Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 104/01FET

APPLICANT: Patrick McParland

RESPONDENT: Belfast City Council

DECISION ON REMEDY

The unanimous decision of the Tribunal is that the respondent is ordered to compensate the applicant in the sum of £7,760 to include interest of £1,760 under the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (NI) 1996.

Appearances:

The applicant appeared in person.

The respondent was represented by Mr A Colmer, Barrister-at-Law, instructed by the Director of Legal Services.

1. This Tribunal by a decision registered and issued to the parties on 17 June 2003 concluded that the applicant was unlawfully discriminated against by way of victimisation in the arrangements made by the respondent for the purpose of determining who should be offered the post of Buildings Officer (Mechanical Services) in November 2000. The hearing was then adjourned for the determination of remedy.
2. The Tribunal reconvened on 20 December 2004 to determine the appropriate remedy. Having heard the parties, the tribunal unanimously concluded:-

(1) they were not satisfied that, but for the discrimination, the applicant would have been appointed to the post, but that –

(2) he should be compensated in the sum of £6,000 in respect of the injury to his feelings caused by the unlawful discrimination.

3. The essence of the Tribunal's decision on liability was that we did not believe the respondent's explanation for failing to evaluate the 1964 qualification of the applicant – Membership of the Institute of Heating and Ventilation Engineers. The selection panel said that they did not regard this membership as a qualification at all but merely as a membership but the Tribunal concluded that this was not the reason why the applicant was not shortlisted when two other candidates were shortlisted. The Tribunal concluded that the applicant should have been shortlisted.
4. There is, of course, a major difference between finding that a candidate should have been shortlisted and finding that, but for that failure to shortlist, that candidate would have been appointed to the post. We did not find that the applicant was better qualified or more experienced than the two candidates who were shortlisted nor could we reach any conclusion as to how the applicant would have performed at interview as against the two candidates who were interviewed. We do not believe that it would be just and equitable to conclude that the applicant, because he had a one in three chance of appointment, should be compensated for one third of his loss in not being appointed. The onus is upon the applicant to demonstrate that he is entitled to be compensated for loss, but, unfortunately for him, he has not done that to our satisfaction.
5. We believe that the applicant's feelings were significantly injured by the failure to shortlist him, by the attitude displayed to his qualifications and by the persistence with which the respondent clung to that attitude in the face of clear and unambiguous entries in the application form. We believe that this injury can be measured by the sum of £6,000.
6. We are required by the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (NI) 1996 to consider whether to include interest on this sum of £6,000. We believe that interest should be included – indeed we can think of no reason why it should not. We must then award interest subject to and in accordance with these Regulations unless we believe there are circumstances which would have the effect of serious injustice if interest were to be awarded in respect of the period specified in Regulation 7(1)(a). We accept that, between the date of the decision on liability and the date of this decision, there has been untoward delay in progressing this matter through no fault of either party. This delay is regretted. We do believe that this delay constitutes a circumstance which relates to the case 'as a whole' and that serious injustice would be caused if interest was awarded for this entire period. We therefore award interest as follows:-

07/11/00	date of act of discrimination to 06/11/01
[£6,000 @ 8%]]	£480
year to 06/11/02	£480
year to 06/11/03	£480
from 07/11/03 to 06/07/04	£320
	£1,760

Accordingly we award interest of £1,760 to 6 July 2004 but do not award interest in respect of the period from 7 July 2004 until today.

This is a relevant decision under the Fair Employment Tribunal (Interest) Order (Northern Ireland) 1992.

______________________________________

J E MAGUIRE

President

Date and place of hearing: 20 November 2003 and 20 December 2004, Belfast

Date decision recorded in register and issued to parties: