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Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> McMaster v The Governing Body of Northern... [2010] NIFET 00010_08FET (17 February 2010)
URL: http://www.bailii.org/nie/cases/NIFET/2010/00010_08FET.html
Cite as: [2010] NIFET 00010_08FET, [2010] NIFET 10_8FET
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FAIR EMPLOYMENT TRIBUNAL
CASE REF: 00010/08FET
CLAIMANT: Ian McMaster
RESPONDENT: The Governing Body of Northern Regional College
Constitution of Tribunal:
Chairman: Mr B Greene
Panel Members: Mrs C Lewis
Mrs J McCormick
Appearances:
The claimant appeared in person.
The respondent was represented by Mr Paul Rodgers, of counsel, instructed by Judith Blair, Employment Law Solicitors.
DECISION
The Fair Employment Tribunal unanimously dismisses the claimant’s claim for discrimination on the grounds of religion.
SOURCES OF EVIDENCE
1. The Fair Employment Tribunal heard evidence from the claimant. It also heard evidence on behalf of the respondent from Trevor Neilands, William Bell, Brenda Crotty, Tom Knox, Ian Houston, Barbara Laverty and Judith Blair, solicitor. The Tribunal also received eight bundles of agreed documents amounting to 1,064 pages, the statutory questionnaire and answers and nine Records of Proceedings of Case Management Discussions from 16 April 2008 until 29 July 2009.
THE CLAIM AND DEFENCE
2. The claimant claimed discrimination on the basis of his religious belief. He attempted during the hearing to widen it to political opinion. The Tribunal found that there was no claim for political opinion and in the absence of an application to add that claim, the claimant proceeded on the ground of religious discrimination only. The respondent denied the claimant’s allegations of discrimination and asserted in relation to the claim of religious discrimination that the claimant had not satisfied the requirements of the Statutory Grievance Procedure. The latter line of defence did not appear in the respondent’s response but followed a successful application by the respondent to amend its response to add the claim, such application to amend being agreed by the claimant.
THE ISSUES
Factual
3. (1) Was the claimant better qualified than the successful candidate in respect of essential criterion number 2 (“have had experience of managing programme teams including administrative, developmental and organisational aspects in the last three years”)?
(2) Was the claimant better qualified than the successful candidate in respect of essential criterion number 3 (“have knowledge and experience in the curriculum area of engineering, and the applications of new technology and engineering”)?
(3) Was the claimant better qualified than the successful candidate in respect of essential criterion number 4 (“possess a sound knowledge of the changing patterns of education and training, the range and nature of qualifications and delivery methods”)?
(4) Was the claimant better qualified than the successful candidate in respect of desirable criterion number 2 (“be able to demonstrate awareness of key managerial issues and how they should be approached”)?
(5) Was the claimant better qualified than the successful candidate in respect of each of “personal attributes” numbered (a) to (d)?:-
(a) demonstrate initiative and ability to work unsupervised;
(b) be flexible, adaptable and resourceful;
(c) approachable and good motivator of people;
(d) have effective staff leadership, communications, interpersonal and team building skills?
(6) Was the claimant equally as well qualified as the successful candidate in relation to essential criterion number 1 (“recognised by DEL to teach in a FHE College”)?
(7) Was the claimant equally as well qualified as the successful candidate in relation to desirable criterion number 1 (“have practical experience of current CAD/CAM developments”)?
(8) Did the claimant perform better at interview than the successful candidate in relation to all or any of the aforementioned criteria and attributes?
Legal
4. (1) If the claimant was treated less favourably than the successful candidate in relation to the arrangements made in respect of the recruitment for the position of temporary senior lecturer, does such treatment amount to unlawful discrimination on the ground of the claimant’s religion.
(2) Has the claimant complied with the Statutory Grievance Procedure?
(3) Is the respondent entitled to costs against the claimant on the ground that the bringing of the proceedings by the claimant has been misconceived?
(4) If the respondent is not entitled to costs of the hearing is it entitled to costs of the adjournment for one day, sought and obtained by the claimant, during the hearing to enable the claimant to consult a solicitor?
FINDINGS OF FACT
5. (1) The claimant is a member of the Protestant community and is a lecturer in the Engineering Department of the respondent college. He has been in employment with the respondent and its predecessors since 4 September 1975.
(2) In September 2007 the respondent conducted a competition for a temporary senior lecturer post in the Engineering Department.
(3) The claimant and two other candidates Patrick Wallace (Catholic) and David Childs (Protestant) applied for the post.
(4) All three candidates were listed for interview.
(5) Following shortlisting on 11 September 2007 the successful candidate was to be chosen on the basis of performance at the interview on 21 September 2007.
(6) At the interview on 21 September 2007 each candidate had to make a presentation. The presentation was required to be sent by e-mail by 5.00pm on 20 September 2007.
(7) The claimant’s presentation did not arrive because he sent it to the wrong e-mail address. Although a failure message was sent to his computer he did not become aware of it.
(8) On 21 September 2007 the interviews were scheduled for 9.30am for Patrick Wallace, 10.15am for David Childs and 11.00am for the claimant.
(9) The interview panel comprised William Bell (Protestant), who was Head of School, Brenda Crotty (Protestant), Deputy Director of the respondent college and Tom Knox (Catholic) a Head of Department in Antrim Technical College before it merged with the other colleges to form the respondent.
The Panel was assisted by Alison Anderson (Protestant), formerly Head of HR at the respondent college, who organised the recruitment competition and provided administrative support, including to the Panel. She attended the interviews to provide advice to the Panel and made notes of each of the interviews.
(10) Alison Anderson informed the Panel between 9.15am and 9.30am on 21 September 2007 that the claimant had not submitted his presentation. The Panel was unsure whether the claimant was intending to participate in the interviews and decided to leave off any decision until 11.00am, the time of his interview.
(11) The claimant arrived for the interview around 10.50am and was passed by Alison Anderson on route to the interview room.
(12) The claimant was only made aware that his presentation had not been received when he attended before the Panel. The claimant insisted that he had sent it by e-mail. A break was then taken to investigate if the e-mail had not been received through some fault of the respondent.
(13) The respondent’s IT staff investigated and ascertained that the claimant had sent a presentation but had made a mistake in the e-mail address by the omission of two letters.
(14) The Panel then advised the claimant of the findings of the IT staff which the claimant accepted. The claimant was asked to leave while the Panel considered the matter further. The Panel agreed to allow the interview to proceed providing the claimant forwarded the presentation and the interview proceeded within a further short period.
(15) The claimant was invited back before the Panel and asked if he wished to proceed with the interview. He answered in the affirmative. He was given time to send the presentation by e-mail and to compose himself.
(16) The interview began at 12.30pm and the claimant considered that he was not properly composed for the interview by reason of the events of the morning. He believes this adversely affected his performance.
(17) The Panel concluded the interviews and each interviewer had to rank the candidates on the basis of performance in answering the questions and in making the presentation. The unanimous ranking of the Panel was Patrick Wallace first, David Childs second and the claimant third. The second and third candidates were deemed not suitable for appointment.
(18) The candidates were informed of the outcome on 24 September 2007 by Alison Anderson.
(19) On 24 September 2007 the claimant wrote to Trevor Neilands, Director of the respondent college, to complain about the recruitment exercise. He made a number of specific complaints that;
(a) he was concerned about the conduct of his interview on 21 September 2007,
(b) he was disadvantaged during the interview process,
(c) he had been confronted about the non-receipt of his presentation at the start of the interview,
(d) it was incumbent on the college to check why his presentation had not been received by 5.00pm on 20 September 2007 or why it had not been sent,
(e) there was ample time to check with him about his presentation prior to the interview process,
(f) someone should have contacted him prior to the interview process about his missing presentation as he had confirmed his attendance,
(g) electronic communications may not always be 100% reliable,
(h) he had been seriously disadvantaged by the way the process was conducted, and
(i) consideration be given as to whether the whole process was valid as his treatment was considerably different to the other candidates.
(20) Trevor Neilands appointed Ian Houston to deal with the claimant’s grievance and he met with the claimant on 11 October 2007.
(21) The grievance meeting considered the grievance as set out in the claimant’s letter of 24 September 2007. The claimant submitted a written document to Ian Houston. The document rehearsed the complaints as set out in the claimant’s letter of 24 September 2007. A little bit more detail was given of his complaints. It raised a new complaint of having to leave the interview room on a number of occasions which was extremely upsetting.
As part of the investigation of the grievance Mr Houston also met Brenda Crotty and Alison Anderson together.
(22) On 18 October 2007 Ian Houston wrote to the claimant informing him that he did not uphold his grievance and gave his reasons. Essentially he found that the respondent had acted properly; that the responsibility was on the claimant to ensure his presentation had arrived by the required time; that if he were unsettled it arose because of his failure to ensure the presentation had arrived by the deadline; and that the interview panel had acted appropriately in handling the interview process.
(23) The claimant appealed against Mr Houston’s decision on 26 October 2007 because he found the decision unsatisfactory. He sought some further information about the timings of the interview panel’s knowledge of when his presentation had arrived and why he had not been informed before 11.00am on 21 September 2007 that his presentation had not arrived. He challenged the conclusion of Mr Houston and asserted that he had been severely disadvantaged by the way the whole process was conducted; that he doubted whether the whole process was valid; and that his treatment was considerably different to the other candidates.
(24) Trevor Neilands heard the claimant’s appeal on 29 November 2007. He considered the findings and conclusions of Mr Houston, the contents of the claimant’s letter of appeal and his comments at the appeal meeting.
(25) On 12 December 2007 Trevor Neilands wrote to the claimant rejecting his appeal, affirming Mr Houston’s decision and reasoning, dealing with the questions the claimant had raised in his appeal letter and making a finding that the process was valid.
(26) The claimant presented his claim form to the Office of the Tribunals on 20 December 2007. In his claim form he repeated his complaints as set out in his grievance letter. He also complained of discrimination on the ground of his religious belief. He further stated that he had grieved about his claim on 24 September 2007.
(27) Nine Case Management Discussions were arranged to prepare the claim for hearing. Issues were identified and it was agreed to use witness statements.
(28) At the hearing the claimant relied on the complaints as set out in his claim form. He added a number of additional matters;-
(a) That Brenda Crotty was not an appropriate person to sit on the interview panel because her background was not in engineering and she could therefore not assess those answers on engineering matters. Later during the hearing the claimant withdrew this allegation.
(b) That there had been a history of discrimination against him going back to the 1980s associated with personnel within the college. The claimant did not identify any particular person in this historical discrimination. He also withdrew this allegation as a matter for consideration by the Tribunal as he was pursuing this matter elsewhere.
(c) That Brenda Crotty had accused him of being involved in the Harryville protest preventing Catholics from attending church. The claimant was indignant at this accusation. Brenda Crotty had no recollection of the incident and asserted she would not have made such a comment.
(d) That question 6 in the interview discriminated against him as his experience of liaising with industry, though extensive, was not within the previous three years as required by the question. He believed the question was deliberately so formulated by William Bell and Alison Anderson.
(e) That he challenged the scorings of two of the interviewers, William Bell and Brenda Crotty. He relied on a fuller record of his answers in the notes of Alison Anderson in support of this criticism.
(f) That he specifically exonerated Tom Knox from any religious discrimination.
(29) In its application for costs the respondent accepts the cap of £10,000 as the limit the Fair Employment Tribunal can award. The solicitor’s costs are £28,250, inclusive of VAT and counsel’s fees are £17,688.60, inclusive of VAT.
(30) On 26 November 2009 the Tribunal adjourned at 12.45pm until 1.25pm on 27 November 2009 to enable the claimant to obtain legal advice. Following the legal advice the claim proceeded.
(31) The financial loss suffered by the claimant by reason of not being appointed to the post of temporary senior lecture was £551.45.
THE LAW
6. (1) It is unlawful to discriminate against another on the grounds of religion (Article 3(7) Fair Employment and Treatment (Northern Ireland) Order 1998).
(2) Discrimination on the grounds of religion is to treat someone less favourably than another on the ground of religion (Article 3(2)(a) Fair Employment and Treatment (Northern Ireland) Order 1998).
(3) It is for the claimant who complains of discrimination on the grounds of religion 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 (III) or which by virtue of Article 35 or 36 of the Fair Employment and Treatment (Northern Ireland) Order 1998 is to be treated as having committed such an act of discrimination against the claimant (Article 38 Fair Employment and Treatment (Northern Ireland) Order 1998).
(4) The Northern Ireland Court of Appeal in McDonagh & Others –v- Samuel John Hamilton Thom t/a The Royal Hotel Dungannon [2007] NICA 3 stated that when considering claims of discrimination, Tribunals must have regard to the burden of proof. The correct approach to the burden of proof in all discrimination claims is that set out in the Annex to the decision of the English Court of Appeal in Igen –v- Wong [2005] 3 All ER 812.
In the McDonagh case the Northern Ireland Court of Appeal recommended the Tribunals adhere closely to the guidance in Igen.
The guidance set out in the Annex to the Igen case is:-
“(1) Pursuant to section 63 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 by virtue of section 41 or section 42 of the SDA is to be treated as having been committed against the claimant. These are referred to 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 sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that ‘he or she would not have fitted in’.
(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually 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 section 63A (2). At this stage the Tribunal does not have to reach a definitive 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.
(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s74 (2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within s74 (2) of the SDA.
(8) Likewise, the Tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to section s56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.
(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the grounds of sex, then the burden of proof moves to the respondent.
(10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.
(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since ‘no discrimination whatsoever’ is compatible with the Burden of Proof Directive.
(12) That requires a Tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.
(13) Since the facts necessary to prove an explanation would normally be in possession of the respondent, a Tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.”
(5) In the McDonagh case Kerr LCJ, as he then was, stated that the first question to be addressed is has the claimant proved, on the balance of probabilities, facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed the act of discrimination. He went on to say;-
“In addressing this question, it would be necessary for the judge to bear a number of ancillary matters in mind. First, that it is unusual to find evidence of discrimination. Secondly, that the conclusion on the preliminary issue will usually be a matter of inference to be drawn from the primary facts. Thirdly, it must be clearly understood that the plaintiffs do not have to discharge a final burden, merely whether on the facts as found, it is possible to draw the inference of discrimination and finally it must be assumed at this stage that no adequate explanation for the discrimination exists.”
(6) The application of the burden of proof was also considered in Madarassy –v- Nomura International PLC [2007] EWCA CIV 33. In that case Mummery LJ, who gave the decision of the English Court of Appeal, stated in paragraph 52;-
“She [Madarassy] only has to prove facts from which the Tribunal “could” conclude that there has been unlawful discrimination by Nomura, in other words she has set up a “prima facie” case.”
At paragraph 56 he stated:-
“The court in Igen –v- Wong expressly rejected the argument that it was sufficient for the complainants simply to prove facts for 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 has committed an unlawful act of discrimination.”
The learned Lord Justice elaborated on “could conclude” at paragraphs 57 and 58:-
“could conclude” in section 63 A(2) must mean that “a reasonable Tribunal could properly conclude” from all the evidence before it. This will 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. Subject only to the statutory “absence of an adequate explanation” at this stage…., the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the claimant were of like with like as required by section 5(3) of the 1975 Act; and the available evidence of the reasons for the differential treatment.
The absence of an adequate explanation for differential treatment of the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent.”
Further clarification was given by Mummery LJ at paragraph 71:-
“Section 63A(2) does not expressly or impliedly prevent the Tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant’s evidence of discrimination. The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the claimant or the situations with which the comparisons are made are not truly like the complainant or the situation of the complainant; or that even if there has been less favourable treatment of the complainant, it is not on the grounds of her sex or pregnancy.”
(7) In the recent decision of the Court of Appeal in Kevin Curley –v- the Chief Constable of the Police Service of Northern Ireland and Superintendent Middleless [2009] NICA 8 Coghlin LJ commented further on shifting the burden of proof in discrimination claims and stated as follows;-
“However, this court would wish to emphasis the need for a Tribunal engaged in determining this type of case to keep firmly in mind the fact that the claim is founded upon an allegation of religious discrimination. The need to retain such a focus is particularly important when considering the potential application of the provisions of Article 38 of the 1998 Order.”
(8) The Northern Ireland Court of Appeal in Nelson v Newry & Mourne District Council [2009] NICA 24 cited with approval the comments of Elias J in Laing v Manchester City [2006 IRLR 748 when he stated;
“74 The focus of the Tribunal analysis must at all times be the question whether or not they can properly and fairly infer race discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination that is the end of the matter. It is not improper for a Tribunal to say in effect “there is a nice question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race.”
(9) To succeed in a claim for discrimination on the ground of religious belief a claimant must show that the respondent treated him less favourably than he treated or would treat other persons on the ground of religious belief.
In comparing the cases of persons of different religious belief the relevant circumstances in the one must be the same or not materially different from the other.
(10) In Nagarajan -v- London Regional Transport [1999] ICR 877, 884 Lord Nicholls said;-
“…Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.”
(11) The decided cases indicate that it is usual, in assessing whether discrimination has been proved on prescribed grounds, for Tribunals to rely on inferences and deductions from facts found because it is unusual for direct evidence of discrimination to be available.
(12) In RUC Chief Constable –v- A [2000] NI 261 at page 277a Carswell LCJ, as he then was, commented on discrimination of co-religionists in the following terms;-
“…This is on its face so extraordinary a proposition that one must look for some evidence to support it or some compelling evidence why it might be accepted…”
(13) In the Curley case Coghlin LJ referred to the Sergeant A case and to a statement made by Carswell LCJ at page 273:-
“[3] Discrepancies in evidence, weaknesses in procedures, poor record keeping, failure to follow established administrative processes or unsatisfactory explanations from an employer may all constitute material from which an inference of religious discrimination may legitimately be drawn. But Tribunals should be on their guard against the tendency to assume that every such matter points towards a conclusion of religious discrimination especially where other evidence shows that such a conclusion is improbable on the facts.”
(14) An employee who makes a claim to the Fair Employment Tribunal for religious discrimination is required to lodge a written grievance with his employer 28 days before presenting his claim form (Article 20 The Employment (Northern Ireland) Order 2003 and Regulation 6(1) Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 and Schedule 1, part 2, paragraph 6 The Employment (Northern Ireland) Order 2003).
(15) Grievance means a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him (Regulation 2(1) The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004).
(16) The Court of Appeal in Suffolk Mental Health Partnership NHS Trust v Hurst and Others [2009] EWCA Civ 309 considered the requirements of the Statutory Grievance Procedure. It reviewed the law in earlier cases and abstracted principles from earlier cases which it stated as follows;-
(a) “… the statutory requirements, we are satisfied, are minimal in terms of what is required. It is simply that the grievance must be set out in writing … the original setting out of the grievance itself does not require to be so particularised.” (Paragraph 53)
(b) “The grievance in question must relate to the subsequent claim and the claim must relate to the earlier grievance, if the relevant statutory provision is to be complied with.” (The correlation principle) (Paragraph 56)
(c) “The correlation to be looked for is whether underlying the claim presented to the tribunal is essentially the same grievance as was earlier communicated.” (Paragraph 56)
(17) The Fair Employment Tribunal may make an order for costs (Regulation 34(1), Schedule 1, the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005).
(18) The Fair Employment Tribunal shall consider making an order for costs where the bringing of the proceedings has been misconceived. (Regulation 35(3), Schedule 1, the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005).
(19) The maximum amount of costs that the Fair Employment Tribunal can order is £10,000. If a party is seeking costs in excess of that the quantum needs to be assessed by the County Court (Regulation 36, Schedule 1 of The Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005).
(20) Misconceived includes having no reasonable prospect of success (Regulation 2(1) of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005).
(21) Misconceived seems to require an objective test relating solely to the substance of the case as pleaded and presented. However, as misconceived applies also to the bringing and conducting of the proceedings it suggests factors other than a purely objective appraisal of the case can and perhaps should be taken into account before making an award of costs (Harvey on Industrial Relations and Employment Law T[1059]).
(22) The Tribunal has a discretion whether or not to award costs on the misconceived ground if it considers that in all the circumstances the award of costs is inappropriate (Harvey on Industrial Relations and Employment Law T[1060]).
(23) The changing of the burden of proof is a recognitation of the difficulty faced by a claimant. In the case of Wilkinson v Belfast City Council (Case Ref: 423/04FET and 202/05FET) at paragraph 3 the Tribunal recorded;-
“Before embarking on our consideration of the respective claims for costs, we remind ourselves that despite the now extensive provisions in relations to costs tribunals remain largely a costs free zone and that an award of costs is very much the exception rather than the rule as is emphasised by the limited circumstances in which costs may be awarded and the case law in this area. We also bear in mind that the tribunal should be slow to award costs against an unsuccessful claimant in a discrimination case given that it remains difficult to prove discrimination particularly in the absence of direct evidence. …”
(24) The Tribunal also had regard to the well known statement from the case of ET Marler v Robertson [1974] ICR NICR where Sir Hugh Griffiths stated;-
“Ordinary experience of life frequently teaches us that what is plain for us all to see once the dust of battle has subsided was far from clear to the combatants once they took up arms.”
APPLICATION OF THE LAW AND FINDINGS OF FACT TO THE ISSUES
Statutory Grievance Procedure
7. (1) A claim for religious discrimination requires a grievance to be presented under the Statutory Grievance Procedure.
(2) The claimant’s grievance letter of 24 September 2007 does not raise specifically a complaint of religious discrimination. Neither does it, on a reasonable reading of the letter, convey to the reader that he is seeking to make a complaint of religious discrimination.
(3) Religious discrimination is not mentioned in the document which he presented to Ian Houston at the grievance meeting on 11 October 2007. Nor, on a reasonable reading of the document, does it convey a claim for religious discrimination.
(4) The Tribunal is satisfied that at the grievance meeting on 11 October 2007 the claimant did not raise a complaint of religious discrimination, nor did what he said convey on a reasonable interpretation, that he was making such a claim. In so concluding the Fair Employment Tribunal had regard to the following matters;-
(a) Ian Houston denied any allegation of religious discrimination was made overtly or could be inferred.
(b) The claimant does not challenge that religious discrimination was not raised as a complaint.
(c) The claimant relies on phrases like “severely disadvantaged” or his treatment was “considerably different to the other candidates”, as conveying a claim for religious discrimination.
(d) The Fair Employment Tribunal does not accept that, a reasonable reading and understanding of the phrases, “severely disadvantaged” or receiving treatment that was “considerably different to the other candidates”, conveys or would convey information that the claimant was making a complaint about religious discrimination.
(e) To be severely disadvantaged could arise from unlawful discrimination on various grounds for example sex, sexual orientation, race, disability, or age or it could arise from discrimination that is not unlawful or other lawful reasons. A similar analysis can be made of treatment that was “considerably different to other candidates”.
(5) At the grievance appeal hearing before Trevor Neilands on 29 November 2007 the claimant made the same claims. The Fair Employment Tribunal is not persuaded that a claim of religious discrimination was raised specifically or could be inferred. In so concluding the Tribunal had regard to the following matters;-
(a) Trevor Neilands denied any allegation of religious discrimination was made overtly or could be inferred.
(b) The claimant does not challenge that religious discrimination was not raised as a complaint.
(c) The claimant relies on the phrases like “severely disadvantaged” or his treatment was “considerably different to other candidates” as conveying a claim for religious discrimination.
(d) The Fair Employment Tribunal does not accept that a reasonable reading and understanding of the phrases “severely disadvantaged” or receiving treatment that was “considerably different to the other candidates” conveys or would convey the information that the claimant was making a complaint about religious discrimination.
(e) To be severely disadvantaged could arise from unlawful discrimination on various grounds for example sex, sexual orientation, race, disability or age or could arise from discrimination that is not unlawful or other lawful reasons. A similar analysis can be made of treatment that was “considerably different to other candidates”.
(6) The claimant does not seek to rely on any other document or meeting to support his assertion that he raised the issue of religious discrimination overtly or by inference.
(7) The first mention of a claim for religious discrimination is in his claim form on 20 December 2007.
(8) The claimant therefore has not satisfied the requirements of the Statutory Grievance Procedure. The Fair Employment Tribunal had regard to the following matters in so concluding;-
(a) In his letter of grievance of 24 September 2007, in his document presented to Ian Houston on 11 October 2007, at the grievance meeting on 11 October 2007, in his letter of appeal of 26 October 2007 to Trevor Neilands and at the grievance appeal hearing on 29 November 2007 the claimant did not specifically raise a claim of religious discrimination.
(b) Nor do the words used throughout by the claimant that he was “severely disadvantaged” or his treatment was “considerably different to the other candidates” convey that he was making a claim of religious discrimination on a reasonable understanding of those words.
(c) There is a claim of religious discrimination in his claim form on 20 December 2007.
(d) The claimant has failed the correlation principle i.e. that the claim in the grievance and the claim form are not in their essence the same.
(9) The Fair Employment Tribunal therefore cannot consider a claim where;-
(a) the use of the statutory grievance is required, and
(b) the complainant does not use it to make his complaint of religious discrimination and
(c) the complainant cannot benefit from any of the statutory exceptions, to explain not using the statutory grievance procedure to make a complaint of religious discrimination.
(10) Accordingly, the claimant’s claim of religious discrimination is dismissed.
Religious Discrimination
(11) The respondent has urged the Fair Employment Tribunal strongly to comment on the merits of the claim of religious discrimination. While any comments or observations the Fair Employment Tribunal makes are obiter we believe such comments may be of assistance to the parties. We therefore set out our observations below.
(12) The Fair Employment Tribunal is of the view that the claimant would face insurmountable obstacles in establishing a prima facia case of religious discrimination. In so observing we refer to the following matters;-
(a) the claimant could establish a difference in status between himself and his comparator, Patrick Wallace.
(b) Likewise the claimant could establish a difference in treatment i.e. Patrick Wallace was appointed as temporary senior lecturer whereas the claimant was not.
(c) The claimant faces considerable difficulties in establishing less favourable treatment. A number of factors give rise to this problem;-
(i) No criticism is directed at one of the interviewers Tom Knox.
(ii) The criticism of the scorings was not persuasive. While the claimant disagreed with some of the markings he was unable to adduce persuasive evidence that his scorings were too low or Patrick Wallace’s were too high.
(iii) The differing records of the claimant’s responses at the interview could be explained and were explained by the interviewers recording only what they considered relevant.
(iv) The interviewers were unanimous in their ranking of the candidates. There was not any evidence or indeed even an allegation of collusion in the markings.
(v) Tom Knox is specifically exonerated by the claimant from carrying out any religious discrimination against the claimant yet his rankings are the same as the other two interviewers.
(vi) Throughout the hearing the claimant asserted he did not do a good interview because of the events of the morning of interview which may well account for his performance at the interview not being as good as he believed it would be.
(vii) The particular criticisms raised by the claimant about the interview process and procedure cannot amount to less favourable treatment. The respondent offered persuasive reasons for the procedure they followed and the Fair Employment Tribunal accepts that the room for manoeuvre was limited by reason of the needs of running a fair competition. In addition the root cause of the problem at the interview process was the claimant’s failure to send his presentation in time to the correct address. He was sent within seconds a note that his presentation had not been delivered but he did not notice that. Nor did he take any steps to ascertain if his presentation had arrived, despite his assertion that electronic communications are not always reliable.
(viii) The suggestion that the claimant makes of informing him that his presentation had not arrived by 5.00 pm on 20 September 2007, at any time up to the time of the interview, while possible, would expose the respondent to challenges that it had treated less favourably the other two candidates. The claimant’s criticisms of the respondent on these points are not persuasive.
(ix) The respondent offered a reasonable explanation for the limiting of current experience with industry to three years in relation to question 6. In addition its witnesses gave evidence of ways open to the claimant to enable him to maintain his liaison with industry even if he had a busy teaching schedule. The claimant did not avail of these opportunities.
(d) Likewise the claimant faces considerable difficulties in establishing the ground of religious discrimination as the reason for the less favourable treatment alleged. In so observing the Fair Employment Tribunal had regard to the following matters;-
(i) There was not any overt evidence of religious discrimination which in itself is not unusual.
(ii) The Harryville incident which could be a piece of evidence in inferring religious discrimination is not strong. The evidence itself is disputed. It is one incident which allegedly happened three or four years before the interview process. There is a total absence of any further difficulties between Brenda Crotty and the claimant that could amount to religious discrimination between the Harryville incident and the interview process.
(iii) A major hurdle is the religion of the interviewers that the claimant criticises. Both are co-religionists of the claimant. There was not any compelling evidence, indeed no evidence to reveal why the co-religionists (Brenda Crotty and William Bell) would discriminate against a co-religionist (the claimant).
(iv) The claimant’s own explanation that his performance at the interview was not good because the events of the morning of the interview caused him to lose his composure and not to do himself justice.
(v) Part of his criticism of the process relates to Alison Anderson who is also a co-religionist. There is not any evidence of religious discrimination being practiced by her or a compelling reason to conclude she would discriminate against a co-religionist.
(13) Even if the Tribunal were wrong and a prima facia case of religious discrimination were present there is an adequate explanation for the outcome of the recruitment competition, free from any taint of discrimination. That explanation is that the successful candidate performed better at the interview. That conclusion is supported by the evidence of fuller and better responses to the questions posed at the interview and the claimant’s own belief that he did not perform well at the interview by reason of the events of the morning of the interview, which arose from the claimant’s own failure.
Costs
(14) The Fair Employment Tribunal has considered carefully the matters put before it in the costs application, the applicable law and the submissions of the parties. It has concluded that it will refuse the respondent’s application for costs of the hearing to a maximum of £10,000. In so concluding the Tribunal had regard to the following matters;-
(a) the award of costs is discretionary and not punitive.
(b) As stated by Sir Hugh Griffiths in Marler v Robertson, “Ordinary experience of life frequently teaches us that what is plain for us all to see once the dust of battle has subsided was far from clear to the combatants once they took up arms.”
(c) The warning of the English Court of Appeal in the case of Igen v Wong at paragraph 3 of the annex where it stated;-
“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 sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases discrimination will not be an intention but merely based on the assumption that he or she would not have fitted in.”
(d) Lord Nicholl commented in Nagarajan v London Regional Transport as follows;-
“… Treatment, favourable or unfavourable, is a consequence flow from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds that the decision will have to be deduced, or inferred, from the surrounding circumstances.”
(e) The failure to achieve the evidential requirement of shifting the burden in a discrimination case is significantly different to a successful application for a direction in the civil courts. In a civil case where there is a successful application for a direction the defendant’s evidence will not have been heard whereas in a discrimination claim all the evidence has been heard.
(f) Given that discrimination is often only established by inferences drawn from the primary facts as found it would not have been clear to the claimant at the outset or indeed during the process of the hearing that his claim for religious discrimination was misconceived.
(g) Having seen and heard from the claimant for three weeks the Tribunal is persuaded that the claimant from the outset was absolutely convinced that he had been a victim of religious discrimination and that conviction remained with him to the conclusion of the claim.
(15) However, the Fair Employment Tribunal is persuaded that the respondent is entitled to costs for a day’s adjournment granted to enable the claimant to obtain legal advice. On his return to the Tribunal there was no obvious difference in the way the case was conducted by the claimant. Nor did the claimant submit to the Tribunal that having taken legal advice his presentation of the claim was changed or modified or in anyway improved or suggested that there was any benefit to the Tribunal for having permitted a day to enable that to have taken place. The records of proceedings record that the claimant had been urged on a number of occasions to seek legal advice.
The Tribunal measures the costs of the day at £1,581.25 (£431.25 for the respondent’s solicitor and £1,150 for counsel). The Tribunal orders that the claimant pay these costs to the respondent.
Chairman:
Date and place of hearing: 23, 24, 25, 26, 27, 30 November 2009, 1, 2, 3, 4, 7, 8, 9, 10, and 11 December 2009 at Belfast.
Date decision recorded in register and issued to parties: