the respondent Council); Mr Kenneth Mackin (Supervisor, Grounds Maintenance Department); Mr Des Brady (Cleansing Department); Mr Liam Dinsmore (Management Services Officer); Ms Catherine Sweeney (who at the relevant time was the Council's Equality Officer, and is now Personnel Manager); and Mr Jim McCorry (Director of Technical and Leisure Services). |
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| (iii) | The Tribunal has also had regard to the documentary evidence submitted by the parties. | |
| 3. | (i) | The issues for the Tribunal were as follows:- |
(a) Was the claimant unlawfully discriminated against on the ground of his religious belief by the respondent Council in the allocation of work which attracted a bonus payment?
(b) Was the claimant unlawfully discriminated against on the ground of his religious belief by the respondent Council in the allocation of overtime work?
(c) Was the claimant unlawfully discriminated against on the ground of his religious belief and by way of victimisation by the respondent Council by virtue of its failure to appoint him to the position of Reserve Loader? He applied for this post in August 2000 and was informed that he had not been successful on 27 September 2000.
| (ii) | In closing submissions it was contended on behalf of the respondent Council that the claimant's application, so far as it related to the allocation of bonus and overtime work, was out-of-time. It was only at this final stage of somewhat protracted proceedings that this issue was raised. | |
| 4. | (i) | In relation to the time issue surrounding the allocation of bonus and overtime work, the respondent argued that matters had been resolved in meetings which culminated on 26 June 2004, to which reference is made below, and that these complaints relate to discrete issues, which are out-of-time. |
| (ii) | The relevant law relating to time limits is contained in Article 46(1)(a), (5), and (6) of the Fair Employment and Treatment (Northern Ireland) Order 1998, which provides for a 3 month time limit (the one applicable here) which may be extended where, in all the circumstances of the case, it is just and equitable to do so. It is also provided that a continuing act, or an act extending over a period, shall be treated as done at the end of that period. |
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| (iii) | We have considered Hendriks v Metropolitan Police Commission [2003] IRLR 96. In that case the Court of Appeal took a broad view of the concept of a continuing act, and indicated that the focus should be on whether there is an "ongoing situation or continuing state of affairs" in which alleged incidents of discrimination were linked to one another rather than whether it is possible to identify some 'policy rule scheme regime or practice' in accordance with which decisions affecting the treatment of workers were taken. (See in particular : per Mummery LJ, at 101). In this case we are satisfied that we are dealing with a succession of discriminatory acts which are not unconnected or isolated, but which constituted an act extending over a period. As will be seen, there are common threads running throughout the claimant's complaints, in that he alleges that there was discrimination against Protestants generally within the Council and not just him, and also in the fact that Mr Brady was involved in each of the complaints against him. Consequently, we are satisfied that his complaints were brought in time. |
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| 5. | (i) | If we are wrong in our conclusion expressed at the previous paragraph that we are here dealing with a continuing act with the consequence that his complaints relating to overtime and bonus work are in time, we nonetheless consider that, in all the circumstances of this case, it is just and equitable to extend the time limit for presenting them. In reaching that conclusion we are mindful that time limits exist for a purpose and should be observed unless there is good reason not to do so. However, it is equally clear that the 'just and equitable' rule (which appears predominantly in discrimination law) is wider than its 'reasonably practicable' counterpart found elsewhere in employment law. (See Mills and Another v Marshall [1998] IRLR 494 EAT.) |
| (ii) | If the complaints relating to bonus work and overtime work are out-of-time, they are out-of-time by approximately five months. However, in the particular circumstances of this case, we would not regard that period as excessive. The claimant acted in good faith, and reasonably, attempting to resolve the bonus and overtime issues with the help of his union, and to put them behind him. From his point of view, it was the subsequent failure to appoint him which called into question the respondent's good faith. |
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| (iii) | We are further satisfied that the cogency of the evidence of witnesses would not be affected by extending the time limit. Additionally, in view of the extensive documentary evidence which exists in the case, the issues between the parties have always been clear. Consequently, we consider that a fair trial is possible. |
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| 6. | (i) | We now turn to consider the substantive issues in the case. The relevant law relating to discrimination on the ground of religious belief or political opinion and discrimination by way of victimisation is set out at Article 3 of the Fair Employment and Treatment (Northern Ireland) Order 1998 as amended by the Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003. In applying the law, Courts and Tribunals are required to have regard to the so-called Barton guidance. (See Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332 EAT, approved by the English Court of Appeal in amended form in Igen Ltd (formerly Leeds Careers Guidance) and Others v Wong; Chamberlain Solicitors and Another v Emokpae; Brunel University v Webster [2005] IRLR 258.) |
| (ii) | In relation to these substantive issues, the Tribunal finds the facts set out in the following paragraphs. | |
| 7. | (i) | The claimant, Mr Maxwell, has worked for the respondent Council since 10 May 1999. He was employed by them as a Driver/General Labourer under the provisions of the Litter Order. |
| (ii) | He is a Protestant, and is one of two or three Protestants employed in the respondent Council's Cleansing Department, which had around 30 employees. Managers in the Technical Services Department were all Roman Catholic. | |
| (iii) | The Council's monitoring figures for 1998 – 2001 indicated that in these years the proportion of Protestants employed by it varied from 8% - 11%. The catchment area of the Council had a population which was 92% Roman Catholic and 8% Protestant, so that the breakdown of the employees was within these bands. |
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| 8. | (i) | The claimant's first ground of complaint relates to the allocation of bonus work. |
| (ii) | It is clear that, particularly because of high levels of sick leave in the Department where the claimant worked, there was a lot of bonus work on offer. The claimant accepts that his contract of employment did not automatically entitle him to bonus work. |
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| (iii) | When a full-time employee was sick or absent, and work attracting a bonus was on offer, that work was initially offered to full-time Council employees, then temporary staff, then agency workers in that order of priority. Although the parties do not dispute this order of priority, the claimant and his witnesses (officials of his trade union) claimed that there was a union management making provision for the allocation of bonus work. The respondent, in its response to the statutory questionnaire, stated that there was no formal policy on the allocation of bonus work, but that it was custom and practice to allocate such work (and overtime) on a fair and equitable basis and to give priority to permanent employees to earn overtime/bonuses over temporary and agency workers. |
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| (iv) | The claimant alleges that he was less favourably treated than Roman Catholic employees in the allocation of bonus work. He points to a fellow employee, Mr Joseph Smyth, a Roman Catholic, who was employed on exactly the same type of contract as he was, who was offered bonus work with more frequency. According to the claimant, Mr Smyth was getting bonus work (work £12.00 a day) on five days per week, whereas he, the claimant, was only getting such work two or three days a week. |
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| (v) | Furthermore, the claimant alleges that his supervisor, Mr Des Brady, the Cleansing Officer, in contravention of the order of priority of offering bonus work, allocated it to agency workers when the claimant was available to do the work. The claimant makes reference to four specific incidents when this allegedly took place. | |
| 9. | (i) | On 11 April 2000 the claimant was allocated work on the 'cardboard' lorry. (As it name suggests this vehicle picked up packaging and other rubbish outside commercial premises.) This was not work which attracted a bonus. |
| (ii) | However, although the claimant makes his complaint against Mr Brady, it was not the latter who was responsible for allocating work on that day. The work had been allocated by Mr Brady's deputy in his absence. The following day, he admitted that he had been wrong and told the claimant that he would get him bonus work. | |
| 10. | (i) | A further incident took place on 17 April 2000. On that occasion agency workers were sent out on a refuse lorry, which was bonus work. The claimant was sent to collect refuse at caravan sites (this did not attract a bonus). |
| (ii) | He remonstrated with Mr Brady, and reported this allocation of work to Mr Davy Sands, his trade union (SIPTU) representative. The claimant alleged to Mr Sands that he had not been allocated bonus work because he was a Protestant. Mr Sands in turn confronted Mr Brady in the yard and told him what the claimant had alleged. |
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| (iii) | Mr Brady then spoke to the claimant about his allegation, and the claimant does not dispute that in the course of this conversation he denied that religion was a factor. He says that the reason he denied it was because he was embarrassed. Other workers were still present at the yard and within earshot. | |
| (iv) | It was insensitive of Mr Brady to discuss this matter in the yard as opposed to the privacy of his office, though we accept that at the time he, too, was embarrassed and uncomfortable, by virtue of the nature of the allegation made against him. While we can understand the claimant's reluctance to discuss his complaint in what was effectively a public place, we are satisfied that in subsequent meetings with management, when he had the opportunity to make out and pursue his complaint of religious discrimination in the privacy of an office, he did not do so and again denied that religion was a factor. |
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| (v) | In relation to one of these meetings, when the claimant met with Mr Dinsmore, the Management Services Officer, there is a dispute between the claimant and Mr Dinsmore as to what was said. The claimant is emphatic that he mentioned religion as a factor. However, Mr Dinsmore's evidence that the claimant again denied that he had been discrimination against on account of his religion is supported by his notes. Mr Dinsmore's notes have been challenged as unreliable. The claimant was not given an opportunity to countersign them. There are some inaccuracies in his notes and diary entries, and his diary entries were not disclosed until after the hearing commenced. |
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| (vi) | However, notwithstanding these discrepancies, we are satisfied that Mr Dinsmore's recollection of this meeting is correct. It is consistent with the claimant's conduct at a subsequent meeting with Mr McCorry, the Director of Technical and Leisure Services, on 22 May 2003 when the claimant again indicated that he did not believe the decision to allocate bonus work was the result of discrimination on the grounds of his religion. His explanation for not mentioning it on that occasion is that he would have been uncomfortable bringing it up, having regard to the relative positions of himself and Mr McCorry is the Council's hierarchy. However, he was accompanied by the trade union representative, Mr Kearns, on that occasion, and when subsequently, on 24 May 2000, Mr McCorry wrote to Mr Kearns, dealing with the issue raised at the meeting, he reiterated that, "[d]uring the meeting, Mr Maxwell indicated that he did not believe the decision to allocate bonus was based on any discriminatory basis for work allocated due to his religion". The contents of that letter were not challenged by the claimant or his trade union representative. |
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| 11. | (i) | On 2 May 2000, Mr Brady allocated bonus work to an agency worker, and the claimant was again sent out on the cardboard lorry, which did not attract a bonus. |
| (ii) | According to Mr Brady, this was an oversight on his part. He had not seen the claimant in the yard and believed he was out at work. However, a short time earlier the claimant, who had been off work ill the day before, had obtained a 'pink sheet' (ie a sickness absence form) from Mr Brady. |
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| (iii) | Notwithstanding this, we believe Mr Brady when he says that it was a genuine oversight on his part. This incident happened first thing in the morning, when the lorries were being crewed up in the yard, with 30 – 40 men milling around. Against the background of such a hectic and busy scene, we do not find this oversight on Mr Brady's part surprising, or not credible. | |
| (iv) | When this incident was brought to the attention of Mr Dinsmore, he decided, having heard the circumstances of what had happened, that the claimant should be paid a bonus for that day. In this respect, Mr Dinsmore treated the claimant fairly. More generally, we find that managers in the respondent Council took seriously any allegation of religious discrimination, referring it up to more senior managers and ultimately to the Equal Opportunities Officer. |
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| 12. | (i) | On 22 May 2000, three or four agency workers were again allocated bonus work in preference to the claimant, who was required to do non-bonus work at caravan sites. On this occasion the allocation of work was again made, not by Mr Brady, but by his deputy. |
| (ii) | According to the respondent's witnesses, the claimant was sent on the caravan run because he knew the route. It was also more appropriate to use the claimant on that date, particularly for collection points, as new bins had been issued to caravan park owners. While it is clear that at least one of the agency men also knew the caravan route, we are satisfied that the decision to use the claimant on that route was made on operational grounds, and that his religion did not come into the matter. |
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| 13. | (i) | Following the incident of 22 May 2000, the claimant phoned the Equality Commission for advice. On 30 May 2000, he phoned Catherine Sweeney. He did not say who he was. She asked him if he was Mr Maxwell, saying that it had come up in conversation that he was going to a statutory agency. The claimant became agitated when she identified him, and made it clear that he did not want to speak to her. After that the claimant had no further contact with Ms Sweeney. |
| (ii) | On 26 June 2000, the claimant had a meeting with Liam Dinsmore. He was accompanied by Peter Kearns (his SIPTU convenor). It was at this meeting Liam Dinsmore told the claimant he would be paid for 2 May 2000. There was some discussion of payment for 11 and 17 April 2000. However, no one ever came back to the claimant about these days. Mr Dinsmore, for his part, believed that matters relating to the claimant had been resolved, and he was surprised to find that the claimant had contacted the Equality Commission. |
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| 14. | (i) | As far as the claimant's allegation of less favourable treatment compared with Mr Smyth is concerned, there is a difference of £1,499.00 in payment for bonus work between the claimant and him over the period in question. |
| (ii) | Although the crew sheets for lorries were made out by Mr Brady (or his deputy in his absence) the evening before, this arrangement might have to be changed at short notice the next morning because of such factors as workers reporting sick. The imperative was to get the lorries out on the road as early as possible and crew members were keen to get going. The sooner they got out, the sooner they got back. Consequently, if a worker was not at his place of work when bonus work was allocated, then he would lose out on the chance to do such work. This was not disputed by the claimant. |
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| (iii) | We accept the evidence of the respondent's witnesses that the claimant generally did not arrive at work as early as other workers did, and that this in part was a reason why he did not obtain bonus work. Seniority was also a factor applied by the respondent. Mr Smyth was senior to the claimant, though not, it has to be said, by very much (he was appointed on 14 December 1998). The respondent's witnesses have confirmed that those with the longest service got priority in the allocation of bonus work. This principle was disputed by the claimant's witnesses in this (but not other) contexts. According to them it played no part in the agreement with management. Be that as it may, it was a principle which management applied, and it adversely affected the claimant compared with Mr Smyth, though not because of his religion. |
(i) Firstly, Mr Brady has been characterised as the prime mover, as it were, against the claimant. He is a Roman Catholic but he is married to a Protestant. While it is not inconceivable that someone in his position might discriminate against a Protestant worker, it seems to us unlikely that he would do so, and we believed Mr Brady when he said in evidence that as a lifelong and committed trade unionist he had no time for religion in the workplace.
We set out here that this applies equally to the claimant's allegations in respect of overtime payments and the failure to appoint him (where Mr Brady was a member of the panel).
(ii) Secondly, Mr Sands, the claimant's Shop Steward, who was also a Protestant, was allocated substantial bonus work by Mr Brady. This is despite the fact that there was clearly no love lost between them, and that the former was something of a thorn on the latter's side.
The same is true in relation to the allocation of overtime work.
We are therefore satisfied that in relation to the allocation of bonus work that the claimant was not discriminated against by the respondent Council because of his religious belief.
(i) The allocation of overtime work was undertaken by Mr Brady. Again, the claimant compares himself with Mr Joseph Smyth, a Roman Catholic. In the period from May 1999 – May 2001 the latter earned approximately £7,000.00 more in overtime than the claimant. This is a substantial amount, which is not disputed by the respondent.
(ii) There is some evidence that after the issue of religious discrimination was raised on 17 April 2000 there was an increase in both the bonus and overtime payments made to the claimant. Equally, the claimant was in receipt of benefit at the relevant time (Working Families Tax Credit) and there is also evidence of a notable dip in his earnings for benefit calculation weeks. Seasonal factors such as the beginning of the caravan park holiday season also enter into the equation so that in these respects the evidence is overall inconclusive.
(i) Firstly, Mr Smyth, the claimant's comparator, was always looking for, and asking for, overtime, whereas the claimant made clear to Mr Brady that he was reluctant to do it because he was in receipt of benefit and the extra earnings would affect the level of that benefit. (A reluctance to do overtime for that reason was not confined to the claimant.) The claimant denied this, stating that he was not aware of how Working Families Tax Credit worked, and that he would not have refused overtime for that reason.
(ii) We accept the evidence of Mr Brady on this point. It seems to us perfectly credible that the claimant was reluctant to do overtime for that reason, and it does not seem to us to be a reason that Mr Brady would make up. We would find it surprising if the claimant were not keeping an eye on his benefit entitlement.
(iii) Whereas Mr Smyth was always asking for overtime, the claimant believed that one had to be asked to do it (though there was, of course, no obligation on an employee to do it). He is supported in this by his union representative, who maintained there was no requirement to volunteer.
(iv) Availability (in the sense of being in early for work) and seniority also played parts, as they did in relation to bonus work. As far as the latter was concerned, there was nothing in writing to indicate that it was a factor, though it was the practice within the Council to treat it as such.
(v) The situation with regard to the allocation of overtime work within the Council also seems to us to have been unsatisfactory. Indeed the system as it operated had been subject to many complaints, and the trade union side had attempted, without success, to secure the introduction of a rota for overtime. Had there been such a rota system with the policy with regard to its allocation spelled out then people would at least have known where they stood.
(vi) It seems to us that what we are dealing with here are lax procedures. However, there is nothing in the evidence from which we draw any inference of discrimination. We accept the respondent Council's explanation for the difference in overtime payments, and are satisfied that the claimant was not discriminated against in the allocation of overtime on the ground of his religious belief.
| 19. | (i) | We now turn to the claimant's final allegations, namely that he was discriminated against on the grounds of his religion and suffered victimisation by the respondent Council by virtue of his failure to be appointed to the position of Reserve Loader. The allegation of victimisation is that the respondent was motivated to so act by the fact that he had previously complained that he was being discriminated against by Mr Brady on the ground of his religion and had indicated an intention to complain to the Equality Commission. |
| (ii) | In August 2000 the respondent Council carried out a recruitment exercise for three positions as Reserve Refuse Loaders. This exercise took place against the background of the claimant's previous allegations of discrimination against the Council. | |
| (iii) | The 'Qualifications/Experience/Requirements' for the posts were set out in the trawl notice as follows:- |
"1. Applicants must be physically fit and have at least two years experience of outdoor labouring activities.
2. Preference may be given to applicants who have previous experience in refuse collection work.
3. Preference may be given to applicants who hold a current LGV Category C driving licence."
| (iv) | The members of the short listing - |
Mr Smyth, from Personnel (who was a Protestant);
Mr Brady, the supervisor in the Department where the posts arose (he was, as indicated, a Roman Catholic married to a Protestant); and
Mr Mackin, another supervisor appointed to the panel by Personnel (Mr Mackin was a Roman Catholic).
| The claimant, Mr Maxwell, was short listed, and went forward to the interviews which took place on 20 September 2000. | ||
| (v) | The members of the interview panel were those who had carried out the short listing. The claimant was notified on 27 September 2000 that he had been unsuccessful. However, he was placed as a reserve candidate (Reserve Candidate 4) and he and Joseph Smyth, who was also placed as a reserve candidate (No 2), did in fact take up positions of Reserve Refuse Loaders within a week of each other in May 2001. (The candidate ranked No 3 was Mr McCaul. The Council was prepared to appoint him without a reference. However, we find that this was again done so due to a lax and casual attitude to procedures, and we do not draw any inference of discrimination.) |
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| (vi) | In essence, it is the claimant's case that it is inconceivable that someone of his length and breadth of experience was not appointed, and he believes that the primary reason for his non-appointment was the presence of Mr Brady on the short listing and selection panels. | |
| 20. | (i) | One of the candidates for the position of Reserve Refuse Loader, a Tony Mackey, was a nephew by marriage of Mr Brady. Mr Mackey is a Protestant. Mr Brady indicated to Mr Smyth and Mr Mackin that he was related, by marriage, to one of the candidates without identifying the candidate. |
| (ii) | Mr Smyth, as the representative from Personnel, said that he did not believe that this was a close enough relationship to disqualify Mr Brady from sitting on the panel. Mr Smyth was wrong in this belief. The Local Government Staff Commission (LGSC) Guidance Notes on Recruitment and Selection state at Paragraph 1.26 that members of short listing/interview panels should not participate in such procedures if a family relationship is known to exist between the panel member and any person who is applying for a particular post with the Council. The family relationship, as defined, include the nephew of the spouse of the Council officer. |
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| (iii) | It is clear, therefore, that Mr Brady should not have been on the panel at either stage. We do not draw any inference of discrimination from this breach of procedure. The Tribunal accepts the explanation of Mr Smyth that he made a genuine mistake about Mr Brady's eligibility, for which, it has to be said, he did not attempt to shirk his responsibility in any way. Mr Smyth's mistake was most regrettable, but there was no deliberate impropriety in his actions. As far as Mr Brady is concerned, although he properly brought the relationship to Mr Smyth's attention, he was not in fact aware of the detailed provision in the LGSC Code. |
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| 21. | (i) | The claimant went through to interview for short listing and there is no dispute that he was well qualified to go through. He had been labouring for 16 years, and all the jobs which he had held had been of a manual nature. Although his complaint relates to the failure to appoint him, he also relies on what happened at the short listing stage as evidence of discrimination against him and Protestants generally in the whole appointment process. He contends that at short listing Roman Catholics candidates who did not meet the short listing criteria went through to interview, whereas suitably qualified Protestants candidates were held back. |
| (ii) | At short listing the panel applied the mandatory criterion No 1 (physically fit/two years experience of outdoor labouring activities); desirable criterion No 2 (previous experience in refuse collection work); and desirable criterion No 3 (current LGV Category C driving licence) was to be applied should it become necessary to whittle down the number of candidates for interview to a manageable number. | |
| (iii) | The basis on which the short listing panel proceeded was to give applicants the benefit of the doubt when deciding whether they met the two criterion which were being applied. They adopted this approach because they were dealing with applicants who were applying for manual positions, and they felt that such persons would not have the literary skills or experience of filling in application forms in a way that necessarily reflected their experience. They therefore looked at candidates' forms in their entirety, and also with their own knowledge of local firms and the nature of their businesses, to help decide if candidates met the criterion. The intention therefore was to shortlist in, leaving any doubts about whether a candidate met the criterion to be resolved at interview. |
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| (iv) | We are satisfied that the adoption of such an approach was an honest attempt by the short listing panel to be fair to potential applicants, and in itself was not objectionable having regard to the applicants with whom they were dealing. However, it did give them a wide element of subjective discretion. The downside is that it also gave the impression of a lax or elastic approach to short listing, leading to allegations that it was carried out on a discriminatory basis. | |
| 22. | (i) | The Tribunal has had its attention drawn to many of the application forms, and has considered them against the short listing criterion. Among those drawn to our attention were those of Mr Gallagher and Mr Gibney (who were ultimately successful candidates in order 1 and 2 following interview). It is said by the claimant that they should not even have been short listed. On the face of their application forms, Mr Gibney appeared to have only two months experience of labouring activities, and Mr Gallagher to have only 121/2 months outdoor experience. However, the short listing panel took into account Mr Gibney's service as a soldier in the Irish Army as evidence of outdoor labouring activity. They assumed that even had he been deployed in a non-combat role, training, etc commitments would have taken him outdoors. Mr Gallagher's experience at litter picking at Drumartine Priory over a ten year period was accepted as evidence of his outdoor experience, though there was little, if any, evidence of the frequency with which he did this. In relation to another applicant, a Mr Jones, a Protestant, who was short listed out, the decision was arguably wrong even on the basis on which the panel proceeded. However, in saying this, the Tribunal did not have any evidence before it in relation to those Roman Catholic applicants who were not short listed. Consequently, there is no material from which we can infer that Roman Catholics were generally given the benefit of the doubt at the short listing stage. |
| (iii) | We consider that insofar as the short listing process can be attacked, it is because of the lax procedures used, and not because of any desire on the part of the panel to favour particular candidates because of their religion. | |
| 23. | (i) | As far as the interview itself was concerned, a list of questions to be put to candidates was drawn up by Mr Brady, as the relevant supervisor. Mr Brady also suggested model answers, which were discussed by the panel, though they were not reduced to writing. Mr Mackin, however, would have had some idea of the answers expected based on his own experience as a supervisor. |
| (ii) | At the outset of the interview the application forms which had been used at short listing were also used for clarification. The Chairman of the panel asked candidates about what was on the form and what they had worked at. It appears that this procedure was followed for each candidate and not just those whose short listing had thrown up queries. | |
| (iii) | The interview proceeded in the same way for each candidate, with everyone being asked the same questions. A candidates' performance was marked against six categories. These were:- |
physical appearance/performance in interview;
response to questions;
attainments;
experience;
general intelligence; and
disposition.
| (iv) | The striking thing about these categories is their subjectivity (eg physical appearance, general intelligence/disposition) or the overlap between them (eg performance at interviews/response to questions/general intelligence). We have been told that some of these categories are no longer used. However, it is clear from the score sheets and the comments on them that their use in the appointment process with which we are concerned resulted in elements of cross-marking or double-marking for candidates. The overall effect of such a system is to make the assessment of candidates on an objective basis very difficult, and more significantly, it has the propensity to make discrimination easy. |
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| (v) | Notwithstanding these reservations, we are satisfied that marking by the panel was carried out fairly and honestly and that no candidate, including the claimant, received a higher or lower mark than he should have done because of his religion. Candidates were marked individually, with their marks totalled at the end of the interview. Placings, as opposed to total marks, were aggregated, though this did not make any difference to the claimant in terms of not being appointed. The interviewers were able to stand over the marks which they had given. |
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| (vi) | Performance at interview, together with what was stated on the application forms, was the basis of the panel's assessment. We accept the evidence of the interview panel that the claimant did not perform as well at interview as some of the other candidates. The claimant had came through the short listing process on an equal footing as the other candidates, and at interview was asked the same questions as everyone else. There was no great range on the marks awarded to the candidates. The claimant got good marks from two of the interviews, Mr Smyth and Mr Brady (the latter being the person against whom the main thrust of his allegations were directed). It was Mr Mackin, who was not aware of the complaint against Mr Brady, whose marks brought the claimant down. Although Mr Brady should not have sat on the panel, and although he placed Mr Mackey second overall, we are satisfied that he treated everyone fairly at interview, and overall his marks among candidates was close. We believe Mr Brady when he states that he was not influenced by anything that had happened before in relation to the claimant. |
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| (vi) | We also reiterate what we said earlier about the unlikelihood of Mr Brady, who was married to a Protestant, discriminating against a Protestant. This has even greater force in relation to Mr Smyth, who was a Protestant. He gave evidence that, as a Protestant, he had never experienced difficulty working for the respondent Council nor had he experienced discrimination on the ground of his religion. | |
| (vii) | We are therefore satisfied that in relation to the failure to appoint the claimant to the post of Reserve Loader, the respondent Council did not discriminate against him on the ground of his religious belief, or by way of victimisation. |
The claimant, Mr Maxwell, appears to us to be a thoroughly decent and conscientious worker. The proceedings have adversely affected his health. It is not hard to understand why he felt that he was being done down, and that his religion came into the equation.
The applications are dismissed.
Chairman:
Date and place of hearing: 24, 25 and 27 November 2003; 7, 8, 9, 10 and 11 February 2005; and 1, 2 and 3 March 2005
Date decision recorded in register and issued to parties: