Fair Employment Tribunal Northern Ireland Decisions

 
THE FAIR EMPLOYMENT TRIBUNAL

CASE REF: 104/01FET

In the matter of a Requisition to the Fair Employment Tribunal to state a case on four questions of law arising from the decision of the Tribunal on a question between –

Patrick McParland and Belfast City Council

The Tribunal unanimously refuses to state a case for the opinion of the Court of Appeal for the reasons given below unless and until ordered to do so by a Court.

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J E MAGUIRE

President

Date:

1. By a unanimous decision issued on 17 June 2003, this Tribunal –

(a) found that the respondent unlawfully discriminated against the applicant by way of victimisation in the arrangements made by the respondent for the purposes of determining who should be offered the post of Buildings Officer (Mechanical Services) in November 2000; and

(b) adjourned the proceedings to a date to be fixed for determination of remedy.

A copy of that decision is attached and marked "A".

2. By a decision issued on 4 February 2005 this Tribunal –

(a) by a unanimous decision awarded the applicant the sum of £6,000 for injury to feelings to which was added the sum of £1,760 interest under the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (NI) 1996; and

(b) by a majority decision, this Tribunal made no award to the applicant in respect of financial loss because the majority did not accept that the applicant had demonstrated that he was entitled to be compensated for such a loss. The member in the minority believed that the applicant should be compensated for loss but could not determine the measure of that loss.

A copy of that decision is attached and marked "B".

3. The applicant has requisitioned the Tribunal to state and sign a case in relation to the decision of the Tribunal on the issue of loss and a copy of that requisition is attached to this decision and marked "C".
4. Having considered the alleged questions of law posed in that Requisition, this Tribunal unanimously refuses to state a case for the opinion of the Court of Appeal unless and until ordered to do so as they do not believe the requisition contains questions of law. The Tribunal sets out its reasons below in relation to each question.
5. Question 1

"Whether the Tribunal erred in law in failing to compensate the applicant for the loss of opportunity which they had assessed as a one in three chance of appointment?"

The Tribunal accepts that in paragraph 4 of the decision of 4 February 2005 they stated –

"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 Tribunal's reference to a one in three chance of appointment referred to the fact that two other candidates were shortlisted. In so far as the applicant now seeks to interpret that statement as a conclusion by the Tribunal that the applicant had a one in three chance of appointment, the Tribunal's statement must be read in the context of paragraph 4. In particular the Tribunal recorded -

(a) that it did not find that the applicant was better qualified or more experienced than the two candidates interviewed; and

(b) no member of the tribunal was able to reach any conclusion as to how the applicant would have performed at interview as against the two candidates who were interviewed.

Furthermore the Tribunal, in this context, examined whether it could make an award by way of damages for loss of a chance. The majority concluded that they could not say that there was a substantial chance. The member in the minority concluded that there must have been a chance for which the applicant should be compensated but was unable to measure that chance. Indeed this was the point of difference in the decision between the majority and the minority. However expressed in paragraph 4, no member of the tribunal assessed the applicant as having a one in three chance (likelihood) of appointment. Indeed no member could assess the loss of chance.

6. Question 2

"Whether the Tribunal had erred in law in finding that 'the onus is upon the applicant to demonstrate that he is entitled to be compensated for his loss when they found that he had a one in three chance of appointment?"

The basis of the question lies in the assertion that the Tribunal did actually find that the applicant had a one in three chance of appointment. The Tribunal, in answer to Question 1 above, has explained that statement and does not accept that the Tribunal, majority or minority, could put any measure on the chances of the applicant being successful if interviewed.

7. Question 3

"Whether the Tribunal erred in law in finding that the applicant had not demonstrated that he is entitled to be compensated for loss, to their satisfaction, having regard to the evidence before them?"

There is no question of law here. The appellant seeks to review the evidence.

8. Question 4

"Whether any reasonable tribunal on the evidence adduced and the facts found, properly directing itself in law, could have reached the decision arrived at by this Tribunal not to compensate the applicant?"

The Tribunal did compensate the applicant for injury to feelings. It could not compensate the applicant for a loss which he did not demonstrate nor for the loss of a chance which was neither substantial nor measurable. The applicant does not identify any alleged misdirection in law. The facts upon which the Tribunal relied in coming to their decision were –

(1) the Tribunal had originally 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). He was not shortlisted for interview.

(2) But for this discrimination, the applicant would have been shortlisted.

(3) Two other candidates were shortlisted and one was appointed to the post.

(4) At interview the candidates were assessed in relation to –

(a) education and qualifications;

(b) general intelligence and special aptitudes;

(c) experience; and

(d) personality and motivation;

(5) The applicant did not dispute that the two candidates interviewed satisfied the qualifications criteria.

(6) The Tribunal did not accept that the applicant was better qualified than either of the two candidates interviewed. The respective qualifications are set out in paragraph 2 of the decision of 17 June 2003.

(7) Applicants were required to have at October 2000 at least 5 years recent relevant experience within the building industry and preferably experience in a property maintenance environment and experience in preparing orders and specifications.

(8) The applicant had not been in employment for 2/3 years and from 1994 had 2/3 years' relevant experience.

(9) The two candidates interviewed had more recent relevant experience. Details of the three candidates' experience are attached and marked 'McP', 'DN' and 'JT'.

(10) The Tribunal could not measure the applicant's general intelligence against that of the other candidates who were interviewed.

(11) The candidates were assessed under special aptitudes by which their ability to communicate effectively, work independently, show proven organisation ability and commitment in customer case was assessed. The Tribunal were unable to undertake such a comparative exercise.

(12) The Tribunal was unable to compare the personality and motivation of the applicant with the two candidates interviewed.

9. The Tribunal, not being satisfied that the applicant would have been appointed had it not been for the discrimination, attempted to evaluate the loss of his chance to compete at interview. The majority could not accept that the applicant had any substantial chance of appointment. The member in the minority believed that he did have a chance of appointment but was unable to put any measure on that chance.
10. Having considered Question 4 in light of the factors set out above and in the absence of the precise evidence and facts and precise misdirection in law relied upon by the applicant, the Tribunal unanimously declines to state a case on these questions unless and until directed to do so.

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J E MAGUIRE

President