Fair Employment Tribunal Northern Ireland Decisions

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You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> McGivern v Northern Ireland Civil Service Department for Regional DeveloD [2009] NIFET 14_08FET (27 May 2009)
URL: http://www.bailii.org/nie/cases/NIFET/2009/14_08FET.html
Cite as: [2009] NIFET 14_8FET, [2009] NIFET 14_08FET

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THE FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 014/08 FET & 133/08

CLAIMANT: Marie-Therese McGivern

RESPONDENTS: 1. Northern Ireland Civil Service

2. Department for Regional Development

DECISION

The decision of the tribunal is that the claimant was not discriminated against by the respondents on grounds of sex or religious belief and her claims are dismissed.

Constitution of Tribunal:

Chairman: Mr P Kinney

Members: Ms McFarline

Mr Barron

Appearances:

The claimant was represented by Mr Potter, BL.

The respondents were represented by Mr Lockhart, QC, and Mr Wolfe, Barrister at Law, instructed by the Departmental Solicitor’s Office.

Issues

1. Whether the claimant has been subjected to indirect discrimination on grounds of sex or religious belief by the short listing panel consciously or subconsciously introducing a hidden criterion or practice which caused the panel to give advantage to internal candidates from the Civil Service, specifically those who were at Grade 3 or Assistant Secretary grade or its equivalent in the Home Civil Service.

2. The Tribunal heard evidence from the claimant, Lady Brenda McLaughlin, Bruce Robinson and David Watkins. The Tribunal was also referred to various documents in the agreed bundle. The Tribunal has only taken into consideration those documents to which it was specifically referred.

FACTS FOUND

3. The claimant applied for the position of Permanent Secretary of the Department of Regional Development in October 2007.

3. She had previously applied for the Permanent Secretary posts at the Department of Culture Arts & Leisure (DCAL) in February 2006 and the Department of Agriculture and Regional Development (DARD) in March 2007. On both previous occasions the claimant was shortlisted for interview.

3. The claimant received a letter dated 17 October 2007 from the Department of Finance & Personnel (DFP) advising her that, at a meeting of the selection panel on 12 October 2007, it had been decided not to shortlist her.

3. The shortlisting panel comprised four individuals.

3. Lady Brenda McLaughlin was the Chairman of the panel. Lady McLaughlin is the Chair of the Civil Service Commission for Northern Ireland since May 2006. She has no background in the Civil Service and over the previous two decades held a number of senior public sector and private sector positions. In that time she had been involved in recruitment and selection at a senior level including senior appointments to the Eastern Health and Social Services Board, senior appointments at the Queens University of Belfast and senior appointments for the Northern Ireland Civil Service. Lady McLaughlin’s perceived community background is Roman Catholic. She had received recruitment and selection training most recently before this competition in July 2006.

3. Lady McLaughlin was Chairman of the Opportunity Now campaign in Northern Ireland for nine years, working to improve the position of women in the workplace. She was a founder and Chair of the Women’s Forum at Queens University Belfast, concerned with promoting and improving the position of women at the university.

3. Mr David Watkins was a Northern Ireland civil servant from 1972-2004. He was Senior Director of the Northern Ireland Office from 1998 to 2004, a post equivalent to Permanent Secretary grade. He has previous experience of selection exercises at a senior level and had attended recruitment and selection interview training, most recently in February 2006. Mr Watkins’ perceived community background is Protestant.

3. Both Lady McLaughlin and David Watkins were members of the selection panel for the post of Permanent Secretary to DCAL for which the claimant was an applicant and was shortlisted for interview.

3. Mr Bruce Robinson is a Permanent Secretary in the Office of the First Minister and Deputy First Minister, and Head of the Civil Service, a post he has held since July 2008. At the time of this competition for Permanent Secretary in DRD he was Permanent Secretary in DFP. He replaced Sir Nigel Hamilton as a panel member for this competition in early October 2007.

3. Mr Robinson began his professional career as an accountant, having spent some time overseas and joined the Civil Service in 1982. He spent 17 years in the IDB for the last five of which he was Chief Executive. He was then appointed Permanent Secretary in DETI in 2000 and Permanent Secretary in DFP in January 2006. He is classified as Protestant for fair employment purposes. He received training on recruitment and selection most recently before this competition in August 2006.

3. Mr David Dobbin did not give evidence to the tribunal. However it was put in evidence, and the tribunal has accepted, that Mr Dobbin was employed in the private sector as Chief Executive of United Dairy Farmers. He had no previous experience of sitting on Civil Service appointment panels.

3. Lady McLaughlin, the Chair of the shortlisting panel, held a preliminary meeting with Sir Nigel Hamilton, the then Head of the Civil Service, on 23 August 2007. Lady McLaughlin specifically recorded and recalled that Sir Nigel Hamilton at this meeting commented that “a female would be excellent for the post”. Sir Nigel Hamilton outlined the dimensions of the post in terms of roles and responsibilities. The membership of the shortlisting panel was agreed as Sir Nigel Hamilton, David Watkins, David Dobbin and Lady McLaughlin.

3. The panel met for a pre-advertising meeting on 30 August 2007. Panel members were provided with draft copies of the candidate information booklet, the application form and the proposed job advertisement. The panel members also received a copy of the Northern Ireland Civil Service guide to the recruitment process for panel members. It was agreed by the parties and accepted by the tribunal that the appropriate version of the guidance is Version 2, identified to the Tribunal as “DFP 2”.

3. At this meeting, the panel agreed the documentation for the competition. They agreed the contents of the job description and the candidates’ information booklet. Particular attention was paid to the formulation of eligibility criteria. In discussion the panel took into account the views of Sir Nigel Hamilton, who had stressed the high policy content of the job, with increasingly significant national and international dimensions.

3. The panel considered it essential that the candidates demonstrate experience of working on complex policies at a regional, national or international level. The panel deliberately set the experience on an alternative rather than cumulative basis (“or” rather than “and”) to encourage a wider pool of candidates.

3. The panel also decided criterion 4 (which was the criterion to demonstrate experience of policy) should be further tested at interview as set out in the candidate information booklet.

3. The panel agreed that if there was to be a shortlisting process it would be carried out as set out in the candidates’ information booklet.

3. The panel at this meeting also agreed the advertising required for this post to ensure a wide and representative section of the community were made aware of the post. Advertising was carried out in Northern Ireland, Republic of Ireland and Great Britain.

3. The claimant accepted that policy formulation would be an important part of the role of the Permanent Secretary of DRD.

3. The candidate information booklet set out as part of the job description the key responsibilities of the role:

“The Permanent Secretary is responsible for providing advice to the Minister and for ensuring the effective implementation of policy. In doing so the Permanent Secretary is required to provide strategic leadership in developing and planning the role of the Department in a regional, national and international context. The Permanent Secretary also takes direct and personal responsibility for the deployment of financial and human resources across the Department as a whole in a rapidly changing environment”.

3. The shortlisting criteria referred to above and contained in the candidate information booklet is as follows:

“The selection panel may decide to interview only those applicants who appear, from the information available, to be most suitable in terms of relevant experience and ability”.

3. The candidate information booklet also contained guidance to candidates as to how they should complete their application forms.

“Write down clearly your personal involvement in any experience you quote. Write “I” statements, eg “I planned meetings, I managed a budget, I prepared a presentation”. It is how you actually carried out the piece of work that the panel will be interested in”.

Identify relevant examples … it is your unique role the panel are interested in, not that of your team or division”.

3. The competition attracted 21 applicants, comprising 11 external candidates and 10 “internal” candidates (ie 9 candidates from Northern Ireland Civil Service and one candidate from the Home Civil Service).

Eligibility sift meeting on 12 October 2007

3. Before this meeting Bruce Robinson replaced Nigel Hamilton as a member of the shortlisting panel. All the applications were anonymised. Each candidate was assessed against the four eligibility criteria. Fourteen candidates, including the claimant, were judged to have met the eligibility criteria.

3. Eligibility criteria were applied on a simple pass/fail basis. If there was evidence of the candidate meeting the criteria they were deemed “eligible”.

3. The panel decided to apply the shortlisting criteria set out in the candidate information booklet. They commenced this exercise by a re-examination of criterion 4. Criterion 4 was to be specifically examined at interview. The panel acknowledged that this was a high level policy post and criterion 4 best reflected the characteristics of the post.

3. As a result of this exercise, 10 candidates were shortlisted. The panel decided to invite these 10 for interview. The claimant was not shortlisted for interview.

3. Of the 14 candidates who were deemed eligible, four were external candidates and 10 internal candidates. The panel shortlisted 10 who were all internal candidates.

3. The panel considered that the claimant had not demonstrated sufficiently clear evidence of her personal involvement in policy development. They considered that they could not discern exactly what her personal experience and responsibility had been in policy development and delivery.

3. Eight candidates ultimately were interviewed. All were regarded as suitable for appointment. In the earlier competition for Permanent Secretary for the DCAL post, 12 applicants were interviewed and only three were considered suitable for appointment.

3. Of the last four appointments to Permanent Secretary, two have been Catholic and two have been Protestant, one was female and three male. Since recruitment to the senior Civil Service was opened to external applicants from around 2000, two external candidates have been appointed as Permanent Secretaries.

3. The claimant in her evidence said she did not believe that the panel had a conscious bias or made a conscious decision to favour internal applicants. She felt that the panel applied hidden criteria sub-consciously.

3. At the Tribunal, the claimant specifically focussed on the application forms of candidates 18 and 20 in the competition. The claimant did not refer to the other candidates who were eligible but not shortlisted. She did not challenge that these candidates were properly excluded at the shortlisting stage nor did the claimant challenge the applications and the shortlisting of the other eight successfully shortlisted candidates.

3. The claimant did not make the case that shortlisted candidates should not have been shortlisted, rather that she should also have been shortlisted as she was, in her view, no worse if not better than some of the candidates. She compared herself specifically to candidates 18 and 20.

3. It was accepted by the respondent that there was an imbalance in the Senior Civil Service in terms of gender and religious belief. Catholics and women remained underrepresented at Deputy Secretary level in the Civil Service. The statistics show that approximately 80% at this level were male and 20% female, 73% percent were Protestant and 27% Catholic. In accepting this the respondent also pointed to considerable improvements made particularly in relation to the religious imbalance and accepted that more work needed to be done in relation to the gender imbalance.

The claimant’s application form

3. The claimant’s application form was considered by the panel. The panel felt that the claimant had not demonstrated sufficiently clear evidence of her personal involvement and policy development. In relation to criterion 4 the claimant used phrases such as “worked rigorously with”, “allowed us to develop key policies”, “under my leadership”, “I am aware of all aspects of policy, design and delivery”. The panel did not feel they could discern exactly what the claimant’s personal experience and responsibility had been in policy development and delivery. The panel considered that her evidence referred mainly to team working.

3. In her application form the claimant described that she was part of an assessment/commentary process for work. The panel had difficulty in understanding what that meant.

3. In relation to phrase “under my leadership” members of the panel considered this term ambiguous. It did not demonstrate clearly that the claimant had an active role in policy compared to a reporting role from others who had the policy development responsibility. Similarly the claimant had made reference to leading the Belfast delegation to the Euro Cities network of 113 cities. The panel could not discern what contribution the claimant made as one member of a delegation out of 113 delegations. The cumulative impact of all the ambiguities weakened the claimant’s application.

Candidate 18’s application

3. The panel contrasted the way in which candidate 18 completed his/her application form. The panel felt it demonstrated a high frequency of personal involvement in policy development. This candidate used phrases such as “I delivered a five year strategic plan”, “I led the policy review”, “I … have been responsible since 2003 for ensuring the policy and delivery”.

3. Similarly candidate 20 in the panel’s view demonstrated significant policy leadership roles. Again the candidate demonstrated evidence of personal involvement using phrases such as “I have been responsible”, “I have been taking the lead”.

The law

3. Article 3 of the Sex Discrimination Order (Northern Ireland) 1976 (as amended) provides:

“Direct and indirect discrimination against women

3. (1) In any circumstances relevant for the purposes of any provision of this order, other than a provision to which paragraph (2) applies, a person discriminates against a woman if –

(a) on the grounds of her sex he treats her less favourably than he treats or would treat a man, or

(b) he applies to her a requirement or condition which he applies or would apply equally to a man, but

1. which is such that the proportion of woman who can comply with it is considerably smaller than the proportion of men who can comply with it.

2. which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and

3. which is to her detriment because she cannot comply with it.

(2) In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if -

(a) on the grounds of her sex he treats her less favourably than he treats or would treat a man, or

(b) he applies to her a provision criterion or practice which he applies or would apply equally to a man, but -

1. which puts or would put woman at a particular disadvantage when compared with men.

2. which puts her at that disadvantage, and,

3. which he cannot show to be a proportionate means of achieving a legitimate aim.

3. The Fair Employment and Treatment (Northern Ireland) Order 1998 as amended contains analogous provisions.

3. Article 63A of the Sex Discrimination Order provides:

“(2) Where, on the hearing of a complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent –

(a) has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of Part III or

(b) is by a virtue of Article 42 or 43 to be treated as having committed such an act of discrimination or harassment against the complainant, the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, he is not to be treated as having committed that act.”

3. Guidance on the application of the Burden of Proof Regulations has been given by the English Court of Appeal in Igen Ltd v Wong [2005] IRLR 258 in relation to a sex discrimination case. The guidance in Igen has been endorsed and applied in a number of cases, most notably by the Court of Appeal in the case of Madarassy v Nomura International plc [2007] EWCA Civ 33 and by the Northern Ireland Court of Appeal in the case of Arthur v Northern Ireland Housing Executive and SHL UK Ltd [2007] NICA25.

3. In Madarassy, Lord Justice Mummery said:-

“The Court in Igen v Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.

“Could conclude” in Section 63A(2) must mean that “a reasonable tribunal could properly conclude” from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint.”

3. This is a case of indirect discrimination. Guidance can be obtained from the comments of Lord Justice Simon Brown in the case of Nelson v Carillion Services Limited [2003] ICR1256.

“It seems to me tolerably clear that the effect of Section 63A was to codify rather than alter the pre-existing position established by the case law. The burden of proving indirect discrimination under the 1975 Act was, as Mr Langstaff accepts, always on the complainant, and there pursuant to Section 63A it remains, the complainant still having to prove facts from which the tribunal could conclude that he or she has been unlawfully discriminated against “in the absence of an adequate explanation” from the employer.”

The Tribunal’s conclusions

3. In this case the claimant suggests that the respondent, through the shortlisting panel, applied a provision criterion or practice that only candidates employed by the Northern Ireland Civil Service at Deputy Secretary level or its equivalent grade in the Northern Ireland Civil Service or the Home Civil Service would be shortlisted for interview. The claimant further alleges that the shortlisting panel probably subconsciously imported this provision criterion or practice into their assessment.

3. The respondent says that it shortlisted the best candidates for the position of Permanent Secretary of DRD. It is a coincidence that all those candidates who were shortlisted were internal candidates. The Tribunal must examine the actions of the panel and it’s individual members. Did they decide to shortlist only internal candidates, whether that decision was conscious or unconscious?

3. The claimant’s case is that she was at least as well qualified as candidates 18 and 20 and should have been shortlisted for the post. Her evidence concentrated on her application demonstrating to a sufficient standard the competences sought.

3. The Tribunal accepts that the panel considered only the information contained in the application forms on an anomymised basis. The claimant in her evidence accepted that the decision to shortlist is for the selection panel and it was not necessary that all eligible applicants should be shortlisted. The claimant herself in evidence also said that she did not believe that there was a conscious decision taken by the members of the panel but that they applied the hidden criteria subconsciously.

3. In the shortlisting exercise the panel were looking for depth and strength of experience and evidence of personal responsibility. The panel felt the claimant’s answers were more ambiguous and less personal.

3. The claimant in making her case did not examine the forms of the other external candidates who were sifted out at shortlisting stage. She makes her case on her own application and the contention that she should have been shortlisted.

3. The Tribunal is satisfied from the evidence it heard that the panel were entitled to regard the claimant’s application as weaker than the applications of candidates 18 and 20. It was a reasonable conclusion for the shortlisting panel to reach. This is not to say that the claimant was not worthy of shortlisting. It is however to say that the content and structure of her application form in the context of this competition (and bearing in mind the information available in the candidates information booklet), meant the panel could reasonably come to the conclusion that the claimant provided a weaker demonstration of the required criteria than the applicants who were shortlisted for interview. The tribunal does not consider that any credible evidence has been given of any conscious decision made by the panel to prefer internal candidates.

3. The Tribunal determines that there is no credible basis for the claimant’s allegations. There is of course the bare fact that of a field of 21 candidates, 10 internal and 11 external, only the 10 internal candidates were successful in being shortlisted for interview. However the Tribunal does not conclude that this was as a result of a conscious or unconscious criterion provision or practice applied by the panel. In reaching this conclusion, the Tribunal took into account the following matters:

1. The composition of the Panel, its experience and its background.

1. Two members of the panel, including its Chairman Lady McLaughlin, were external to the Civil Service. Lady McLaughlin in particular has a strong track record of support for equal opportunities and considerable experience in the recruitment field.

2. Both Lady McLaughlin and Mr Watkins had previously been members of the selection panel for the post of Permanent Secretary of DCAL, and had shortlisted the claimant for interview.

3. The panel went to some lengths to ensure that a trawl for external candidates was made and indeed such a trawl was successful in that it attracted 11 external candidates.

4. The evidence provided by the three witnesses for the respondent was consistent between them, consistent with their witness statements and given in a clear logical and coherent manner. It is the Tribunal’s view that the panel put considerable effort into ensuring that a merit based competition was conducted.

2. The claimant had herself previously been shortlisted for two Permanent Secretary posts in DARD and DCAL.

3. Since the Senior Civil Service had been opened up to external competition, two Permanent Secretaries have been appointed whose background was outside the Civil Service and one of which was a female.

4. Of the last four appointments as Permanent Secretary two were of Catholics and two were of Protestants.

5. In particular the members of the panel who gave evidence to the tribunal gave consistent and credible evidence of their view of the claimant’s form. The form was ambiguous and had limited reference to her own personal experience of specific policies and policy making.

6. The claimant did not provide evidence of whether or not the other candidates who were eligible but not shortlisted which may have shown other candidates who should have been shortlisted. Instead the claimant focussed on her own application form and those of candidates 18 and 20.

7. The claimant did not suggest that the candidates who were shortlisted should not have been shortlisted on merit, rather that if candidates 18 and 20 were shortlisted then she should have been as well.

8. The claimant did not seek to challenge the shortlisting of the other eight candidates. The Tribunal concludes from this that the claimant did not dispute that these candidates were properly shortlisted, albeit that all of them were internal candidates.

3. Even if the Tribunal had found that a provision, criterion or practice was in existence the Tribunal does not consider that the claimant has shown that she has been put at a particular disadvantage either on grounds of gender or religion.

3. It was originally the claimant’s case that the appropriate pool to consider were the 14 candidates who were eligible. The Tribunal does not accept that is the appropriate pool. In the Tribunal’s opinion the appropriate pool is for all those potential applicants who have the required qualifications for the post apart from the requirement which is allegedly discriminatory ie being a member of the Civil Service at Deputy Secretary grade or its equivalent. This competition was advertised throughout the United Kingdom and in the Republic of Ireland. Very little by way of relevant statistical evidence was put before the Tribunal. However the Tribunal is entitled to take into account a more general picture than is demonstrated by statistics placed in evidence: British Airways plc v Starmer [2005] IRLR 862.

3. Here the claimant contends that the provision criterion or practice, which she says was applied by the panel, allows the shortlisting only of a Deputy Secretary grade civil servant. It therefore excludes from interview everyone else in the workforce who otherwise satisfies the eligibility criteria, throughout Great Britain and the Republic of Ireland. Whilst there may be a gender and religious imbalance within the Deputy Secretary grade of the Civil Service, no one outside that grade (comprising therefore of 100% of all those men, woman, Catholics, Protestants who were eligible to apply but were not a Deputy Secretary grade in the Civil Service) could be appointed. It therefore appears to the Tribunal that on the balance of probabilities the application of the provision criterion or practice causes no particular disadvantage in the appropriate pool.

3. For these reasons the Tribunal determines that the claimant was not discriminated against by the respondent on the grounds of sex or religious belief and the claim is dismissed accordingly.

Chairman:

Date and Place off hearing: 16-19 February and 27 February 2009, Belfast

Date decision recorded in register and issued to parties: