Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 287/03FET

CLAIMANT: Chris Symington

RESPONDENTS: 1. Graham Crozier

2. Gosford Housing Association (Armagh) Limited

DECISION

The unanimous decision of the Tribunal is that the claimant was discriminated against contrary to the provisions of Article 38 of the Fair Employment and Treatment (Northern Ireland) Order 1998 ("the Order") and accordingly is entitled to compensation of £4,000.00.

Appearances:

The claimant was unrepresented.

The respondents were represented by Mr P Ferrity Barrister-at-Law instructed by Blair & Hanna Solicitors.

1. The claimant complained that the respondents had discriminated against him on grounds of his religious beliefs or political opinion, in that following the advertisement for a position as housing manager in the respondent housing association, to which advertisement the complaint had applied, the respondents had appointed a person to the different post of development and maintenance manager which post had been enlarged to include elements of the housing managers post. Consequently the association had not appointed a housing manager in accordance with their advertisement but had appointed a development and maintenance manager with increased responsibilities to incorporate the responsibility of the housing manager.
2. The tribunal found the following facts proved on a balance of probabilities:-

(a) The respondents, an Armagh based Housing Association, with a board of management comprising only members of the Protestant community advertised in the Belfast Telegraph of 6 September 2002 for two posts. One was housing manager at a salary of £21,702.00 - £25,473.00 per annum and the second position was that of development and maintenance manager at a salary of £17,823.00 - £21,078.00 per annum.

(b) The junior post of development and maintenance manager attracted a number of applicants although only one applicant was short listed as suitable for employment. He was a Mr Hermin, a Protestant, and in the light of there only being one suitable applicant for the post the board of the respondents decided to interview him before their board meeting scheduled for 3 October 2002. The interview took place on that day and it was felt by the interviewing panel that Mr Hermin was suitable for the position of maintenance and development manager. At the same meeting but after Mr Hermin had left, the committee decided that the respondents could not really afford two senior positions to replace the previous manager Ms Ervine. This was partly because of two potential land purchases being made by the respondents which could cause cash flow problems in the latter part of that year and early in the following year. Also to replace Ms Ervine with two people would be a cost of almost £50,000.00 per annum. The committee decided that in view of Mr Hermin's ability, experience and performance at the interview he should be offered a different job namely the maintenance and development post, together with responsibility of the overall management of the association, at an enhanced salary of £21,000.00 per annum. By offering Mr Hermin this post, supported by another member of staff already in place, the association would save approximately £20,000.00 per annum. At that meeting it was further agreed that no further appointments would be necessary for the time being.

(c) After this meeting of 3 October 2002 the respondents wrote to the eight short listed applicants for the housing manager post, telling them that as the anticipated vacancy had not arisen the applications for the proposed housing manager post would be held over for approximately six months until the respondents had reviewed their staffing arrangements.

(d) On 9 May 2003 the claimant, a Roman Catholic, telephoned to the respondent housing association and spoke to the receptionist. He asked to speak to the housing manager but was told by the receptionist that 'he was on leave'. The claimant then asked about Ms Ervine and was informed by the receptionist that Ms Ervine had left in August of the previous year to go to the Northern Ireland Housing Executive in Lisburn. Shortly afterward the receptionist explained to the claimant that Mr Hermin was the development and maintenance manager. Consequently the claimant wrote to the Chairman of the respondent housing association, Mr Graham Crozier, suggesting to Mr Crozier that the duties of housing manager were being carried out by Mr Hermin. The claimant reminded Mr Crozier about the letter of 8 October which stated that the vacancy had not yet arisen and asking for an explanation as to what the situation was as he, the claimant, felt that he had been treated unfairly with regard to the recruiting process.

(e) No answer was received to that letter and a further letter was sent by the claimant to Mr Crozier on 3 June which elicited a reply dated 9 'April' 2003 which is clearly meant to be 9 June 2003. In that letter Mr Crozier explained to the claimant that the staffing needs were still ongoing and in the meantime Mr Hermin had been appointed development and maintenance manager. He was not fulfilling the role of housing manager. Mr Crozier then suggested a meeting with the claimant to discuss the claimant's claims.

(f) No such meeting occurred and the claimant brought these proceedings before the tribunal.

(g) The claimant is a Roman Catholic and the successful applicant for the new post is a Protestant.

3. Burden of Proof

Under Article 38(a) of the Order, where a tribunal finds, that in the absence of an adequate explanation, facts from which the tribunal could find that the respondents have committed an act of unlawful discrimination against the claimant, the tribunal shall uphold that complaint unless the respondents prove that they did not commit or as the case may be are not to be treated as having committed that act of discrimination.

4. (a) The tribunal find as a fact that the respondents by their actions in October 2002 of appointing Mr Hermin, an applicant for the job of development and maintenance manager, to a job which included many of the tasks in the job description of the housing manager, had discriminated against the applicants for the housing manager's job who had not been given the opportunity to be interviewed for the post which they aspired to.

(b) This was in breach of the "Code of Practice Fair Employment in Northern Ireland", Chapter 5, which sets out the Good Practice for employers. For instance clause 5.3.5 states that an employer should avoid, "use of applications for one job for the purpose of filling a different job". Also clause 5.3.6 states that an employer should, "make certain that all candidates are given the same chance to demonstrate their abilities or potential abilities and that differential standards are not applied".

(c) In this case the post of housing manager was properly advertised but the respondents claim that for the reasons of finance and speed of appointment of a new manager the interview procedure was not followed. The applicant for the lesser job of development and maintenance manager was given the bulk of the responsibilities of the housing manager. In order for this to be even partially fair the respondents should have allowed all the applicants for the housing manager's job to be interviewed for the new joint job of development and maintenance manager and housing manager. Even that would not be entirely satisfactory as potential applicants for either job could have been put off by the fact that the two posts were advertised separately, not knowing that the two posts would be subsequently amalgamated. It would however have prevented the claimant bringing his claim if he had had an opportunity to be interviewed for the job which was taken by Mr Hermin.

5. The tribunal having found that the respondents did potentially commit an act of unlawful discrimination in the way that they filled the development and maintenance manager's post linked with the housing manager's post, turned its attention to the explanation for this given by the respondents.

(a) The respondents explained that because of financial constraints linked with the possible purchase of additional properties in Armagh in the next few months, the respondents could not pay the two salaries of the two posts.

(b) Furthermore, the fact that Mr Hermin was ready to take the post immediately and thus avoid the further interviewing for the housing manager's post later in the month meant that the post vacated by Ms Ervine could be filled very quickly to the benefit of the association.

The respondents stressed that it was for these reasons that they took this unusual course of appointing Mr Hermin, to the joint post created.

6. The tribunal noted these arguments but hold that the departure from the recommended procedure for filling posts of this kind was serious and did give real cause for concern that discrimination had taken place, despite the reasons given by the respondents and the assertion that no deliberate act of discrimination had been intended.
7. The tribunal having decided that the burden of proof had shifted onto the respondent then had to consider whether the respondent has proved that its actions were not discriminatory. The tribunal accepted that the respondents had not intended to discriminate against the claimant but the effect of their decision with regards the two posts had the effect of so discriminating against the claimant. Likewise any other applicant for the post of housing manager had also suffered detriment in the same way as the claimant. However, the claimant had brought his proceedings and as the tribunal hold that the respondents had not discharged the burden of proof placed upon them by Article 38(a) the claimant is entitled to compensation.
8. The respondents also raised the point that the claim of the claimant had been brought before the tribunal outside the time limit as laid down by the Order. The respondents argued that the claimant had been informed in October 2002 that a decision would be made by the respondents, as to the possibility of making an appointment, within six months of that date, which would have meant during the month of April 2002. The claimant's claim to the tribunal was date stamped by the tribunal on 10 July 2003. The tribunal, however, hold that the date when the claimant first became aware of the fact that he was not going to have an interview for the job came on 9 May 2003 and that he could not be expected to have approached the respondents prior to that date. The respondents had stated in their letter to the claimant of 8 October 2002 that they would be reviewing their staffing in approximately six months and they would hold all applications until this review took place. However, the word "approximately" was used and the tribunal hold that it was not unreasonable for the claimant to wait until early May to telephone to the respondents. The tribunal therefore hold that the claim of the claimant was made within the time limit.
9. The respondents applied for the removal of the name of Mr Graham Crozier as a respondent in this case. Mr Graham Crozier is the Chairman of the Gosford Housing Association (Armagh) Limited and is not personally responsible for this matter, being a volunteer chairman of the association. It was agreed by the parties that the action should be brought only against Gosford Housing Association (Armagh) Limited and that Mr Crozier's name should be removed from the title to the proceedings.
10. In the light of the decision of the tribunal that the claimant was discriminated against on the basis of his religion and/or political affiliations the tribunal award a sum of £4,000.00 compensation to the claimant for injury to feelings. It should be noted that the claimant had explained to the tribunal that he was not seeking any other compensation as he still has his job with another housing association. The claimant who lives in Coalisland had hoped that by being appointed to the position that he applied for with the respondents would have avoided having to drive to Belfast each day to his present job. The journey to Armagh each day would have been a lot shorter both in time and distance.
11. In considering the amount of compensation to award to the claimant the tribunal considered the principals laid down in Vento -v- West Yorkshire Police 2003 ICR 318 and in Gbaja-Biamila -v- DHL International (UK) Ltd 2000 ICR 730. There was no suggestion in this case that the respondent had been guilty of any conduct that would lead the tribunal to consider aggravated damages, this was a case of basic damages of injury to feelings. The tribunal heard that the claimant was very disappointed that this opportunity to relocate nearer to home was denied him. The saving in travel time to and from work would have been of great benefit to his well-being and would have avoided the daily stress of the traffic problems in Belfast.
12. The tribunal having considered the matter of interest on the award of compensation hold that no interest should be paid on this award. The reason being that the tribunal had calculated a fair award on current levels and as the respondent had failed to treat the claimant fairly by inadvertence rather than by deliberate action, the tribunal decided not to penalise the respondent with interest.

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

Chairman:

Date and place of hearing: 3 May 2005, Belfast.

Date decision recorded in register and issued to parties: