Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 137/05FET

CLAIMANT: Andrew Sides

RESPONDENTS: 1. Sperrins Tourism Ltd

2. John Donaghy

3. Peter McKenna

4. Sean Kerr

5. Nuala McReynolds

DECISION

The unanimous decision of the Tribunal is that none of the claims are well-founded. Accordingly, all of those claims are dismissed.

Constitution of Tribunal:

Chairman: Mr P Buggy

Panel Members: Mrs G Savage

Mr B McCreight

Appearances:

The claimant was represented by Ms R Best, Barrister-at-Law, instructed by Copeland McCaffrey, Solicitors.

The respondents were represented by Mr G Grainger, Barrister-at-Law, instructed by Rosemary Connolly, Solicitors.

REASONS

1. The first named respondent, Sperrins Tourism Limited ("Sperrins") was set up for the purposes of prompting tourism throughout large parts of counties Londonderry (Derry) and Tyrone. Sperrins has been constituted as a private company limited by guarantee. However, it is mainly financed by public money.
2. Within the company, ultimate authority rests with the directors. There are a considerable number of directors. Many of them are public representatives, at local government level. Some of them are local business-people, who mainly work in the local tourism sector.
3. At officer level, the most senior post in Sperrins is that of Manager. In January 2005, there was a vacancy for a Manager. The claimant was a candidate for that vacancy. So was a Mr Max Bryant ("Mr Bryant"). A selection committee decided that Mr Bryant was the best candidate, and offered him the post. He accepted the post. The committee decided that the claimant was the second best candidate. They decided that he should be treated as a reserve appointee. However, he was never offered an appointment (because Mr Bryant accepted the post).

Some key statutory provisions

4. Statutory provisions in respect of religious discrimination and political discrimination, in the field of employment, are set out in the Fair Employment and Treatment (Northern Ireland) Order 1998 ("the Order"), which was extensively amended in 2003.
5. Article 19 of the Order provides that it is unlawful for an employer to discriminate against a person, in relation to employment in Northern Ireland:

"(a) where that person is seeking employment -

(i) in the arrangements the employer makes for the purpose of

determining who should be offered employment, or

(ii) in the terms on which he offers him employment, or

(iii) by refusing or deliberately omitting to offer that person

employment for which he applies …"

6. For the purposes of Article 19, "discrimination" includes direct discrimination on the ground of religious belief or political opinion. (See Article 3(1) of the 1998 Order). Article 2(1) of the Order provides that for the purposes of that Order, an "act" includes a deliberate omission. Article 3(2A) of the Order defines direct religious discrimination and direct political discrimination, within the context of Article 19, in the following terms:

"(2A) A person … discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of any [relevant employment discrimination provision in the Order] if -

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

7. Article 2(3) provides as follows:

"(3) In this Order references to a person's religious belief or political

opinion includes references to -

(a) his supposed religious belief or political opinion; and

(b) the absence or supposed absence of any, or any particular,

religious belief or political opinion."

8. Significantly, Article 3(3) provides as follows:

"(3) A comparison of the cases of persons of different religious belief or political opinion under paragraph (2) or (2A) [of Article 3 of the Order] must be such that the relevant circumstances in the one case are the same, or not materially different, in the other".

The claims and the defences

9. In these proceedings, the claimant complains of three matters:

(1) He asserts that Mr Bryant's application ought to have been treated as being

ineligible.

(2) He says that the weighting of some of the relevant comparative selection criteria were inappropriate, and were designed to favour Mr Bryant.

(3) He asserts that, in the comparative assessment of Mr Bryant's application, alongside the other applications, Mr Bryant's application was unfairly over-graded in respect of some of the criteria.

10. The claimant asserts that he has been subjected to the three unfair acts mentioned above because, at the material time:

(1) he was a Protestant and/or

(2) he was not a Catholic and/or

(3) he was not a supporter of Irish nationalism.

11. In answer to a query from the Tribunal, Ms Best, on behalf of the claimant, made it clear that only an actual comparator (Mr Bryant) was being put forward in these proceedings and that the claimant is not asserting that there has been less favourable treatment by reference to some hypothetical comparator. The respondents' defence to these proceedings has been put forward on the basis that Mr Bryant is the only statutory comparator.
12. In the context of these proceedings, the material time is the time when the decisions were made in relation to the setting of comparative criteria, in relation to eligibility, and in relation to the choice of the successful candidate.
13. It was accepted, on behalf of the claimant that, at the material time, Mr Bryant was a Protestant, was not a Roman Catholic ("a Catholic") and was not a supporter of Irish nationalism.
14. The relevant decisions in this instance were made on behalf of Sperrins by the four Sperrins directors who constituted the selection committee. The membership of that committee consisted of four individuals who are named as respondents to

these proceedings (Mr John Donaghy, Mr Peter McKenna, Councillor Sean Kerr and Mrs Nuala McReynolds).

15. Sperrins accepts that, if the Tribunal were to conclude that any of the individual respondents had carried out any relevant act of unlawful discrimination, Sperrins is to be treated (for the purposes of the Order) as having committed that act of discrimination against the claimant. Against that background, the claimant asserts that the respondents, and each of them, have unlawfully (directly) discriminated against him on the ground of religious belief and/or on the ground of political opinion (contrary to the Order):

(1) in the arrangements which were made for the purposes of determining who should be offered the relevant post and/or

(2) by refusing or deliberately omitting to offer him that post.

16. As a necessary part of his claim, the claimant asserts that one, or more, or all, of the members of the selection committee perceived Mr Bryant to be a Catholic, perceived Mr Bryant not to be a Protestant, and perceived Mr Bryant to be a supporter of Irish nationalism.
17. The respondents defend these proceedings, mainly on the following grounds:

(1) The weightings given to the various comparative selection criteria were all appropriate.

(2) Mr Bryant was not over-graded in any respect.

(3) None of the members of the selection committee perceived Mr Bryant to be a Catholic, not to be a Protestant, or to be a supporter of Irish nationalism.

(4) In any event, no relevant act or omission was affected in any way by religion or by political opinion.

The evidence

18. We received oral testimony from the claimant, who was the only witness to give evidence on his behalf.
19. We received oral testimony, on behalf of all the respondents, from Mr Donaghy, Councillor Kerr ("Mr Kerr"), Mrs McReynolds and Mr Bryant.
20. In respect of all of the witnesses, witness statements were prepared and exchanged by the parties. The contents of each witness statement were read out to the Tribunal, as part of the oral testimony of the various witnesses.
21. We saw the following documents:

(1) The contents of a large agreed bundle, consisting of approximately 430 pages in total.

(2) A small number of miscellaneous documents, which were presented to us during the course of the hearing, but which were never included in any booklet.

(3) Our attention was also drawn to the contents of Part 5 of the latest version of the Fair Employment Code of Practice.

We told the parties that we would have regard only to documents to which our attention was specifically drawn.

The facts

22. We now set out findings of fact which are relevant to the issues which we have

determined, together with certain other conclusions and observations which arise in the context of those findings of fact.

23. The claimant began employment with Sperrins in January 2003 as a Project Officer. In September 2004, the claimant was asked by Sperrins to act up as Manager, because the previous Manager had left that post.
24. Sperrins advertised for a Manager on 24 September 2004. The eligibility criteria in respect of that post required that applicants have a third level degree "in a business discipline". The claimant's degree was in geography, which is not a business discipline. Accordingly, although the claimant applied for the post of Manager, he was not short-listed. Sperrins offered the post to a person they regarded as the most suitable candidate. That candidate declined the appointment. As no other candidate was deemed to be suitable for appointment, the post of Manager was not filled at that time. The claimant continued in his role as acting Manager thereafter.
25. Sperrins re-advertised the post of Manager on 7 January 2005. The criteria on that occasion were the same as the criteria on the previous occasion, except that the eligibility criteria now required a third level degree in any discipline (as distinct from a third level degree in a business discipline). The claimant applied for the vacancy again. On this occasion, he was treated as eligible, was short-listed, and was interviewed.
26. Seventeen applications were received before the closing date in response to the January advertisement.
27. The relevant selection committee consisted of four members, all of whom are from a Catholic background. Three of them (Mr Donaghy, Mr Kerr, and Mr McKenna) can properly be regarded as having political opinions which are supportive of the aims of Irish nationalism. The fourth member of the panel, Mrs McReynolds, professes not to have any strong opinions (whether in favour of nationalism or in favour of Northern Ireland unionism) on any relevant political matter.
28. According to evidence given by Mr Donaghy, he believed at the time that Mrs McReynolds was not a Catholic. We consider that he had no good reason for any such belief, and that he had made no appropriate enquiries in that connection.
29. We also accept that the background to Mrs McReynolds's inclusion in the committee was as follows. First, Mr Donaghy sought to arrange for Mr Bertie Montgomery to be included as a member of the committee. (Mr Montgomery is an Ulster Unionist Councillor and a Protestant). Mr Montgomery was unavailable. He then contacted Ms Ann Clyde, to ask her to sit on the panel. (Ms Clyde is a Protestant). She declined to do so. Then he asked Ms Jennifer Henry to sit on the panel. (Ms Henry is a Protestant). Ms Henry declined to sit on the panel. It was only then that he asked Mrs McReynolds to sit on the panel.
30. The selection criteria were set out in a document entitled "Job specification: Manager - Sperrin Tourism Ltd". According to that document, the essential criteria were as follows:

" Essential Criteria

A third level qualification or equivalent.

A minimum of 3 years management experience gained in

either a business, commercial or tourism environment dealing with a wide range of issues such as finance and marketing, within a public, private or community Tourism sector organisation.

Experience of developing and implementing strategic

business/marketing plans is essential.

Demonstrate experience of building and maintaining strategic

alliances with partners in the tourism industry.

Demonstrate experience in securing funding from a variety of

sources.

Demonstrate experience of promoting public awareness of an

organisation.

Demonstrate the ability to develop and motivate effective

teams.

Demonstrate the experience of the governance of

organisations, e.g. preparation of board papers, organisation of an AGM.

Access to transport for the purpose of company business".

31. The claimant met all of those eligibility criteria.
32. Mr Bryant did not meet some of those eligibility criteria. First, he had no experience of building or maintaining strategic alliances with partners in the tourism industry. Secondly, he did not have 3 years management experience dealing with a wide range of issues arising within a public tourism sector organisation, within a private sector tourism organisation, or within a community tourism sector organisation. (We are satisfied that the second of the essential criteria, as listed above, has to be

construed as referring to issues arising within public tourism organisations, private tourism organisations, or community tourism organisations).

33. Although Mr Bryant did not meet either of the criteria above, he was nevertheless short-listed. None of the respondent's witnesses has provided the Tribunal with a truthful and accurate explanation which provides good reason for the failure to implement all the eligibility criteria in relation to Mr Bryant.
34. Had it not been for the committee's decision to allow Mr Bryant to continue to participate in the selection competition, the claimant would inevitably have been chosen as the successful candidate. (This is obvious because of the fact that he was chosen as the reserve candidate). Therefore, by unfairly waiving eligibility criteria in Mr Bryant's case, the selection committee did the claimant a serious injustice.
35. Nothing in this decision should be construed as an adverse reflection upon Mr Bryant, his qualities, or his abilities. Clearly, at all material times, he was a person with considerable qualifications, considerable ability, and considerable experience and expertise. Those matters are not in question. What has been in question in these proceedings is whether or not his application, in respect of the relevant post, was an eligible application and whether or not the claimant, or Mr Bryant, best met the selection criteria.
36. Above, we have already quoted the essential criteria as set out in the relevant job specification. We now quote the criteria contained within that specification under the headings "Desirable Criteria" and "Personal Traits":

" Desirable Criteria

A minimum of 4 years management experience gained in either a

business, commercial or tourism environment dealing with a wide range of issues such as finance and marketing, within a public, private or community tourism sector organisation.

Demonstrates responsibility for the formulation, development and implementation of strategic operational plans.

Demonstrates a sound understanding of relevant issues in the tourism sector locally, nationally and internationally.

Demonstrates experience of speaking authoritatively on tourism issues at local and national level.

Personal Traits

The successful candidate will be expected to demonstrate the following:

Drive and enthusiasm.

Teamwork.

Effective communication.

Ability to motivate others".

37. The members of the selection committee rated the various candidates on the basis of a rating form which set out the following criteria, with the following maximum ratings:

Criteria Weighting

Financial management 20

Personnel management 20

Marketing experience 20

Strategic planning experience 15

Strategic alliances 10

Funding experience 10

Governance experience 05

38. The claimant criticised some of those maximum weightings as being inappropriately high, or inappropriately low. However, having regard to the functions of the relevant post, the weightings seem to us to be broadly appropriate.
39. In any event, we are satisfied that the weightings used in the January 2005 selection process were the same as those which had been used in the 2004 process in respect of the same post. Mr Bryant had not been a candidate in respect of the 2004 selection process. From the very beginning of the 2004 process, it was obvious that the claimant was an ineligible candidate in the context of the 2004 eligibility criteria. Against that background, we are satisfied that the weightings were not unfairly skewed with a view to providing unwarranted advantage to Mr Bryant.
40. We are satisfied that Mr Bryant was over-rated by the selection committee, in applying the weightings, in respect of some of the selection criteria. However, no useful purpose would be served by providing details in relation to that aspect of the matter (in view of our findings on the eligibility issue, and in view of our conclusions on the question of whether, and to what extent, selection committee members had knowledge or suspicions in relation to the background or opinions of Mr Bryant).
41. Mr Peter McKenna was not called on behalf of the respondents to give evidence. The claimant very fairly accepted that it was not reasonably practicable for the respondents to call Mr McKenna to give evidence on the respondents' side of the case. In those circumstances, it would not be proper for us to draw any adverse inference arising out of the omission to call Mr McKenna as a witness.
42. We did receive evidence from the other three members of the selection committee. We are satisfied that evidence which they gave to us in relation to the short-listing was, in some significant respects, inaccurate. (In arriving at that conclusion, we took account of the manner and demeanour of each relevant witness when he or she was giving evidence in relation to that aspect of the case; we took account of the fact that there were discrepancies between the evidence on these matters given by Mrs McReynolds on the one hand and by Mr Donaghy and Mr Kerr on the other hand; and we took full account of the extent to which that part of the respondents' evidence was inherently probable or improbable).
43. We have seen the application form which Mr Bryant submitted in support of his application for the relevant post. We note in particular the following aspects of that form:

(1) The form shows that Mr Bryant graduated from the University of Leeds in 1996.

(2) The form shows that until October 2003, Mr Bryant had worked, throughout his working life, in Great Britain.

(3) The form shows that, at the material time, he was an active member of both the National Trust and the Royal Society for the Protection of Birds.

(4) The two referees listed by him were a Mr Paul Rountree and a Mrs G Sheddick, OBE.

44. We regarded Mr Bryant as an accurate, careful and truthful witness. In his Witness Statement, he asserted that he was in no way influenced by "local political sentiments". In light of that evidence, we are satisfied that, in reality, Mr Bryant was not, at the material time, a supporter of Irish nationalism.
45. Mr Bryant was living in Draperstown at the relevant time. Most of the people living in Draperstown are Catholics. Most of the people living in Draperstown are supports of Irish nationalism.
46. However, at the relevant time, Mr Bryant had only recently come from England. In our view, in the context of a Northern Ireland town, the predominant religion, and the predominant political opinion, within that town, are poor indicators of the religion and political opinion of a newcomer to the town who was born and brought up in England.
47. Mr Bryant's wife worked for the Countryside Access and Activities Network, which had made presentations to the Board of Sperrins. CAAN had also worked with Magherafelt District Council, of which Mr Kerr is a member. However, we are satisfied that Mr Donaghy, Mr Kerr and Mrs McReynolds did not know Mr Bryant's wife personally. We are not satisfied that Mr Peter McKenna knew her, or that he knew her family.
48. Until the date of the hearing, the claimant genuinely believed that Mrs Bryant's family were prominent business people in the Draperstown area. However, we are satisfied that they are not prominent business people. Instead, her father owns a small butcher's business in the locality, while cousins of hers own a pub in the Draperstown locality.
49. Mr Donaghy, Mr Kerr and Mrs McReynolds all gave evidence that they were not acquainted with Mr Bryant, or with his wife, at the material time. Furthermore, they all gave evidence that, at the material time, their only knowledge of Mr Bryant was the information contained in his application form. We accept their evidence on these points. In accepting those aspects of their evidence, we paid particular attention to the following. First, we assessed their evidence in light of their

demeanour and manner of giving evidence, in relation to that aspect of the testimony which they each provided to us. Secondly, we considered that evidence in light of the inherent probabilities and improbabilities. Thirdly, we considered that evidence within the context of the undisputed facts.

50. The January 2005 interviews were held at a venue within a locality which is predominantly nationalist. However, the claimant had often visited that venue in the past and his performance at interview was unaffected by the committee's choice of venue.
51. The claimant has drawn attention to instances of what he regards as unfair treatment, on the part of the committee, during the period after the outcome of the 2005 selection process had become known. We have carefully considered those allegations, but are not convinced that any of the relevant instances involved unfairness or unwarranted disadvantage.
52. There have been serious breaches of relevant aspects of the Fair Employment Code, especially in relation to the decisions in eligibility and in relation to the preservation of recruitment process documents.

The submissions

53. The parties' closing submissions were made in writing, with the consent of both parties. The procedures in relation to those written submissions ("the Submissions") broadly followed those recommended by the EAT in Barking & Dagenham London Borough -v- Oguoko [2000] IRLR 179.
54. Pursuant to those arrangements, Submissions were indeed exchanged between the parties, and copied to the Secretary of the Tribunals, by 30 April 2007. Each party was free to provide written comments ("Comments") on the other party's Submission, provided that any such Comments were furnished within seven days of receipt of that other party's Submission. Comments were provided on behalf of the respondents. No Comments were provided on behalf of the claimant.
55. In the course of arriving at this decision, we have taken careful note of all the arguments which have been put before the Tribunal. The Submissions provide a permanent record of each party's arguments. In those circumstances, it is unnecessary to provide comprehensive details of the arguments in this decision.
56. We had invited the parties to draw our attention, (in the course of the Submissions) to any aspects of the evidence which we had already received which, in the view of the presenting party, was particularly helpful to that party's case.
57. In considering the factual assertions which are made in the two Submissions, we have kept in mind that a factual assertion in a Submission is only of significance to the extent that it accurately reflects the evidence which had already been received by the Tribunal.

The issues

58. The main issues are as follows:-

(1) Is Mr Bryant an appropriate statutory comparator?

(2) If so, was the claimant treated less favourably (in any respect which is relevant in the context of his claims) than Mr Bryant was treated?

(3) If so, was the relevant less favourable treatment accorded on a relevant prohibited ground?

(4) Has the claimant proven facts from which the Tribunal could conclude (in the absence of an adequate explanation) that any respondents had committed an act of unlawful religious discrimination and/or unlawful political discrimination against the claimant, or is to be treated as having done so?

(5) If so, has the relevant respondent proven that that particular respondent did not commit, or is not to be treated as having committed, that act?

The law

59. In the context of each of the claims, two elements of the relevant definition of direct discrimination have to be satisfied. First, in comparison with the treatment accorded to an appropriate statutory comparator, there must have been less favourable treatment of the claimant. Secondly, although a prohibited ground (the relevant ground of religious belief, or the relevant ground of political opinion, as the case may be) need not be the main ground for the treatment, such a ground must be a substantial and effective cause; it must be an important, or significant, factor. (In this context, see Igen Ltd -v- Wong [2005] IRLR 258, at paragraph 37 of the judgment).
60. In our view, it is clear, as a matter of law, that less favourable treatment (within the meaning of the Order) occurs whenever an eligible claimant and an ineligible appropriate statutory comparator participate as competitors, in a competitive recruitment process, if the eligibility rules are waived, so that the comparator (although ineligible) is able to continue to participate in the competition.
61. Article 2(3) and Article 3(3) have already been set out above (at paragraphs 7 and 8 above). The combined effect of both of those provisions is as follows:

(1) In the context of a religious discrimination claim, a particular individual

will not be an appropriate statutory comparator if that individual neither holds, nor is "supposed" to hold, religious beliefs (or a lack of particular religious beliefs) different from those of the claimant.

(2) In the context of a political discrimination claim, a particular individual will not be an appropriate statutory comparator if his actual or supposed political opinions, or his (actual or supposed) lack of political opinions, mirror those of the claimant.

62. In the definitions of direct religious discrimination and direct political discrimination, the "less favourable treatment" element will not be fulfilled, in any particular case, if the statutory comparator chosen by the claimant is not a valid statutory comparator. (See Shamoon -v- Chief Constable of the Royal Ulster Constabulary [2003] 1 ICR 337).
63. A new Article 38A was inserted into the Order by the Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003, for the purpose of ensuring compliance with the requirements of the EU Framework Employment Directive.
64. Article 38A provides as follows:

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

(a) has committed an act of unlawful discrimination or unlawful harassment against the complainant, or

(b) is by virtue of Article 35 or 36 to be treated as having committed such an act of discrimination or harassment against the complainant,

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

65. There has been extensive case law in Great Britain on the implications of the statutory provisions in Great Britain which are analogous to Article 38A of the 1998 Order:

(1) The leading case in this area of law is the English Court of Appeal decision in Igen Ltd -v- Wong [2005] IRLR 258.

(2) The principles which were set out in Igen were endorsed, as a guide for tribunals in Northern Ireland discrimination cases, by the Northern Ireland Court of Appeal in McDonagh -v- Thom [2007] NICA 3 (17 January 2007).

(3) In Madarassy -v- Nomura International plc [2007] IRLR 246, the English Court of Appeal has confirmed and amplified the principles which were set out in Igen.

(4) In Madarassy, the court also endorsed and commended the statements of the law which are contained in the Employment Appeal Tribunal judgments in Laing -v- Manchester City Council [2006] IRLR 748 and in Network Rail Infrastructure Ltd-v- Griffiths-Henry [2006] IRLR 865.

66. At the end of Igen, the Court of Appeal set out what is known as "The Revised

Barton guidance". That guidance envisaged a two-stage process for addressing the burden of proof in employment discrimination cases. The following paragraphs of that guidance are particularly relevant to the first stage of that process:

"(1) Pursuant to section 63A of the SDA, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which … is to be treated as having been committed against the claimant. These are referred to below as "such facts".

(2) If the claimant does not prove such facts he or she will fail.

(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of discrimination … .

(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of analysis by the tribunal will therefore depend on what inferences it is proper to draw from the primary facts found by the tribunal.

(5) It is important to note the word "could" in s.63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

(6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.

……..".

67. In Network Rail (at paragraph 19 of the judgment), Elias P accepted that nothing in the new statutory burden of proof provisions alters the evidence needed to establish a prima facie case as that concept was used in the judgment of Neill LJ in King -v- The Great Britain-China Centre [1991] IRLR 513.
68. Prior to the enactment of the new statutory burden of proof provisions, King was the leading case on evidential issues in employment discrimination cases. In his judgment in King, Neill LJ set out various principles and guidance. As part of those principles, he set out the following:-

"(4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the Tribunal will look to the employer for an explanation. If no explanation is then put forward or if the Tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the Tribunal to infer that the discrimination was on racial

grounds. That is not a matter of law but, as May LJ put it in Noone, almost "common sense" …"

69. Accordingly, at the first stage of the Igen process, a claimant has to establish what would have been a prima facie case of discrimination prior to the enactment of Article 38A.
70. It must be made clear that, in the present context, a prima facie case means merely that a party's evidence in support of a particular issue is sufficiently weighty to entitle (as distinct from obliging) a reasonable tribunal to decide the issue in his favour:

(1) In Madarassy (at paragraph 57 of the judgment), Mummery LJ made it clear that, in section 63A(2) of the Sex Discrimination Act 1975, the words "could conclude" had to be taken to mean that "a reasonable tribunal could properly conclude".

(2) Much the same point was made by the Lord Chief Justice in the McDonagh judgment (at paragraph 19) when he pointed out that, at the first stage of the Igen process, claimants and plaintiffs did not have to discharge "… a final burden [of proof] …".

Conclusions

71. The claimant was treated very unfairly by the selection committee. It treated him unfairly in two respects. First, it allowed the claimant's competitor, Mr Bryant, to continue to participate in the selection competition, even though Mr Bryant did not meet all of the eligibility criteria. Secondly, the committee over-graded Mr Bryant in relation to some of the comparative selection criteria. However, the claimant's claims have to be dismissed, for the following reasons.
72. First, Mr Bryant is not a proper statutory comparator:

(1) In reality, at the material time, he was not a Catholic, he was a Protestant, and he was not a supporter of Irish nationalism.

(2) The claimant has failed to prove, on the balance of probabilities, facts from which a reasonable tribunal could properly conclude that (at the material time) any member of the selection committee "supposed" or perceived Mr Bryant to be a Catholic, or not to be a Protestant, or to be a supporter of Irish nationalism.

(3) The claimant has failed to prove, on the balance of probabilities, facts from which a reasonable tribunal could properly conclude that (at the material time) anybody other than the claimant "supposed" Mr Bryant to be a Catholic, or not to be a Protestant, or to be a supporter of Irish nationalism.

(4) We are satisfied on the balance of probabilities, that (at the material time) Mr Bryant was not "supposed" or perceived to be a Catholic, or not to be a Protestant, or to be a supporter of Irish nationalism, by Mr Donaghy, by Mr Kerr or by Mrs McReynolds. We are not satisfied, on the balance of probabilities, that Mr Bryant was supposed or perceived by Mr Peter McKenna to be a Catholic, or not to be a Protestant, or to be a supporter of Irish nationalism.

73. Secondly, we conclude that the claimant has failed to prove facts from which a reasonable tribunal could conclude, in the absence of an adequate explanation, that any relevant treatment was accorded to the claimant on a relevant prohibited ground. (The latter conclusion is a consequence of our conclusions in connection with the question of whether selection committee members "supposed" or perceived Mr Bryant to be a Catholic, not to be a Protestant, or to be a supporter of Irish nationalism).

Chairman:

Date and place of hearing: 12 to 16 March 2007, Belfast.

Date decision recorded in register and issued to parties: