Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 00305/00FET

01012/00

01172/00

APPLICANT: Dr Jane Hubbard

RESPONDENT: Derry City Council

DECISION

The unanimous decisions of the Tribunal are that:-

(i) the applicant's complaints of unlawful discrimination on grounds of sex and race are dismissed having been withdrawn by the applicant at the outset of the hearing.

(ii) the applicant's complaint of unlawful discrimination on grounds of religious belief in connection with her non-appointment to the post of Curator of Museums is not well founded. The applicant indicated during the hearing that she was not pursuing any complaint in relation to political opinion.

(iii) the applicant's complaints of unlawful discrimination by way of victimisation in relation to previous proceedings brought by her in relation to allegations of unlawful discrimination on grounds of religious belief, sex and race are not well founded.

(iv) The complaints given the case reference numbers above are therefore dismissed.

This decision is given in extended form because the Tribunal considers that reasons given in summary form would not sufficiently explain the grounds for its decision.

Appearances:

The applicant was represented by Mr M Conlon, a friend.

The respondent was represented by Ms A Finegan, Barrister-at-Law, instructed by Judith Blair Solicitors.

1. The applicant alleged originally that she, an English Protestant, was unlawfully discriminated against by the respondent on the grounds of religious belief/political opinion, sex and race when she was not appointed to the post of curator of museums and an English female, Harriet Purkis, whose religious belief was perceived as "Other" was appointed to the post.
2. The applicant at the outset of hearing withdrew the complaints in relation to unlawful discrimination on grounds of sex and race but continued with her complaint of unlawful discrimination on the grounds of religious belief.
3. The applicant also alleged that she had been unlawfully discriminated against by way of victimisation because she had previously brought proceedings in 1999 against the respondent in relation to her failure to be appointed to the post of Heritage and Museums Services Programme Organiser (HMPO) under the Fair Employment and Treatment (Northern Ireland) Order 1998, the Sex Discrimination (Northern Ireland) Order 1976 and the Race Relations (Northern Ireland) Order 1997.
4. In relation to the applicant's complaint of unlawful discrimination on grounds of religious belief the applicant maintained that she was better qualified and had more and better experience for the post of Curator of Museums than the successful candidate and that she had performed better at interview than the successful candidate. The applicant maintained that because she had the basic qualifications required for the post and also a PhD in Social Anthropology she had more and better qualifications than the successful candidate. She also maintained that because the successful candidate's subscription to the Museums Association, membership of which was a desirable requirement was not up-to-date at the time of the interviews the successful candidate should not have been appointed. The applicant also claimed that the successful candidate who had claimed to have a Bachelor of Arts degree in Economic and Social History and Economics on her application form but which was shown on her degree certificate to be a degree in Economics and Economic History should not have been appointed to the post on the grounds that this did not comply with the requirement as set out in the personnel specification for "a degree in history, Archaeology or a related discipline. (Any such related discipline should contain History or Archaeology, Curatorial practice, social History or Geography)."
5. The applicant also maintained that she had more and better experience than the successful candidate because she had nine years relevant experience and the successful candidate had seven years and two months relevant experience.
6. The applicant called Harriet Purkis as a witness. She did not establish from Ms Purkis her religious belief. The applicant relied on the respondent's description of Ms Purkis as an "Other" to ground her complaint of less favourable treatment on the grounds of religious belief. She relied on statistics which she produced which showed that the perceived religious belief of the employees in the Department of Leisure and Recreational Services in Derry City Council was 95% Roman Catholic and 5% Protestant/Other. She also placed significance on the fact that in the respondent's reply to the Statutory Questionnaire she, herself, was described as an "Other" despite the respondent knowing from her previous unsuccessful complaints that she was a Protestant.
7. Article 38(A) of the Fair Employment and Treatment (Northern Ireland) Order 1998 provides:

"Where, on the hearing of a complaint under Article 38, the complainant proves facts from which the Tribunal could, apart from this article conclude in the absence of an adequate explanation that the respondent:-

(a) Has committed an act of unlawful discrimination… against the complainant…

The Tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act."

8. The applicant and the respondent's representative provided the tribunal with written submissions which are attached hereto and are intended to form part of the decision.
9. The Tribunal was not satisfied that the applicant has established facts from which inferences could be drawn that the respondent treated the applicant less favourably than the successful candidate on the grounds of religious belief. That is because the statistics referred to by the applicant only showed a disparity of treatment as between Roman Catholics and Protestants/Others in the respondent's employment with nothing to demonstrate any difference in treatment between Protestants and Others and in these circumstances the Tribunal concluded that the applicant had not established a prima facie case in relation to this aspect of her complaints. That part of case reference number 00305/00FET which relates to unlawful discrimination on grounds of religious belief/political opinion is therefore dismissed.

Victimisation

10. With regard to the victimisation aspect of the applicant's complaints the applicant alleged that she had not been appointed to the post of Curator of Museums because she had brought previous complaints of unlawful discrimination on the grounds of race, sex and religious belief/political opinion arising out of her non-appointment to an earlier post of Heritage and Museum Services Programmes Organiser (HMPO). The applicant compared herself to the successful candidate Harriet Purkis who had also been unsuccessful in the competition for the previous post of HMPO but who had not raised any complaint about her non-appointment.
11. Five persons were interviewed for the post of Curator. The interviewing panel for this post consisted of Ms E Cavanagh, the respondent's Management Services Officer, Mr E McColgan, Head of Recreation and Leisure Services Department and Mr W White the respondent's Chief Building Control Officer. The professional assessor was Mr B Lacey who had previously been employed by the respondent. Miss Cavanagh had been asked to chair the panel by Mr Sidebottom, the respondent's Manager of Personnel Services. He and Mr Logue, the Town Clerk had both been on the appointments panel for the HMPO post for which the applicant had been unsuccessful and about which she had complained to the Fair Employment Tribunal and the Industrial Tribunal.
12. The applicant towards the end of her interview stood up and commented to the panel in a forceful manner that she believed the respondent has discriminated against her in the past and referred to statistics showing an imbalance as between Protestants and Roman Catholics in the Recreation & Leisure Department and asked for assurances that the panel would not discriminate against her in this appointment. The interviewers were taken aback at these comments. Ms Cavanagh assured the applicant that the panel's decision would be on merit. In so far as the applicant denied making remarks of this nature the Tribunal did not believe her. Three of the five persons interviewed were ruled out relatively quickly leaving the applicant and the ultimately successful candidate to be considered.
13. Article 3(4) and (5) of the Fair Employment and Treatment (Northern Ireland) Order 1998 provide:

"(4) A person ("A") discriminates by way of victimisation against another person ("B") in any circumstances relevant for the purposes of this Order if –

(a) he treats B less favourably than he treats or would treat other persons in those circumstances; and

(b) he does so for a reason mentioned in paragraph (5).

(5) The reasons are that –

(a) B has –

(i) brought proceedings against A or any other person under this Order; or

(ii) given evidence or information in connection with such proceedings brought by any person or any investigation under this Order; or

(iii) alleged that A or any other person has (whether or not the allegation so states) contravened this Order; or

(iv) otherwise done anything under or by reference to this Order in relation to A or any other person; or

(b) A knows that B intends to do any of those things or suspects that B has done, or intends to do, any of those things."

14. To establish unlawful discrimination by way of victimisation an applicant must prove that a protected act as set out in Article 5(a) or (b) above has occurred and that the respondent had knowledge or suspicion of it. The tribunal was satisfied that the applicant had done a protected act when she brought complaints in respect of the HMPO post.
15. The Tribunal was also satisfied that from the outset of this recruitment exercise Mr Logue and Mr Sidebottom knew the applicant had brought proceedings against the respondent in relation to her failure to be appointed to the post of HMPO. The Tribunal was also satisfied that Ms Cavanagh, part of whose duties was to deputise for Mr Sidebottom in his absence was aware from the outset of her involvement in this appointment process that the applicant had made complaints of unlawful discrimination in respect of the previous post. In so far as Ms Cavanagh sought to deny this the Tribunal did not believe her. With regard to the other persons who participated in the appointment process the Tribunal considers that even if they were not aware that the applicant had previously brought complaints against the respondent before they became involved in the short-listing and interview process the comments on the applicant's application form under experience would have caused them to inquire as to the background to those comments.
16. In so far therefore as the short-listing and interviewing panel members and the professional assessor denied knowing or suspecting that the applicant had brought previous complaints against the respondent the Tribunal did not believe them. This is particularly so in view of the applicant's forceful comments at the end of her interview which would have left them in no doubt that she had strong complaints to make about her previous treatment by the respondent and that at least one of the factors in these complaints was related to religious belief in view of her reference to the imbalances in the composition of the workforce in the Leisure and Recreation Department of the respondent in favour of Roman Catholics.
17. In these circumstances the Tribunal was satisfied that at the time of making the decision as to who was to be appointed to the post of Curator of Museums the interviewing panel were aware that the applicant had done or at least they suspected that she had done or intended to do a protected act under Article 3(4) and (5) of the Fair Employment and Treatment (Northern Ireland) Order 1998 and the similar provisions in the Sex Discrimination (Northern Ireland) Order 1976 and the Race Relations (Northern Ireland) Order 1997.
18. The Tribunal then went on to consider whether the applicant was less favourably treated than the successful candidate in not being appointed to the post of Curator.
19. The Tribunal was not satisfied that the applicant was better qualified or had more or more relevant experience or that she performed better at interview than the successful candidate. Both candidates had the qualifications required for the post and the Tribunal did not accept the applicant's contention that because she had a PhD she should be regarded as better qualified particularly bearing in mind that it was on the content of her PhD that she was regarded as having the qualifications for the post.
20. With regard to experience the Tribunal accepted that both the successful candidate and the applicant had the necessary experience for the post although their experience was different. Either candidate could have done the job as shown by the applicant being listed as the reserve candidate.
21. The differences between the applicant's and the successful candidate's experience as found by the interviewing panel were set out by Ms Cavanagh in a summary sheet which she prepared in relation to the two final candidates. She noted that the interviewing panel found the successful candidate had demonstrated greater range and depth of experience in relation to control of resources (including staff, premises and equipment) while the applicant's experience in this area was found to be more limited than that of the successful candidate. In relation to experience of "preparing annual budgets and controlling same" the interview panel found that the successful candidate had demonstrated slightly more experience. In relation to special aptitudes Ms Cavanagh noted that the panel considered that the successful candidate "possessed more relevant experience and qualifications in the category of skills necessary to ensure the effective management of human, financial and other resources" than the applicant. On all other aspects of the personnel specification Ms Cavanagh noted that the interview panel had found both candidates' experience and skills to be relevant to the post. The Tribunal found the interviewing panels explanation for these findings convincing.
22. The Tribunal found the paperwork including the short listing matrixes, the interview assessment sheets and Ms Cavanagh's summary sheet in relation to the two candidates to have been for the most part meticulously completed. The Tribunal accepted that Mr Logue and Mr Sidebottom stood back from this appointment in so far as they could do so but still had to carry the ultimate responsibility for the process. The tribunal accepted that it would have been better if the professional assessor had not been a previous employee of the respondent but noted that the Local Government Staff Commission had accepted him as an assessor. The Tribunal also accepted that Ms Cavanagh had notified the Staff Commission by telephone of the short-listing and interview dates and that the Staff Commission had chosen not to be present.
23. With regard to the acceptance by the respondent of additional material from the successful candidate with her application form the Tribunal noted that the applicant herself provided additional material with her own form and at the interview. She cannot therefore claim to have been disadvantaged on that ground.
24. The Tribunal did not accept the applicant's contention that the successful candidate should have been excluded once it was established after the interview that her degree was in Economics and Economic History rather than Economic and Social History and Economics. The requirement was for a degree in History or a related discipline and the Tribunal was satisfied that the respondent was correct in treating her degree as satisfying that criteria. The Tribunal also did not accept that the respondent had acted in any way improperly when the successful candidate was afforded the opportunity to bring her subscription to the Museums Association up-to-date prior to taking up the post. The Tribunal noted that her subscription was current when she applied for the post and that it was brought up-to-date by the time she took up the position.
25. In so far as the applicant tried to suggest that she was not in possession of the relevant statistics at the time of her interview the Tribunal did not believe her. The Tribunal was satisfied that at the time of the interviews the applicant was already in possession of that information arising from correspondence either between herself or the Equality Commission on her behalf and the respondent.
26. The Tribunal having carefully considered the respondent's witnesses explanations as to why the successful candidate was selected in preference to the applicant was satisfied that the explanations given by the respondent's witnesses for offering the post to the successful candidate and not to the applicant were satisfactory and convincing. The Tribunal was therefore satisfied that there were no inferences to be drawn from which it should conclude that the respondent had unlawfully discriminated against the applicant by way of victimisation in failing to appoint her to the post of Curator. Those parts of case reference numbers 00305/00FET and 01012/00 and 01172/00 which refer to victimisation are therefore dismissed.
27. The respondent requested that the applicant be ordered to pay costs up to the maximum permitted of £10,000 in respect of these applications which were in the respondent's view misconceived.
28. The applicant opposed this request.
29. It was clear to the Tribunal that once the applicant was aware that a female English person had been appointed to the post she could not have had a reasonable belief that she was discriminated against on the grounds of sex or race. The applicant was also slow to recognise the difficulties which she was going to have in establishing any meaningful comparison between the treatment of herself as a Protestant and the successful candidate who was perceived as an "Other" and to that extent her persistence in pursuing her complaints of unlawful discrimination on grounds of sex, race and religious belief could be regarded as misconceived. However, the respondent by the interviewers' denial of knowledge or suspicion of the applicant having lodged previous complaints on these grounds ensured that the Tribunal took the view that there was a case to answer on the victimisation complaints and as the victimisation complaint also required a consideration of whether the applicant had been less favourably treated the Tribunal does not accept that the victimisation aspect of the applicant's complaints was misconceived. In the circumstances the Tribunal does not accept that the applicant should be ordered to pay the respondent's costs.

Chairman:

Date and place of hearing: 11, 12, 13, 14, 15, 19 and 20 October 2004, Belfast.

Date decision recorded in register and issued to parties: