High Court of Justice in Northern Ireland Queen's Bench Division Decisions

1. In light of the fact that the respondents/appellants had deliberately not specified previous housing experience as either essential or desirable but had specified previous experience in a caring environment as desirable, did the industrial tribunal err in law and reach a decision that no reasonable industrial tribunal could have reached in deciding that the applicant/respondent was "the only candidate with relevant experience"?

2. In light of the fact that there was unchallenged evidence providing explanations for a number of changes to the markings, [this is a reference to the marks given by each of the panel members to each of the candidates] and in the absence of any finding of fact showing how the changes disadvantaged the applicant/respondent on the ground of sex, was the industrial tribunal's decision finding of fact that he was disadvantaged on the ground of sex wrong in law and was it a conclusion which no reasonable industrial tribunal could have reached?

3. Did the industrial tribunal err in law by deciding that the applicant/respondent had been discriminated against on the ground of sex when it failed to determine that he was the best candidate for the job?

4. Did the industrial tribunal err in law and reach a conclusion that no reasonable industrial tribunal could have reached by failing to have regard to the applicant's policy, established with recognised equal opportunities practice, that a person who is a runner up to an advertised post can be appointed to another equivalent post which is vacant within a limited time scale and to the application of the said policy to the appointments of Ms McBeth [another candidate for the job that Mr Madden had applied for] to Blessington Court [a different job within the same organisation] and Ms Stevenson [another candidate] to Greenville Court [another post within the Clanmil organisation]?

5. Did the industrial tribunal err in law and reach a conclusion which no reasonable industrial tribunal could have reached by deciding that the interviewing process was "contaminated by the fact that the panel of interviewers had differed" without concluding that such change discriminated against the applicant/respondent on the ground of sex?

6. In the absence of any findings of fact showing how the applicant/respondent was less favourably treated by the appointments procedure, did the industrial tribunal err in law or reach a decision which no reasonable tribunal could have reached in concluding that the applicant/respondent had been unlawfully discriminated against on the ground of sex contrary to the Sex Discrimination (Northern Ireland) Order 1976?

7. Did the industrial tribunal err in law or reach a decision which no reasonable industrial tribunal could have reached in inferring that there was discrimination on the ground of sex because one member of the interview panel accepted that she had made remarks about which the applicant/respondent later complained and that the issues raised by him would be addressed at further training for panel members?

8. In light of all the evidence, oral and written, did the industrial tribunal err in law in deciding that the applicant/respondent had been discriminated against on the ground of sex by not being appointed to a position at Henderson Court?

(1) The previous experience of the candidates

"… the tribunal noted that question number 1 related to past experience and how it would enable them to carry out their duties as scheme co-ordinator. The successful candidate who had n previous experience in sheltered housing scored 5 from both interviewers, as did the first reserve candidate who also had no experience. Both of these candidates had some nursing experience but it was admitted by the respondents that nursing skills were not required in the posts advertised. Two of the other female candidates who also did not have experience of working in sheltered accommodation scored 8 and 6 and 8 and 7 respectively whereas the applicant who had 3 years' experience in sheltered accommodation was only given 7 by each interviewer. If an objective test was to be applied to this question the applicant would appear to have merited a higher mark than any other candidate as he was the only one with relevant experience."

"This is a question of fact and does not raise a valid question of law. The post advertised was for a resident scheme co-ordinator in Henderson Court, Belfast. The tribunal accepted that candidates should have (inter alia) previous experience in a caring environment. The successful candidate had at the date of her application been working in the rate collection agency and prior to that had been involved in general administration in RUC headquarters for the previous 7 years whereas the respondent's experience over the past 3 years was in a post similar to that being advertised and he also had previous experience in connection with the social services. The tribunal concluded the respondent had more relevant experience."

(2) The changes to the markings

"The applicant referred the tribunal to specific markings by the interviewers in respect of each of the candidates and in particular the successful and first reserve candidates and claimed that scores were altered in order to benefit Ms Hawthorn and Ms Stevenson. He contended that if the scoring had not been changed the successful candidate would have scored 93 and he would have had the same mark as the first reserve at 92.

…

The tribunal expresses concern regarding a number of changes made to the scoring and in particular to the applicant's score which was always changed downwards.

…

The tribunal was also concerned regarding a number of changes in the markings which culminated in the applicant being disadvantaged."

"This question is likewise one of fact and does not raise a valid question of law. The respondent did challenge the markings in his own evidence and in his cross-examination of Ms Shanks. The respondent contended that if proper consideration had been given to his experience and markings had not been changed, he should have been successful. He contended he had not been properly assessed in Questions 1 and 11. It is not for the tribunal to do its own assessment but the tribunal accepted if the marks had not been changed he could have been first reserve, the changing of the marks clearly disadvantaged him and benefited the two female candidates placed ahead of him."

(3) The best candidate?

[14] The tribunal disavowed any decision on whether Mr Madden was the best candidate for the post. On this issue the tribunal said: -

"The tribunal were of the unanimous opinion that the applicant had been discriminated on the grounds of sex.

The applicant did not claim that he had suffered financial loss by not being appointed as he was in a similar post in England but he did contend that he had suffered considerably by the failure of the respondents to appoint him."

"8. - (1) It is unlawful for a person, in relation to employment by him at an establishment in Northern Ireland, to discriminate against a [man]-

(a) in the arrangements he makes for the purpose of determining who should be offered that employment …"

Thus, Mr Wolfe accepted that if the tribunal had concluded that Mr Madden had been discriminated against because of the arrangements put in place by Clanmil, provided there was evidence to support that claim, no challenge to the correctness of that decision would lie. His argument was that the tribunal must have become confused between its original disavowal of any attempt to decide that Mr Madden was the best candidate and its examination of the question whether any financial loss accrued since the latter question was predicated on it being shown that Mr Madden should have been appointed to the post.

"This question again raises a question of fact and does not raise a valid question of law. The tribunal do not accept that it was necessary for it to determine that the respondent was the best candidate in order to conclude that he was discriminated against. The tribunal accepted the respondent's contentions that the interviewing process and marking system discriminated against him. He was the only male candidate, he had the most closely related experience for the post and satisfied all the criteria for the post. The tribunal was satisfied that if proper weight had been given to his experience and the markings had not been altered he should have obtained higher markings than he did. The respondent was marked higher than two female candidates, both of whom were given posts they had not applied for."

(4) The appointment of other candidates to different positions

"The tribunal had before it a document which showed that the interviews for the post in Henderson Court were held on 10 May and 12 May 2000. Ms da Costa and Ms McBeth were interviewed on 10 May, Ms Stevenson, Ms Hawthorne, Mr Madden and Ms Snodgrass were interviewed on 12 May. The interview assessment forms appeared to relate to appointments in other schemes, Mrs McBeth contained (sic) a reference to Greenville Court and Ms Snodgrass a reference to Somme Park and Ms da Costa a reference to Greenville Court. The tribunal sought an explanation and were informed that Ms da Costa and Ms McBeth were interviewed on 10 May for Greenville Court and their scoring at that interview was used to place them in order of merit for the Henderson Court job, for which they had also applied. This explanation may have been satisfactory but for the fact that the interviewing panel for Greenville Court was not constituted in the same manner as that for Henderson Court. In addition to Ms Shanks and Ms Fearon and Ms Roisin Omokere, housing officer for Greenville Court attended and scored the candidates. Her marks were discounted in respect of Ms da Costa and Ms McBeth and the scorings given at that interview by Ms Shanks and Ms Fearon were transposed to the scoring frame for Henderson Court."

[9] The requisition on this issue challenged the tribunal's understanding of the system by which those who are runners-up in interviews may be appointed to alternative posts. Ms McBeth had applied for a position at Greenville Court at the same time as she made her application for the post at Henderson Court. Mr Madden had only applied for the Henderson Court post. In a written submission to this court he stated that this was because he had not been aware of the other openings. Be that as it may, the situation that the interviewing panel had to deal with was that Mr Madden had not applied for the other posts.

"The tribunal asked why the respondent had not been considered for any of the other posts the reply had been that he had not made application for those posts. This determination did not apply to either Mrs McBeth or Mrs Stevenson who were appointed to posts for which they had not applied."

Unfortunately, this passage reveals a fundamental misunderstanding on the tribunal's part. The reason that Ms McBeth and Ms Stevenson were considered for and ultimately appointed to different posts was that they had been runners-up in competitions for other positions. This was in accordance with Clanmil's pre-existing policy. It did not transpire as a result of some action taken after the interviews for the post at Henderson Court.

(5) The "contamination" of the interviewing process

"The tribunal formed the opinion that the interviewing process had been contaminated. It was only during the hearing and on being questioned by the tribunal did it become apparent that two of the candidates had been interviewed for a post in Greenville Court. This panel was made up of three members and the marks for the post of Ms Shanks and Ms Fearon wre then accepted as their markings for the post at Henderson Court notwithstanding the schedule of marking clearly showed the interview related only to Greenville Court. Neither of these candidates scored as highly as the respondent but one of them was offered an appointment on the basis that she was first reserve in the Greenville Court interview. The tribunal was of the opinion that the whole process placed the respondent at a disadvantage and that he had been less favourably treated."

Again, regrettably, this response betrays the tribunal's failure to appreciate the manner in which the interviews were conducted and the effect of the policy referred to above. The tribunal does not explain in what way the contamination occurred nor how that affected the outcome of the interviewing process.

Questions 6 & 7

(8) Was Mr Madden discriminated against on the ground of his gender?

"This does not raise a question of law. It merely disputes the findings of the tribunal that the respondent had been unlawfully discriminated against."

"The tribunal were of the unanimous opinion that the applicant had been discriminated against on the grounds of sex."

This conveys nothing as to why they concluded that the less favourable treatment was on the ground of sex.

"…in order to qualify as a point of law on which the opinion of the Court of Appeal may be sought, any disputed finding on a factual matter should not only be demonstrably wrong but must have influenced the tribunal in a material way to its ultimate conclusion on the allegation of discrimination. Thus a palpably incorrect decision on a question of fact will not warrant an appeal by way of case stated if it played no part whatever in the eventual finding of the tribunal."