Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 368/03 FET

CLAIMANT: Raymond Matthew Patty

RESPONDENT: Northern Ireland Housing Executive

DECISION

The unanimous decision of the Tribunal is that the claimant was not discriminated against by the respondent on the ground of his religious belief.

Appearances:

The claimant was represented by Mr J McCaffrey, of NIPSA.

The respondent was represented by Mr D Dunlop, Barrister-at-Law, instructed by The Legal Department, Northern Ireland Housing Executive.

1.	(i)	The claimant, Mr Patty, by an application to the Tribunal presented on 26 September 2003, alleged that he had been discriminated against by the respondent on the ground of his religious belief in the appointment process for the position of Building Surveyor. Mr Patty is a Protestant, and his comparator, Mr James Walsh, is a Catholic.
	(ii)	He makes allegations of less favourable treatment both in relation to the short-listing process, to the way in which the respondent requested and dealt with clarification of the successful candidate's qualifications, and the arrangements for the interview and the marks awarded at it. He also alleges discrimination in relation to the respondent's appeal process, and to subsequent changes in the structure of the Department where he was employed subsequent to his successful appeal. Some of these allegations arose after the presentation of his application to the Tribunal, and he relies on these later matters as evidence tending to prove those claims which are in time.
	(iii)	The respondent denies that any such discrimination, as alleged, took place.
2.	(i)	In order to determine this matter the Tribunal heard evidence from the claimant. It heard evidence from the following on behalf of the respondent:-

Mr Tim English (Design Service Manager, South East Area, Newtownards);

Mr Tim Gough (who holds the corresponding post in the North East Area, at Ballymena);

Mr Harry Dornan (Design Services Manager, South Area, Craigavon);

Mr Frank McGuigan (Personnel Manager, with responsibility for Design and Property Services Division)' and

Mrs Claire McIlhatton (Recruitment Manager).

		The Tribunal also had regard to documentary evidence submitted by the parties.
	(ii)	It finds the facts set out in the following paragraphs proved to its satisfaction.
3.	(i)	The claimant, Mr Patty, was employed by the Northern Ireland Housing Executive. In response to the internal trawl of 29 April 2003 he applied for the post of Building Surveyor TL7 in the South East Area, Design and Property Services Division.
	(ii)	The criteria for this post were as follows:-

RICS (Building Surveyor); or

Chartered Builder MICOB (Member of the Chartered Institute of Building) with a minimum of 5 years relevant post qualification experience; or

BTEC High Certificate/Diploma with more than 15 years relevant post qualification experience.

		Additionally, it was stated that preference would be given to candidates who were experienced and proficient in the use of CAD (Computer Aided Design) and IT systems generally.
4.	(i)	Short-listing for the post took place on 27 May 2003. The members of the short-listing panel were Mr English (who is Protestant), Mr Gough (also a Protestant) and Mr McGuigan (who is Roman Catholic). Mr Gough, who came from a different area, did not know the religion of the claimant or his comparator.
	(ii)	There were 12 applicants in total for the post. Four were not short-listed, and seven (including the claimant) were. On looking at the application form of Mr Walsh, who was the successful candidate after interview, the short-listing panel were uncertain if the subjects he had specified under his BTEC Higher Qualification merited the award of the overall certificate They decided to refer the matter to Mrs McIlhatton in the Recruitment Unit so it could be clarified.
	(iii)	On 4 June 2003, Mrs McIlhatton wrote to Mr Walsh, asking him to confirm that he had gained the full BTEC Higher Qualification. He replied by e-mail of 6 June 2003 confirming that he had 'completed the Higher 'Tec Building in 1982/1983'.
	(iv)	Mrs McIlhatton believed that this statement confirmed that Mr Walsh had the required qualification, and after discussing the matter with Mr McGuigan, Mr Walsh was short-listed for interview.
5.	(i)	The claimant contends that in short-listing Mr Walsh, the respondent acted in breach of its own procedures. Paragraph 7.3 of its Policy on Appointments and Promotions of 1 April 2003 states that "[o]nly applications containing all the information sought will be considered". The claimant alleges that Mr Walsh did not fulfil his responsibility to provide all the required information, that he should therefore have been short-listed out, and that the failure to short-list him out is indicative of discrimination on the part of the respondent.
	(ii)	We do not accept this. What the respondent did here was to seek clarification of information which had been provided. In doing this they acted reasonably, and in effect they had no option but to do as they did. Had they not sought clarification and let a candidate through wrongly, other candidates would complain. Equally, if they wrongly reject a candidate, without seeking clarification, that could have led to an appeal by that candidate.
	(iii)	Even if we are wrong in this, and Paragraph 7.3 does lead itself to the strict interpretation advanced by the claimant (an interpretation which would not advance industrial relations), so that the respondent acted in breach of its own procedures, we cannot in the circumstances of this case draw any inference of discrimination from the fact. Two of the three members of the short-listing panel were the claimant's co-religionists, and while it is not inconceivable that there may be circumstances where someone will discriminate against a co-religionist, there is no evidence of that taking place here.
	(iv)	In any event, the claimant was short-listed. He points out that two other Protestant candidates were not short-listed. However, we accept the evidence of Mr McGuigan that this was because they did not meet the experience criterion. Although one of these unsuccessful candidates did initially appeal the failure to short-list him he did not pursue it.
	(v)	The claimant also alleges that he received less favourable treatment at the short-listing stage on account of Mrs McIlhatton's acceptance of Mr Walsh's statement that he had 'completed' the BTEC qualification, to which we have referred above. We reject this. We are satisfied that at the relevant time, Mrs McIlhatton honestly believed Mr Walsh possessed the qualification. Her belief was no less honest for being, as it subsequently transpired, mistaken. She accepted that with hindsight his answer to her query could be seen as equivocal. We think that many others, in Mrs McIlhatton's position and having regard to her then state of knowledge, would have acted as she did. There is nothing to indicate that she would have acted any differently had Mr Walsh been a Protestant.
	(vi)	We reject any suggestion that Mr Walsh did not have the requisite experience to satisfy the criterion. This was not raised by the claimant's representative in cross-examination, but only in submissions.
	(vii)	More generally, if the short-listers had a bias or favour of Mr Walsh, as alleged by the claimant, it is hard to see how they could have thought they were advancing his interests by raising a query about his qualification.
6.	(i)	The interviews for the post were scheduled to take place on 23 June 2003. The interviewing panel was to be the same as the short-listing panel. Mr English was taken seriously ill and was replaced by Mr Dornan on the panel. Mr Dornan was a Protestant. At the time of the interview, he mistakenly believed Mr Walsh was also a Protestant.
	(ii)	Interviews of all short-listed candidates, except Mr Walsh, took place on that date. The date did not suit Mr Walsh because he was on holidays. He was interviewed separately on his return from holidays on 9 June 2003. The claimant takes issue with this. It is, he says, further evidence of a desire to favour Mr Walsh by giving him the added advantage of more time to prepare. According to him, all the interviews should have been re-arranged to take place at the later date.
	(iii)	We reject this. We accept the evidence of Mr McGuigan that it was normal practice for interview panels to reconvene in such circumstances. Indeed it seems to us that it would create greater logistical difficulties for any organisation to proceed in this respect in the way the claimant advocates, particularly, as was the case here, when the summer holiday period was approaching.
	(iv)	The claimant, in his direct evidence, alleged that the marking was in some respects inconsistent. Mr Walsh scored 231 points, the claimant being first reserve with 197. Mr Walsh's high score, according to the claimant, suggest the 'high probability' that the former may have had prior knowledge of the interview questions. There is no evidence to support this. Any alleged discrepancy or inconsistency in scoring was not put to the interviewers in cross-examination. We accept their evidence that they marked fairly and honestly, and gave the marks they considered appropriate to each candidate. They marked each candidate independently, and the total scores were added up following Mr Walsh's interview on 9 June 2003.
	(v)	In relation to the interview, the claimant also alleges that a delay to the start of his interview and a change in the room where the interview was to take place were deliberately designed to put him off and to put him at a disadvantage, whereas Mr Walsh suffered no such disadvantage. We reject this as fanciful. The reason for the change of room and consequent delay was because of Mr English's illness. The interview was to take place in his office. It was not prepared for, and therefore not suitable for, interview, because he was not there to make the necessary arrangements. Consequently, on the morning of the interview, it was necessary to prepare another room.
	(vi)	As far as the interview was concerned, we again note that a majority of the panellists were the claimant's co-religionists, and would reiterate what we have said about this at Paragraph 5(iii) above.
7.	(i)	Following the interview, Mr Walsh received a letter on 10 July 2003 informing him that he was the successful candidate. This appointment took effect from 1 August 2003.
	(ii)	The claimant appealed against the appointment panel's decision. There is a dispute between the claimant and the respondent as to whether his appeal was lodged in time. It is not necessary for us to resolve this. Although Mrs McIlhatton believed it to be out of time, she accepted it. In her view it was only a few days late, the claimant had been off work with injuries sustained in a road traffic accident, and she had no wish to inhibit him in exercising his rights. We accept her evidence without hesitation when she says that in considering this matter the claimant's religion played no part. We consider she treated him very fairly.
	(iii)	She had a meeting with the claimant on 16 September 2003, at which she identified the crux of his complaint as relating to Mr Walsh's qualifications.
	(iv)	She then set in motion enquiries of Mr Walsh, of Lisburn Institute, where he had studied, and of the relevant Examinations Board. These enquiries culminated in an admission by Mr Walsh that he did not possess the requisite qualification. He was disqualified from holding the post to which he was appointed on 3 December 2003, and reverted to his original grade with effect from 1 December 2003. He was not disciplined in any way – it was felt the humiliation he suffered was punishment enough. A reasonable employer might take this view, but he was treated indulgently in not being required to pay back the additional salary he had wrongfully earned through his dishonesty. Insofar as the claimant relies on Mr Walsh's treatment as evidence of less favourable treatment, there is nothing to suggest that someone of another religion would have been treated differently.
	(v)	As far as Mrs McIlhatton's enquiries are concerned, it is not necessary for us to detail them because it was accepted they were thorough. The claimant contends, however, that enquiries of this nature should have been conducted in June as soon as the query about Mr Walsh's qualification arose. We accept Mrs McIlhatton's explanation for this. In June she had been asked to deal with a query about clarification of someone's qualifications. On the face of it there was no suggestion of any wrongdoing. In the latter part of the year she was dealing with a clear allegation of wrongdoing, which required a full investigation.
	(vi)	Nor do we accept the claimant's allegation that the investigation was delayed, nor that he was not kept informed of the outcome. Mrs McIlhatton was faced with the situation where she was depending on the responses and co-operation of outside bodies, and although she suspected the end result of the enquiries would turn out as it did, she held off, in effect, until she was absolutely sure. She was also conscious, in her capacity as a Personnel Manager, of the need to treat Mr Walsh, who was under suspicion, fairly. When disqualified, he was offered the right of appeal. Again the claimant takes issue with this, but it seems to us that the respondent had no alternative but to offer it. As far as the allegation of not being kept informed is concerned, Mrs McIlhatton told the claimant at the outset that the process of investigation was likely to be protracted. In any event, there was nothing to stop him contacting her to voice his concerns.
	(vii)	In relation to Mrs McIlhatton's enquiries and the manner in which they were carried out, we find no facts from which we can infer that the claimant suffered less favourable treatment on account of his religious belief.
8.	(i)	When Mr Walsh was disqualified from the post, the claimant, as first reserve, was appointed to it, with his salary backdated to 1 August 2003. Thus his appeal was allowed and his grievance redressed.
	(ii)	He complains that subsequent to his appointment, structural changes took place to his Department, including the transfer of staff. He initially alleged that this was done because he was a Protestant. These events postdate his application to the Tribunal of 26 September 2003, and can only be relevant as evidence of acts of discrimination occurring before that date. However, in cross-examination the claimant accepted that the re-structuring of the Department was not discriminatory, and we accept the evidence of Mr English that it was done for sound organisational and business reasons.
9.	(i)	A person discriminates against another person on the ground of religious belief in relation to employment if on that ground he treats that person less favourably than he treats or would treat other persons. [Fair Employment and Treatment (Northern Ireland) Order 1998, Articles 3 and 19, as amended.]
	(ii)	There is no facts from which the Tribunal can infer that the claimant was discriminated against on the ground of his religious belief. Consequently, we dismiss his claim.

1. We are further of the opinion that the claimant has, in bringing and conducting these proceedings, acted unreasonably. His claim has to a large extent consisted of the making of unsupported allegations of a serious nature against the respondent's witnesses. The Tribunal orders that he pays to the respondent the sum of £350.00 in respect of costs incurred by it.

Chairman:

Date and place of hearing: 20 – 22 June 2005 and 24 June 2005 at Belfast

Date decision recorded in register and issued to parties: