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Fair Employment Tribunal Northern Ireland Decisions

You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Brudell v Board of Governors, Ballykelly... [2010] NIFET 161_09FET (30 June 2010)
URL: http://www.bailii.org/nie/cases/NIFET/2010/161_09FET.html
Cite as: [2010] NIFET 161_09FET, [2010] NIFET 161_9FET

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FAIR EMPLOYMENT TRIBUNAL

CASE REF: 161/09 FET

CLAIMANT: Julie Brudell

RESPONDENTS: 1. Board of Governors, Ballykelly Primary School

2. Western Education & Library Board

DECISION

The unanimous decision of the Tribunal is:-

(i) the Tribunal makes a declaration that the claimant has suffered an act of discrimination on the ground of religious belief; and

(ii) it awards her the sum of £8,250 by way of compensation.

Constitution of Tribunal:

Chairman: Mr D Buchanan

Members: Mrs J McCormick

Mr R Gourley

Appearances:

The claimant was represented by Mr M Wolfe, Barrister-at-Law, instructed by Equality Commission for Northern Ireland.

The respondents were represented by Ms A Finnegan, Barrister-at-Law, instructed by Education & Library Board’s Legal Service.

1.	(i)	The claimant, Ms Julie Brudell, is a teacher at Ballykelly Primary School (PS), County Londonderry. The first-named respondent is her employer, and the second-named respondent, the Western Education & Library Board (WELB), is the appropriate employing authority for teachers in her geographical area.

	(ii)	She alleges that she was subjected to unlawful discrimination on the ground of her religious belief following a redundancy selection exercise which was carried out in Ballykelly PS in early 2009. She alleges both direct and indirect discrimination. At a Case Management Discussion on 2 December 2009 the legal and factual issues in this case were agreed by the parties. A copy of the Record of Proceedings of that Case Management Discussion is set out at an annex to this decision. The claimant alleges that both respondents are jointly liable for any discrimination she suffered. Her claim is limited to compensation for injury to feelings.

	(iii)	In order to determine this matter the Tribunal heard evidence from Ms Brudell and from Ms Jennifer Campbell (Principal of the D H Christie Memorial School, Coleraine), Mr Mike Graves (Senior Field Officer, Ulster Teachers’ Union), Father Raymond McCullagh (Lecturer in Religious Education, the University of Ulster at Coleraine) and Mrs Mary Brown (formerly a teacher at Ballykelly PS) on her behalf. It heard evidence from the following on behalf of the respondents – Miss Helen McNicholl, a former Vice-Principal of Ballykelly PS, and a member of its Board of Governors; Reverend Mr Harold Given, also a member of the Board of Governors; Mr Peter Jack, Chairman of the Board of Governors; Mrs Mary Ferris of the Human Resources Department, WELB; Ms Rena Brady, Senior Executive Officer in the Diocesan Office in the Diocese of Down and Connor; Mrs Lee Brown, Acting Principal, Ballykelly PS; Mr Ken McCaughey, Principal of Ballykelly PS and Secretary to the Board of Governors (currently on secondment to the Regional Teachers’ Unit). Additionally, the Tribunal had regard to documentary evidence to which it was referred by the parties. It finds the facts set out in the following paragraphs.

2.	(i)	The claimant is an infant teacher with over 25 years experience. She started teaching in Ballykelly PS on 1 September 1994, and at the time of her redundancy was a P3 teacher, as she mostly had been throughout her career.

	(ii)	She was made redundant on 31 August 2009. Formal notice of redundancy had been served on her on 31 March 2009. At that time she was offered one day’s teaching per week in the school’s nursery unit. Ultimately, following a successful appeal against her redundancy, she was redeployed in the school‘s nursery unit when a permanent post became available there. That was a post which she accepted under protest.

	(iii)	The claimant is a Protestant. She was made redundant along with three other Protestant teachers. The staff and pupils of the school were mixed in terms of religion. No Roman Catholic member of the teaching staff was made redundant at the same time. These included three Roman Catholic teachers, ‘E’, ‘N’ and ‘R’ who had less service than the claimant. It was in those circumstances that her complaint of unlawful discrimination on the ground of religious belief was made to the Tribunal.

	(iv)	We set out, firstly, some brief details of the history of the school and its ethos, which form part of the backdrop to the redundancy exercise, and then deal with the circumstances leading to the redundancy exercise involving the claimant.

3.	(i)	Legally, the status of Ballykelly PS is that of a controlled school under the Education and Libraries (Northern Ireland) Order 1986. However, the school has always admitted pupils from both sections of the community and has a mixed teaching staff, though it is not formally an integrated school. In the respondents’ replies to the claimant’s statutory questionnaire it is described as ‘to all intents and purposes a community school’. It is accepted by the respondents that ‘community school’ is not a recognised legal status under the Education Orders. The replies continue : ‘while Ballykelly PS has controlled status its ethos is substantially different from that of other controlled schools. The school was established as a result of the amalgamation of those schools which catered for Presbyterian, Church of Ireland and Roman Catholic children and therefore it is a community school which meet [sic] the needs of all pupils from various faiths and backgrounds’.

	(ii)	This emphasis on the different religious backgrounds of pupils is reflected in both its Mission Statement and its school development plan.

	(iii)	It is also reflected in the arrangements for the delivery of religious education in the school. Ballykelly has traditionally delivered religious education (RE) to its Roman Catholic pupils by separating them from their Protestant classmates for that purpose. Protestant children were taught RE using the core syllabus prepared by the four main churches. There was additional denominational education for Roman Catholic children in the senior school. The whole school, or in some instances, the junior school, assembled together for non- denominational RE on other occasions. School management took the view that these arrangements conformed to Article 21(7) of the Education and Libraries (Northern Ireland) Order 1986 which makes specific provision for denominational religious education in controlled and voluntary schools.

	(iv)	It is clear that Roman Catholic religious education was always delivered to Roman Catholic pupils by Roman Catholic teachers. This was based not just on an underlying assumption that those Roman Catholic teachers were the persons qualified to teach it, but also on the basis that they were the appropriate persons to teach it. Miss McNicholl, a former Vice-Principal and present Governor of the school, who had given long and distinguished service to it, said in evidence that ‘you have to believe in what you are teaching’, in the sense that Catholic teachers were adherents of, and sympathetic to, the Catholic faith and the spiritual needs of the children. These assumptions figured largely in the redundancy exercise with which we are here concerned.

4.	(i)	In addition to attracting children from both communities in the local area, the school had, until recently, enrolled large numbers of service children – originally, from the married quarters attached to Royal Air Force Ballykelly, and latterly, from the 1970s, from Shackleton Barracks, when the RAF station passed to Army use and was re-named. A school inspection report of May 2007 put the proportion of service children attending the school at 40% of its total enrolment.

	(ii)	There had been previous redundancy exercises as a result of falling rolls but it was the rundown and subsequent closure in 2008 of the Ballykelly garrison which led to the steepest reduction in pupil numbers at the school. This closure, accompanied by the vacating of the married quarters in the village, caused school numbers to fall from approximately 500 children in 2003 to around 300 in early 2009. Indeed, on 14 October 2008, the school principal, Mr McCaughey, had attended a meeting with officers of WELB to review the school’s financial and staffing situation following upon the significant declining enrolment which it was facing.

	(iii)	In the previous redundancy exercises, three Roman Catholic teachers had been made redundant (it appears that these redundancies were voluntary), and following the departure of the Army children, who would mostly have been perceived as Protestant, the religious mix of the staff was not proportionate to that of the pupils and, for the first time, the school had a majority of Roman Catholic children over Protestant/others.

5.	(i)	Subsequently, on 12 January 2009, the school’s Board of Governors held a meeting to consider the school’s enrolment and financial position and decided to reduce teaching staff levels by 3.6 teachers in the school year 2009/2010. (This was subsequently reduced to 2.6 teachers because Mr McCaughey, the principal, who had been on secondment to the Regional Teachers’ Centre, had that secondment extended.)

	(ii)	At this meeting, the principal produced figures showing the religious breakdown of staff and pupils. His evidence was that he had been asked to provide this information. There were 5 Roman Catholic teachers, and 10 others (who were perceived Protestant). Catholic pupils numbered 170, Protestant 130, reflecting what is stated at Paragraph 4(iii) above. These figures were discussed, and from the evidence of Reverend Mr Given, a governor who was present, it is clear that there was an awareness that the Roman Catholic pupils now outnumbered the Protestant ones, that the school had lost so many children already, and ‘would lose even more depending on who was made redundant’.

	(iii)	This meeting of 12 January 2009 was attended by officers of WELB including Mrs Ferris, of its HR Department. Redundancy selection criteria were agreed, and recorded as follows in the minutes:-

“Staffing would be reduced in line with ‘last in first out’, taking account of the needs of the school which the governors deemed to be in order of priority:-

(i) Vice-Principal position.

(ii) Literacy, Numeracy and Special Needs of the children.

(iii) School ethos – ie staffing in line with the religious mix of the pupil – in this case staff who could deliver RE to Roman Catholic children a priority.

(iv) ICT and Nursery Provision.

(v) Music, PE and History (incorporated in World Around Us) provision.

(vi) All other staff to be made redundant on ‘last in first out basis’.”

	(iv)	At a further meeting of the Governors, the following week, on 19 January 2009, Criterion (iii) above was amended to read ‘School ethos – ie staffing in line with the religious mix of the pupil’. This amendment was proposed by one of the governors, Father Collins, a Roman Catholic priest, who had not been present at the meeting the week before. It was these amended criteria which were used by the Staffing Committee of the Board of Governors when they subsequently held a meeting on 27 March 2009 to decide which staff members should be made redundant.
	(v)	The third criterion, as amended and set out above, is the one which the claimant challenges. In her view, it came down in effect to a religious ‘headcount’ designed to keep the number of Catholic teachers in the school in line with the number of Catholic pupils. The respondents’ contention is that this criterion is neutral, and that it related to the ability of the teaching staff to deliver Roman Catholic RE (including, in particular, preparation for the Sacraments) to Catholic pupils, and that for this reason those Catholic teachers in the school with less service than the claimant were saved from redundancy. They are adamant that they did not use the redundancy selection exercise to achieve a religious breakdown in staff corresponding to that of the pupils, and that the claimant’s religion, or perceived religious beliefs, were not the reason for her redundancy. It was the fact that she had not taught, or held herself out as being able to teach, Roman Catholic RE which led to her redundancy.

6.	(i)	The change in wording in the third criterion contained no reference to the ability to teach Roman Catholic RE, which was subsequently to form the basis of the respondents’ defence to these proceedings.

	(ii)	Father Collins was not called to give evidence and no real explanation was given to the Tribunal as to why he did not do so. There was some passing suggestion that he now suffers from ill-health, but no medical or other evidence to that effect was produced.

	(iii)	The other witnesses for the respondents who were present at the Board of Governors’ meeting on 19 January 2009 were not able to give the Tribunal much in the way of assistance as to the reasons for the amendment. There was a vagueness as to what Father Collins had said when proposing it, and no discussion of, or reasons for, the amendment are recorded in the appropriate minutes. There was some suggestion that the amendment widened the scope of the criterion, though on a literal reading it would seem to have the opposite effect. Mr Jack, the Chairman of the Governors, described it as ‘badly worded’, but appeared to suggest it was not designed to signify a fundamental change.

	(iv)	It is clear, however, that the WELB officers who attended the governors’ meeting had some misgivings about it. According to the Reverend Mr Given, they pointed out that the governors would need to be clear why they had chosen such a criterion, as it could be construed as discriminatory and lead to Tribunal proceedings, a prophesy which has unfortunately been fulfilled.

	(v)	The Reverend Mr Given stated that the amended Criterion (iii) was not designed to protect Roman Catholic staff, but accepted that the inevitable outcome of its application was their retention. Mr McCaughey agreed that it would protect Roman Catholic staff from redundancy, albeit that its purported emphasis was on meeting the needs of the school and its children. Miss McNicholl conceded that had the criterion not been used, three Roman Catholic teachers would have been lost.

7.	(i)	Criterion (iii), as amended, was set out in a letter to the claimant on 3 February 2009. The claimant took the potential effect Criterion (iii) to be that if one were a Protestant, it was likely one would be made redundant.

	(ii)	A meeting of the Staffing Committee of the Board of Governors took place on 13 March 2009. Representatives of trade unions to which teaching staff belonged attended to make representations. There were strong objections to Criterion (iii), particularly from Mr Graves of the Ulster Teachers’ Union (UTU), of which the claimant is a member. He is recorded in the minutes as stating that:-

“It was technical [sic] illegal for a controlled school to be delivering Catholic RE.”

		As put thus, this was an overstatement, but it should perhaps have served as a warning of the potential problems which might arise with the use of Criterion (iii) in a controlled school where statutory emphasis is placed on non-denominational religious education.

	(iii)	On 27 March 2009 a further meeting of the Staffing Committee was held. The concerns expressed by Mr Graves and other trade union representatives were reviewed at that meeting. However, the Staffing Committee proceeded to carry out the redundancy selection exercise, applying the criteria previously agreed, which included Criterion (iii) in its amended form.

	(iv)	As stated previously, the claimant and three other Protestant teachers were made redundant. No Roman Catholic teacher, of whom there were five in the school, was made redundant. One of the five Roman Catholic teachers properly avoided redundancy because he was the school’s Special Educational Needs Co-Ordinator (see : redundancy Criterion (ii)). Another had longer service than the claimant and was also the Literacy Co-Ordinator (see : Criterion (ii) also). Two of the remaining five had less service than the claimant, but were recorded as being able to deliver Roman Catholic RE. The remaining teacher ‘R’ was recorded as starting employment on 13 November 2006. She was also stated as having the ability to teach Roman Catholic RE. (At the redundancy selection meeting, the names of all teachers on the school staff were anonymised, but we are satisfied that because of the fact that it was a relatively small school, and because details of their posts, dates of appointment, etc were given, members of the Staffing Committee were aware of their identities. We think that this was unavoidable, and it was not in any way indicative of impropriety.)

	(v)	As far as teacher ‘R’ was concerned, an issue arose as to whether she should have been included in the redundancy selection exercise at all. She had qualified as a teacher in 2006. The Board of Governors were informed on 28 April 2009 that since ‘R’ had been employed at the school for two years, she had the right to be considered as a full-time employee. She was granted permanent status with effect from 1 June 2009. At the time the redundancy decision was made in March 2009, she was not a permanent employee, but was working as a substitute teacher. The respondents state that there had been discussions about her status before the redundancy process was commenced, but there are no records or minutes relating to this. We are not satisfied that ‘R’ had been continuously employed for two years by March 2009. Although she had been working in the school since November 2006, it seems to us that there were breaks in the continuity of her employment because of the summer months. It was suggested on behalf of the claimant that she was given preferential treatment because she was a Roman Catholic, and because the governors wanted to retain Roman Catholic teachers in March 2009, and that the conferring of permanent status upon her was by way of a ‘dubious ex post facto … justification’ to keep her on. Such conduct would be unprincipled and we do not accept that the respondents acted in such a way. Notwithstanding that we are satisfied that ‘R’ did not have two years complete service, we can see, looking at her employment record in its entirety, how the respondents might have reached such a conclusion, albeit that it was a mistaken one.

8.	(i)	The respondents’ case is that in reaching the decision on who should be made redundant, the governors focussed on the ability to teach Roman Catholic RE. In order to show this ‘[t]eachers [had to] possess a Catholic Certificate in Religious Education … Teachers [had to] provide the school with evidence of having completed the Certificate prior to their appointment’. (See : respondents’ answers to the claimant’s statutory questionnaire.)

	(ii)	However, we are satisfied on the evidence that the respondents, in focussing on the ability to teach Roman Catholic RE, did not pay sufficient regard to teachers’ qualifications to teach RE. The reason insufficient regard was paid to this and no real enquiries were made into the position was because Roman Catholic teachers had always taught Roman Catholic RE in the past, there was an assumption that non-Catholics would not want to teach it (which was not an unreasonable assumption – the claimant herself had never taught Roman Catholic RE or held herself out as being able to do so), and given the sensitivities of a divided community, there was a concern about the reaction of Catholic parents and a fear that they would vote with their feet and take their children elsewhere (there were three Catholic voluntary schools in the surrounding area). Mr Jack, Chairman of the Board of Governors, summed up the position when he gave evidence that the reality in Northern Ireland was that Roman Catholic parents would not be happy with someone from another religious persuasion teaching their children Catholic RE.

	(iii)	It is clear to us from the evidence of Father Raymond McCullagh, who has lectured in Religious Education at the University of Ulster since 1989 that the claimant was academically qualified to teach Roman Catholic RE. The claimant graduated from the University of Ulster at Coleraine in 1983 with an Honours Degree in Education. Her degree course included two modules:-

“Studies in Religious Education”; and

“Modern Approaches in Religious Education”.

		Her statement of academic progress recorded that her degree qualification ‘included the successful completion of courses designed for teachers of religious education, combining the study of content and method with practical experience of teaching the subject in school’. The undergraduate degree is no longer offered at the Coleraine Campus, which now offers a Post-graduate Certificate in Education (PGCE). The University does not offer a ‘Catholic Certificate in Religious Education’ as part of its PGCE qualification. It provides a common certificate in RE, recognised by both the Roman Catholic and main Protestant churches. It entitles the holder to teach RE in all schools, including Catholic maintained schools. This is so even if the holder has not attended part of the course dealing with Catholic sacraments. (This part of the course is not extensive and is relevant to those who wish to teach in the Maintained Sector.) We find, on the evidence of Father McCullagh, that the religious profile in the claimant’s degree course is equivalent to the certificate in RE on the current PGCE course. She, in fact, held the same qualification from the same institution as teacher ‘F’ (a Roman Catholic who it is accepted was properly retained as Special Education Needs Co-Ordinator, but who is also recorded as having the ability to deliver Roman Catholic RE). Teacher ‘R’ and another teacher also stated on the original job application forms that they held Catholic RE teaching certificates. In fact, they held the Coleraine PGCE, which includes the Certificate in Religious Education recognised by the Catholic Church, but which is not a ‘Catholic’ Certificate in Education.

9.	(i)	A worrying feature of this case is that there is evidence before us which suggests that the respondents believed that they were entitled to discriminate and that the fair employment legislation did not apply to them. The legislation in its original form contained a general exemption from its scope in relation to employment as a teacher in a school (see : Fair Employment and Treatment (Northern Ireland) Order 1998, Article 71). However, this was amended by Regulation 30 of the Fair Employment and Treatment (Amendment) Regulations (Northern Ireland) 2003 whereby the provision exempting the employment of a teacher in a school from the provisions of the 1998 Order were amended to apply the exception only to the recruitment of a person as a teacher. Therefore the 1998 Order prohibiting religious discrimination now applies in a redundancy situation.

	(ii)	Ballykelly PS had specifically recruited Roman Catholic teachers in the past, as it was entitled to do. However, the only WELB Equal Opportunity Policy adduced in evidence before the Tribunal had not been updated to reflect the changes in the law.

	(iii)	Further support for the view that the governors and WELB officials may have misunderstood the law is to be found in a letter to the claimant from the school principal, written as Secretary to the Board of Governors, on 11 May 2009. This followed a meeting on 23 April 2009 which the claimant’s union representative had attended to make representations against her selection for redundancy. The letter stated:-

“Regretfully, having reviewed all of the representations made, the Governors were unable to accept your representations for the following reasons:-

…

· the schools [sic] ethos pre-dates fair employment legislation and has been in place since the school’s establishment in 1828;”.

Although this letter was signed by Mr McCaughey, it is clear that it was drafted by WELB, though there was a reluctance to attribute its authorship to any identified person.

10.

(i)

The relevant law in relation to these claims is to be found in Article 3 of the Fair Employment and Treatment (Northern Ireland ) Order 1998, as amended by the Fair Employment and Treatment (Amendment) Regulations (Northern Ireland) 2003. The provisions make it unlawful to discriminate on the grounds of religious belief.

Article 3(2), dealing with direct discrimination, provides:-

“(2) A person discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of this Order if –

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

Article 3(2A) provides that a person indirectly discriminates against another person if:-

(b) he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same religious belief or political opinion as that other but –

(i) which puts or would put persons of the same religious belief or of the same political opinion as that other at a particular disadvantage when compared with other persons;

(ii) which puts that other at that disadvantage; and

(iii) which he cannot show to be a proportionate means of achieving a legitimate aim.”

(ii)

Regulation 24 of the 2003 Fair Employment Regulations inserts a new Article 38A in the 1998 Order. It deals with the burden of proof and provides:-

“Where, on the hearing of a complaint under Article 38, 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 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 complaint;

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

11.	(i)	In *Igen Ltd (formerly Leeds Carers Guidance) and Others v Wong, Chamberlain Solicitors and Another v Emokpae; and Brunel University v Webster [2006] IRLR 258, the Court of Appeal in England and Wales set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race, and disability discrimination. It is not in dispute that this guidance also applies to cases of religious discrimination. This guidance is now set out at an Annex to the judgment in the Igen* case, op.cit 269,270. We therefore do not set it out again, but we have taken it fully into account.

	(ii)	In short, the claimant must prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of unlawful discrimination on one or more of the proscribed grounds. The Tribunal will also consider what inferences it is appropriate to draw from the primary facts which it has found. By way of example, such inferences can include inferences that are just and equitable to draw from the provisions relating to statutory questionnaires, failure to comply with any relevant Code of Practice, or from failure to discover documents or call an essential witness. If the claimant does prove facts from which the Tribunal could conclude in the absence of an adequate explanation from the respondent that the latter has committed an unlawful act of discrimination, then the burden of proof moves to the respondent. To discharge that burden the respondent must show, on the balance of probabilities, that the treatment afforded to the claimant was in no sense whatsoever on a proscribed ground (in this case, religious belief). The Tribunal must assess not merely whether the respondent has proved an explanation for the facts from which inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that religious belief was not a ground for the treatment in question. Since the facts necessary to prove an explanation will normally be in the possession of a respondent, a Tribunal will expect cogent evidence to discharge that burden of proof.

	(iii)	Although the above logically establishes a two-stage process, it is not to be applied slavishly or mechanically, and in deciding whether the claimant has made out a prima facie case the Tribunal must put to one side the employer’s explanation for the treatment, but should take into account all other evidence, including evidence from the employer. (See : *Laing v Manchester City Council [2006] IRLR 748 EAT; Madarassy v Nomura International PLC [2007] IRLR 247;* and Arthur v Northern Ireland Housing Executive and Another [2007] NICA25.)

	(iv)	These cases were considered more recently by HM Court of Appeal in Northern Ireland in *Curley v Chief Constable of the Police Service of Northern Ireland and Another [2009] NICA 8* and *Nelson v Newry & Mourne District Council [2009] NICA 24*. In the former Coughlin LJ, at Paragraph 16 of the judgment, emphasised the need for Tribunals hearing cases of this nature to keep firmly in mind the fact that such claims are founded upon an allegation of religious discrimination. This was re-emphasised by Girvan LJ, at Paragraph 24 of the judgment in the latter case.

12.	(i)	In order to consider, in the context of indirect discrimination, whether the provision, criterion or practice was a proportionate means of achieving a legitimate aim, it is instructive to have regard to earlier cases concerning the previous principle of objective justification.

	(ii)	In *Bilka-Kaufhaus Gmbh v Weber Von Hartz [1986] IRLR 317* (a case of sex discrimination) the European Court of Justice held that in order to show justification as a defence to an action under what was then Article 119 (now 141) of the Treaty of Rome, a respondent could justify its practice if it were able to show that it was explained by objectively justifiable factors unrelated to any discrimination on the ground (in that case) of sex. It went on to state, at p.320:-

“If the national court finds that the measures chosen by [the respondent] correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued, and are necessary to that end, the fact that the measures affect a far greater number of women than men is not sufficient to show that they constitute an infringement of Article 119.”

Bilka-Kaufhaus was a case concerning equal pay, but it has been followed in sex discrimination case. In Hampson v DES [1989] IRLR 69 the Court of Appeal in England applied the test in Bilka-Kaufhaus to indirect discrimination under the Race Relations Act 1976 and stated that it was desirable that the same test of justification applied under that Act, sex discrimination legislation and the Equal Pay Act 1970. Balcombe LJ stated (at Page 75):-

“In my judgment ‘justifiable’ requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition.”

(iii)

This test is an objective one and it is not sufficient for an employer to show that he considered his reasons adequate. The test laid down in Hampson on the issue of justification was approved by the Court of Appeal in Northern Ireland in Briggs v North Eastern Education and Library Board [1990] IRLR 181.

Bilka-Kaufhaus was also considered in detail by the Employment Appeal Tribunal in Cobb v Secretary of State for Employment [1989] IRLR 464 EAT where it was stated, per Wood J at p.468:-

“It was for the respondent to satisfy the Tribunal that the decisions which he took were objectively justified for economic, administrative, or other reasons. It was for the Tribunal to decide what facts it found proved, and to carry out the balancing exercise involved, taking into account all the surrounding circumstances and giving due emphasis to the degree of discrimination caused against the object or aim to be achieved – the principle of proportionality – we do not accept that the production of a mass of statistics, or if sociological or expert evidence is a necessity on these issues, nor do we accept that the absence of such evidence proves that the reasoning of the [respondent] is flawed … a respondent is entitled to take a broad and rational view provided that it is based on logic and is in the view of the Tribunal a tenable view. He is under no obligation to prove that there was no other way of achieving his object, however expensive and administratively complicated.”

In Allonby v Accrington and Rossendale College [2001] IRLR 364, the Court of Appeal stated (per Sedley LJ at 370):-

“Once a finding of a condition having a disparate and adverse impact on women had been made, what was required was at the minimum a critical evaluation of whether the … reasons [for imposing a condition] demonstrated a real need [to take the action in question]; if there was such a need, consideration of the seriousness of the disparate impact … on women including the applicant; and an evaluation of whether the former were sufficient to outweigh the latter.”

		If an employer’s aim is itself discriminatory, then the requirement cannot be justified.

13.	(i)	We now proceed to apply the law to the facts as we have found them. We are satisfied that the claim of direct discrimination should succeed. It is clear to us that the claimant received the treatment she did because of her religion, or at the very least, to the extent that the respondents’ motives could be said to be mixed, her religion was an important factor in the respondents’ decision-making process. The fact that the respondents acted with good intentions in the interests of the school does not provide them with a defence. (See : *James v Eastleigh Borough Council [1990] IRLR 288.) We attach significance to the failure of the respondents to call Father Collins to give evidence. In Lynch v Ministry of Defence [1983] NI 216* it was held that if a party to proceedings failed to call a witness who might have been expected to be called and whose evidence might have been available to the Court or Tribunal, then the Tribunal is entitled to show an inference of discrimination. (See also : *Wasserstein Ltd v Adebayo [2005] IRLR 514*.) We also think that the respondents were led into error by their perception that fair employment legislation did not apply to the process in which they were involved.

	(ii)	We also find that the claim of indirect discrimination is made out. Essentially, the respondents did not deny that the requirement relating to the holding of a Catholic Certificate in RE was a criterion which placed the claimant at a disadvantage, but rather sought to argue that it was a proportionate means of achieving a legitimate aim. A difficulty for the respondents here is that while their witnesses gave evidence of long and protracted discussions in relation to other ways of delivering Roman Catholic RE, including the possibility of bringing in other teachers or local clergy to teach it, no efforts were made to do so on this occasion. This was because Mr McCaughey informed the governors that attempts along these lines had been unsuccessful in the past. No consideration was given to advertising, inviting applications to teach Catholic RE, nor was any consideration given to recruitment of a teacher on a part-time basis. Notwithstanding that it was a controlled school, there was a heavy emphasis on teaching Roman Catholic denominational education in Ballykelly and this combined with some alterations to timetabling, might have provided alternative, viable hours for a part-time teacher. On a more general level, having regard to Ballykelly’s status as a controlled primary school, it is difficult in terms of using proportionate means to achieve a legitimate aim, to reconcile the emphasis on teaching Roman Catholic RE and the aim of continuing to preserve its teaching to the extent that it was taught, with the statutory provisions relating to the teaching of RE set out at Article 21 of the Education and Libraries (Northern Ireland) Order 1986.

14.	(i)	We therefore make a declaration that the claimant has suffered an act of discrimination on the ground of religious belief. The Board of Governors found themselves in an extremely difficulty position in March 2009 and fell into error. Mr McCaughey, the principal, impressed us as a man of honesty and integrity, Miss McNicholl is someone who has devoted her life to the school, and the Reverend Mr Given, Mr Jack, and no doubt those other governors who did not give evidence, give up their time freely to perform valuable public service. We hope that this decision will not discourage them from continuing to do so. At all times their overriding interest was to protect and secure the school’s future viability.

	(ii)	We now turn to assess the claimant’s claim for compensation, which is restricted to injury to feelings. In doing so, we have regard to the following matters:-

(a) The claimant was not ultimately made redundant. By 25 June 2009 she had been offered, and accepted, a position in the school’s nursery unit. However, she did lose her P3 teaching post which she clearly enjoyed, and the position in the nursery was very much second best, and the whole process led to her feeling devalued.

(b) the claimant was anxious about her future, her career prospects, and the financial implications of redundancy not just for herself but also for her family.

She suffered as a result from stress, and was off work for several months. She had no history of stress-related absence, and generally had a good attendance record at work.

She did not suffer any long-term psychiatric injury.

(c) We are concerned here with a discrete act of discrimination.

The claimant accepts that there was a genuine redundancy situation at the school and there is no evidence that school management or governors acted with any malice towards her. We have referred above to the difficult situation in which they, too, found themselves.

(iii)

We are satisfied that the appropriate award of compensation is in the middle band of Vento v Chief Constable of West Yorkshire Police [2003] IRLR 102.

We consider that a total award of £7,500 is the appropriate amount. We also award interest on that amount from the date of the act of discrimination to the date on which interest is calculated at the applicable rate of 8%, a period of approximately 15 months. We calculate interest at £750. The total award is therefore £8,250.

15. This is a relevant decision for the purposes of the Fair Employment Tribunal (Interest) Order (Northern Ireland) 1995.

Chairman:

Date and place of hearing: 1 – 5 March 2010; and

10 March 2010, Belfast

11 March 2010, Coleraine

22 March 2010, Belfast

Date decision recorded in register and issued to parties:

Case Reference No: 161/09 FET

ANNEXE TO DECISION

FAIR EMPLOYMENT TRIBUNAL
CASE MANAGEMENT DISCUSSION

CASE REF: 00161/09FET

CLAIMANT: Julie Brudell

RESPONDENTS: 1. Board of Governors of Ballykelly Primary School
2. Western Education and Library Board

DATE OF HEARING: 2 December 2009

REPRESENTATIVES OF PARTIES:

CLAIMANT BY: The claimant was represented by Mr M Wolfe, Barrister-at Law, instructed by the Equality Commission for Northern Ireland.

RESPONDENTS BY: The respondents were represented by Miss A Finegan, Barrister-at-Law, instructed by the Education and Library Board’s Solicitors.

Record of Proceedings

1. The purpose of this Case Management Discussion was to:-

(i) identify the precise issues which the tribunal has to consider;

(ii) dispose of any outstanding interlocutory issues between the parties;

(ii) consider whether there are issues which it is appropriate to determine at a Pre-Hearing Review; and, if so, the precise issues to be determined at any such hearing;

(ii) consider, if appropriate, use of witness statements and their exchange; and

(ii) agree dates for a hearing.

2. Having considered the representations of Mr Wolfe and Miss Finegan I make the following directions and orders.

A Issues

The precise legal and main factual issues in this case have been identified as follows:-

Factual Issues

1. What were the circumstances which had led to the need for a redundancy exercise at Ballykelly Primary School?

2. Had the religious composition of the school pupils at Ballykelly changed significantly as a consequence of the circumstances leading to the requirement for a redundancy exercise?

3. What were the redundancy selection criteria adopted by the respondents?

4. Why did the respondents adopt that part of the selection criteria relating to school ethos?

5. How did the respondents interpret or apply that part of the selection criteria relating to school ethos?

6. What aim were the respondents seeking to achieve by adopting this criteria and interpreting it or applying it as they did?

7. How is denomination/non-denomination RE delivered at Ballykelly Primary School?

8. Did the interpretation or application of that part of the criteria relating to school ethos place non-Catholic teaching staff at a particular disadvantage when compared to Catholic teaching staff?

9. If so, what was that disadvantage?

10. Did the interpretation or application of that part of the criteria relating to school ethos place the claimant at that disadvantage?

11. Were there other means available to the respondents (apart from applying that criterion as they did) in order to achieve the aim which they were pursuing? If so, what were those alternative means?

12. Did the respondents use the redundancy selection criteria in order to achieve a religious composition within its staff which was in line (pro rata) with the religious mix of the pupils?

13. To what extent if any was the claimant’s religious beliefs (or perceived religious beliefs) a relevant factor in her selection for redundancy?

Legal Issues

Direct Discrimination

14. Was the claimant treated less favourably on the ground of religious belief, within the meaning of Article 3(2)(a) of the Fair Employment and Treatment Order (NI) 1998 (as amended)?

Indirect Discrimination

15. Did the selection criteria applied by the respondents relating to school ethos:

(i) put non-Catholic teachers at a particular disadvantage when compared with Catholic teachers; and

(ii) did it put the claimant at that disadvantage,

within the meaning of Article 3(2A)(b)(i) & (ii) of the Fair
Employment and Treatment Order (NI) 1998 (as amended).

16. If yes (to the issues relating to “disadvantage”) was the aim of the respondents in applying the criteria relating to school ethos, a legitimate aim within the meaning of Article 3(2A)(b)(ii) of the Fair Employment and Treatment Order (NI) 1998 (as amended)?

17. If. so, was the application of that criteria a proportionate means of achieving that legitimate aim Article 3(2A)(b)(iii) of the Fair Employment and Treatment Order (NI) 1998 (as amended)?

18. The relevant comparators for both the direct and indirect discrimination claims are teachers ‘E’ ‘N’ and ‘R’ (as per the respondents’ labelling).

Remedy

19. Assuming that direct and/or indirect discrimination has been made out what effect, if any, has that discrimination had on the claimant?

B Interlocutory Matters

No order is sought or made.

C Preliminary Issues

The parties confirmed that there are no preliminary issues in this case.

D Orders

In accordance with Rule 10(1) of the Fair Employment Tribunals Rules of Procedure contained in Schedule 1 of the industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, I make the following orders, by consent:

1. Witness Statements

The parties agreed that this was not an appropriate case for the use of witness statements.

2. Schedule of Loss

This is an injury to feelings case.

3. Any Other Orders

Not applicable.

4. Bundles

An agreed bundle, paginated and with a proper index, of all relevant
documents must be lodged in the Office of the Tribunals by 15 February
2010. Three further sets of the bundle must be brought to the Office of the
Tribunals not later than 9.30 am on the first day of the hearing.

5. Dates of Hearing

The case will be listed from 1 March 2010 — 5 March 2010 and from 10 March 2010 — 12 March 2010. These dates have been agreed by the representatives.

Chairman:

Date: December 2009

Notice

1. If any party fails and/or is unable to comply with any of the above Orders, any application arising out of such failure or inability to comply must be made promptly to the Tribunal and in accordance with the Fair Employment Tribunal Rules of Procedure 2005.

2. Failure to comply with any of these Orders may result in a Costs Order or a Preparation Time Order or a Wasted Costs Order or an Order that the whole or part of the claim, or as the case may be, the response may be struck out and, where appropriate, the respondent may be debarred from responding to the claim altogether.

3. 3. Under Article 84(9) and (10) of the Fair Employment and Treatment (Northern Ireland) Order 1998, any person who, without reasonable excuse, fails to comply with. a requirement imposed under Rule 9(2)(d) of the Fair Employment Tribunal Rules of Procedure 2005 to grant discovery and inspection of documents shall be liable on summary conviction to a fine not exceeding Level 5 on the standard scale - £5,000 at 3 September 2007, but subject to alteration from time to time; and if, without reasonable excuse, the failure continues after conviction, shall be liable on a second or subsequent conviction to a fine not exceeding one tenth of Level 5 on standard scale — £500, but subject to alteration from time to time — for each day on which the failure continues.

4. 4. A party may apply to the Tribunal to vary or revoke any of the above Orders in accordance with the Fair Employment Tribunal Rules of Procedure 2005.

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