Fair Employment Tribunal Northern Ireland Decisions

FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 163/03 FET

1053/03

APPLICANT: John Thomas McGuinness

RESPONDENTS: 1. Social Security Agency

2. Commissioners of Inland Revenue

DECISION

The unanimous decision of the Tribunal is that the applicant was not unlawfully discriminated against on grounds of race or religious belief/political opinion.

Appearances:

The applicant was unrepresented.

The first respondent was represented by Mr T McGleenan, Barrister-at-Law, instructed by The Departmental Solicitor's Office.

The second respondent was represented by Mr S Ritchie, Barrister-at-Law, instructed by The Crown Solicitor's Office.

1. The issues in this case are:-

(a) Whether the Social Security Agency discriminated against the applicant on grounds of race or religion/politics by sending an e-mail to the applicant's line manager.

(b) Whether the Inland Revenue discriminated against the applicant on grounds of race or religion/politics by the format of an application form for Band D posts which required applicants to disclose whether they had a previous history of conduct/discipline matters.

2. At all material times the applicant was employed by the Child Benefit Office in the Northern Ireland Civil Service.
3. In or about 2000 the applicant was the subject of disciplinary action within the Child Benefit Office. Appeals were finally exhausted in 2002. The disciplinary penalty was a promotion bar for two years, demotion from his current post of Executive Officer II to Administrative Officer grade, and he was given a severe reprimand which was valid for five years, and noted on his personal file
4. By virtue of legislation the Child Benefit Office was transferred to the Inland Revenue in the Home Civil Service on 1 April 2003.
5. Prior to the transfer of the Child Benefit Office, negotiations took place between NIPSA and representatives from the Inland Revenue about employees terms and conditions. Representatives from the Child Benefit Office also attended in a consultation role to explain current terms and conditions within the Child Benefit Office and the Northern Ireland Civil Service.
6. It was agreed by all parties to the negotiations that employees who transferred to the Inland Revenue would suffer no detriment and would generally benefit from taking on the Inland Revenue arrangements.
7. In or about 2003 the Inland Revenue issued a generic trawl for Band D posts. Staff who were about to transfer from the Child Benefit Office to the Inland Revenue were eligible to apply.
8. The applicant obtained an application form for the post. He took exception to the contents of the form. In particular he objected to the requirement that applicants indicate on the face of the form whether there is 'a conduct and discipline matter which has resulted in a formal disciplinary sanction being imposed'. The form also indicated that if the answer to the question was 'yes', then written details should be submitted separately of the problem.
9. The applicant sought advice from his line manager who in turn contacted Mr Stuart, who was a member of the team from the Social Security Agency who took part in the negotiations regarding terms and conditions of employees transferring to the Inland Revenue. Mr Stuart sent an e-mail confirming that an individual with a disciplinary sanction which had lapsed but which would remain on his personal record for a further three years must indicate that fact on the application form.
10. The Tribunal accepts that Mr Stuart's role was merely to act as a 'conduit' for information required by employees who were about to transfer to the Inland Revenue. The Tribunal also accepts that Mr Stuart was merely providing information to the applicant which he confirmed by providing a copy of an extract from the Inland Revenue Internal Recruitment Intranet Site (Questions and Answers). The Tribunal does not accept that Mr Stuart was 'instructing' the Inland Revenue to impose the requirement on the applicant.
11. The applicant did not apply for the post. He considered that the requirement to disclose his previous disciplinary record discriminated against him as an Irish Nationalist.
12. In addition, he complained that if he had remained in the Northern Ireland Civil Service he would not have had to disclose his disciplinary record on the face of the application form, because the format of application forms in the Northern Ireland Civil Service is different from the format used by the Inland Revenue.
13. The Tribunal is satisfied that the Inland Revenue requirement that applicants disclose the fact of previous disciplinary matters on the face of an application form was a requirement which was applied to all applicants regardless of race, religion, politics, sex or disability.
14. There is no evidence whatsoever that the applicant's nationality or his political views had any influence on the format of the Inland Revenue application form.
15. The Law

Article 3(2) of the Fair Employment and Treatment (Northern Ireland) Order 1998 states –

"(2) A person discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of this Order if –

(a) on either of those grounds he treats that other less favourably than he treats or would treat other persons; or

(b) …."

[Emphasis added]

The Race Relations (Northern Ireland) Order 1997 is expressed in similar terms.

16. The applicant's real complaint is that the transfer of staff from the Child Benefit Office to the Home Civil Service resulted in a detriment because the format of application forms in the Inland Revenue was different and required him to disclose the fact of his disciplinary record which he otherwise would not have had to do.
17. The Tribunal recognises that the applicant's sense of grievance is genuine. However the Tribunal must be satisfied that the applicant was treated less favourably than someone else in the same or similar circumstances would have been treated, and that the ground of the less favourable treatment was the applicant's race or politics. Since we have already found as a fact that the requirement to disclose the fact of previous disciplinary matters was a requirement which was applied to all applicants regardless of their political views or, nationality, the applicant's claim must fail.
18. Mr Ritchie, on behalf of the second respondent, made an application for costs. The Tribunal is not satisfied that an Order for Costs is appropriate in this case. It is clear to us that the applicant genuinely, but mistakenly, believed that he could succeed in a claim for race or political discrimination. We consider that the respondent could have pointed out to the applicant why his claim was bound to fail, and that an application for costs may be made if he continued to pursue his claim. The Tribunal is not suggesting that a costs warning should always be given, and indeed in many cases it would be inappropriate to do so. We consider however that it would have been appropriate in this case. We therefore decline to make an award of costs.

Chairman:

Date and place of hearing: 20 January 2005, Belfast

Date decision recorded in register and issued to parties: