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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Burnett v Stewart & Ors [2002] NIIT 3447_99 (18 December 2002)
URL: http://www.bailii.org/nie/cases/NIIT/2002/3447_99.html
Cite as: [2002] NIIT 3447_99
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- This decision is given in extended form.
- The applicant also made criticism of the candidates who went through to the final selection stage.
CASE REF: 03447/99 SD
APPLICANT: Ann Burnett
RESPONDENTS: 1. Joseph Stewart
2. Police Authority for Northern Ireland
3. Trevor Hinds
4. Price Waterhouse Coopers
The unanimous decision of the tribunal is that the applicant was not discriminated against by the respondents on the ground of her sex. Her application to the tribunal is therefore dismissed.
Appearances:
The applicant was represented by Ms N McGrenera QC, instructed by Harrisons, Solicitors.
The first and second respondents were represented by Mr F O'Reilly, Barrister-at-Law, instructed by The Crown Solicitor's Office.
The third and fourth respondents were represented by Mr M Wolfe, Barrister-at-Law, instructed by Price Waterhouse Coopers.
| 2. | (i) | The applicant, by an originating application presented to the Office of the Tribunals on 6 August 1999, alleged that she had been unlawfully discriminated against by the respondents on the ground of her sex. The applicant had applied for the position of Director of Personnel in the then Police Authority for Northern Ireland (PANI), and was not short-listed or selected for that post. |
| (ii) | Essentially, it is the applicant's case that the first-named respondent, Mr Stewart (who was Chief Executive of PANI, the second-named respondent) conspired with Mr Hinds (the third-named respondent and a Principal Consultant of Price Waterhouse Coopers (PWC), the fourth-named respondent) to conduct the recruitment process for the post in such a way that the applicant, or indeed any female, was not short-listed, thus depriving her of the opportunity to proceed to final interview, and the further opportunity to be selected for the post. The applicant claims that she met the criteria used for short-listing, and that her qualifications and experience were equal to, or greater than, the five short-listed candidates who proceeded to the final interview stage. |
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| (iii) | The applicant's case is founded on a deliberate and intentional act by the respondents. | |
| 3. | (i) | In order to determine this application, this tribunal has heard evidence from the applicant, Mrs Burnett, and from Mrs Vivienne Walker, and Mr David Galloway on her behalf. It heard evidence from Mr Hinds, the third-named respondent, and from Ms Sinead Lappin and Ms Elaine Williamson on his behalf. Mr Hinds is a Principal Consultant with the fourth-named respondent, Ms Lappin is employed by them as a Senior Consultant, and Ms Williamson, at the relevant time, was employed by them as a Junior Consultant. It also heard evidence from Mr Stewart, the first-named respondent, from Mr Graham White, former Director of Personnel in PANI, and from Mr Gerry Murray, a former Head of Procurement with PANI, and who was at the relevant time Deputy Chief Executive of the Government Purchasing Authority (GPA). The tribunal has also had regard to a considerable amount of documentary evidence submitted by the parties, which it has considered in its entirety. |
| (ii) | The tribunal finds the facts set out in the following paragraphs. | |
| 4. | (i) | The applicant had worked as a Senior Personnel Manager with PANI since September 1997. Prior to that she had held various positions in industry. Around February 1999 she became aware that Mr Graham White, the Director of Personnel at PANI, was leaving his post to take up a new appointment. His post was advertised in the Belfast Telegraph of 26 March 1999. It was also advertised in the National Press. The applicant was interested in the post, and after checking that it was permanent, as opposed to a fixed term post, decided to apply. |
| (ii) | Mr White left PANI before his post was filled, and the applicant had been acting-up in it for about a month at the time she made application for it. Generally, at that time, females were under-represented in the higher ranks of PANI – there was one other female employed at Grade 7, and none at Grade 6. |
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| 5. | (i) | Mr White submitted his resignation at a time of great change for the police service in the province. Following the Patten Report, a new Policing Board was to be established, PANI would disappear, and its civilian staff of 3,500 (many of whom were seconded civil servants) were to be moved to direct line management by the Chief Constable. |
| (ii) | In addition to Mr White's vacant post, PANI wished to recruit a Director of Support Services (dealing with transport, technology, communications, and accommodation) and a Director of Finance at the same time. Mr Stewart, the Chief Executive, met with the then Chief Constable, and it was decided that external consultants would be used to recruit for these vacancies. He then asked Graham White if he would make enquiries about the use of external consultants and suggested that he got in touch with Gerry Murray, who was then Deputy Chief Executive of the Government Purchasing Agency (GPA). In 1995 PANI had entered into a service level agreement with the GPA on the use of consultants, whereby the latter would provide advice and guidance consistent with best practice and Government accountability rules. |
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| (iii) | A memorandum from the Acting Director of Finance to the then Assistant Chief Constable on the use of consultants dated 22 July 1999 pointed out that:- "Government guidelines on the use of consultants require:- (i) a business case to be prepared where an assignment is expected to cost in excess of £10,000; (ii) a project specification to be prepared setting out the full terms of the contract – progressed through GPA; (iii) for projects costing £10,000 - £50,000 three or four firms should normally be invited to tender (for projects costing less than £10,000 single tender action is permissible); …" |
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| (iv) | In this instant case no business case was made out and no tender exercise took place with regard to the appointment of consultants. The advice which Mr White received from Mr Murray was that tendering was not necessary in this case. There was a framework agreement which covered various different aspects of consultancy, and which identified consultants able to work in the different categories. Price Waterhouse Coopers (PWC) was an identified consultant on a list of recruitment procedures. The advice was to run the recruitment exercise as separate competitions for the three posts, and so long as fees did not exceed £10,000 (excluding advertising) for each post, a consultant from the 'call-off' list could be used. It was on this basis that Mr White suggested to Mr Stewart that PWC should be used, and arrangements were made for Mr Stewart to meet with Mr Hinds. |
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| (v) | It is the applicant's case that what happened here was not three separate recruitment exercises, but one, and that Mr Stewart and PANI failed to follow proper procedures relating to the use of outside consultants. According to the applicant a business case should have been made, and the matter put out to tender before any external consultant was used. Had the correct tendering process been used, a proper short-listing process (which she denies took place) would have been carried out whether by PWC, or whoever was ultimately appointed. Dividing the exercise up into three supposed contracts was a way of sidestepping the stringent requirements of the guidelines, and allowed PWC to be used without them tendering. There is a lack of documentation such as invoices and receipts in relation to the process which occurred, though there is a letter of 12 February 1999 from PWC to Mr White which is capable of being interpreted as relating to one assignment. We have to say we found this aspect of the matter not entirely transparent and somewhat confused, which is hardly a satisfactory state of affairs when public money is being spent. However, what is clear is that Mr White and Mr Stewart acted with the advice and approval of Mr Murray who was an expert adviser in an outside agency. We are therefore dealing with three separate tender exercises, and having regard to the advice given to them, we are satisfied that the first and second-named respondents acted in good faith. We do not accept that the absence of the tendering process which the applicant claimed should have taken place put her at any disadvantage. |
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| 6. | (i) | After a decision had been made to engage the services of PWC, but before any short-listing took place, there was a meeting between Mr Stewart and Mr Hinds. It is alleged by the applicant that at this meeting the parties discussed individual or potential candidates. |
| (ii) | The tribunal finds that at this meeting, Mr Stewart and Mr Hinds were talking about the particular level of candidate the former would like to see appointed. Two female Personnel Officers of particularly high calibre were mentioned in the course of this conversation as indicative of the standard of applicant Mr Stewart would like to see appointed, though Mr Stewart did realise that PANI could not appoint them because of the salaries they would want, and there was also the fact that one of them had in any event just taken up a new appointment. Mr Stewart mentioned the names of others who might apply for the three posts. Mrs Burnett was mentioned without any discussion of her qualifications or the strength of her candidature. |
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| (iii) | The applicant claims these discussions were objectionable as they identified a general propensity to discuss candidates by way of pre-selection in relation to their role, and that, in effect, what Mr Stewart was doing on that occasion was giving Mr Hinds a steer not to appoint a female. | |
| (iv) | Mr Hinds, in evidence, accepted that with hindsight it had been a mistake to discuss potential candidates by name. Mrs Walker, one of the applicant's witnesses, described it as 'poor practice' and dangerous to talk about named candidates because it could lead to a fixed view. Mrs Lappin was also of the view that this constituted an undesirable practice. | |
| (v) | Be that as it may, the tribunal considers that the evidence and notes in relation to the conversation between Mr Stewart and Mr Hinds are consistent with the view that the former was prepared to accept the appointment of a woman to the post, and that, contrary to the applicant's contention, there is nothing in the notes which can be taken as indicative of an intention by Mr Stewart to discriminate against a woman. | |
| 7. | (i) | As part of her case against the respondents, the applicant attached significance to the fact that the draft advertisement in respect of the post did not contain a 'welcoming statement' advising that women were particularly welcome, and as a consequence had to be amended. |
| (ii) | At the relevant time, Mr David Galloway, who was then employed as a Staff Development Officer wrote a minute to Mr White, the then Director of Personnel, pointing out that omission and recommending that the original draft be amended to include a specific welcome for female applicants. As pointed out at Paragraph 4(ii) above, at the time of the recruitment exercise, females were under-represented at the higher ranks of PANI. Such a reference was subsequently included in the advertisement published locally. There were, however, differences between the advertisements which ultimately appeared in the local and national press. The advertisement in the latter contained a statement to the effect that PANI was 'an Equal Opportunities Employer'. This was because at that stage there was no legislative prohibition on religious or political discrimination on the mainland, and any reference to fair employment legislation would not have been a familiar concept to readers in Great Britain. In any event, as far as Mr Galloway was aware, Mr Stewart had no role in drafting the advertisement. The actual wording of the welcoming statement was decided upon by PANI and the advertising agency, and there was no input from PWC either. |
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| (iii) | The tribunal is therefore satisfied that nothing turns on the omission of the reference to female applicants in the draft advertisement. | |
| 8. | (i) | A further allegation made by the applicant is that, contrary to the fourth respondent's contract with PANI, no new job description was prepared, nor was a detailed personnel specification for the post drawn up. What appears to have occurred is that Price Waterhouse Coopers were provided with the relevant documents from the previous trawl for this post, and Mr Hinds modified them to produce the job description and candidate specification for the post in issue. Mr Hinds had however, no record of the previous job description or what happened to it. While the respondents' case has, regrettably, been characterised by missing or lost documents, and the production of other documents at a late stage, we do not draw any inference from the fact that documents are not now available. We discuss this in more detail at Paragraph 15. above. |
| (ii) | As far as the candidate specification was concerned, it stated that candidates must demonstrate that they met certain criteria in terms of qualifications. Preference might be given to candidates who possessed a relevant professional personal qualification recognised by the IPD, or Corporate Membership of the IPD, or a post-graduate management qualification which includes Human Resource Management. Mrs Burnett, the applicant, had an Honours degree in Business Studies, a Certificate on Human Resources Management, a JEB (Joint Examining Board) Teaching Diploma, and was a graduate (by examination) and Fellow of the Institute of Personnel and Development. (There were only 98 such fellows in Northern Ireland.) | |
| (iii) | 'Skills and Experience' required included the following:- "[C]andidates must have, within the last five years' [sic], at least three years' [sic]experience in Human Resources Management at senior management level in a wide range of personnel functions …" Also required was:- "Proven ability' to contribute to corporate strategies, business plans and policies, anticipating public demands, opportunities and constraints." In response to the advertisement in the press, and having obtained a copy of the job description and candidate specification, the applicant, on 19 April 1999, submitted an application form along with a statement – which was very comprehensive – setting out how she met the identified criteria for the post. |
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| 9. | (i) | In their meetings Mr Stewart of PANI, and Mr Hinds of PWC had discussed details relating to matters such as short-listing and the make-up of the final interview panel. The suggestion was that four to six candidates would be a manageable number of candidates for each of the three posts being trawled. In the circumstances the tribunal considers that this was a reasonable approach to take bearing in mind the first and second respondents' desire not to tie up senior staff for lengthy periods of time carrying out interviews. The process would involve an initial sift on the basis of candidates' application forms, a screening interview, and lastly, an interview conducted by PANI at which a successful candidate would be selected from the four to six who went forward. |
| (ii) | Mr Hinds appointed Sinead Lappin, a consultant in PWC, to head up the recruitment exercise in relation to the Director of Personnel post. He had a meeting with her and the other lead consultants (for the Director of Finance and Director of Support Services posts) to give them an overview of PANI, particularly the implications of the Patten Report on Policing, and to indicate how the three posts would interact. He gave Sinead Lappin the job description and candidate specification, and she drew up the questions for the necessary interview. Mr Hinds had no input into drawing up the questions. There are no records of the meeting or meetings between Ms Lappin and Mr Hinds to decide on the relevant questions at issue in the screening process. |
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| (iii) | Ms Lappin, who at this time was a Consultant (she was subsequently appointed Senior Consultant with PWC in 2000) had had experience of recruiting director posts when she worked for Gratton PLC (a group of mail order companies). She had been asked to manage the Director of Personnel post because of her background in Human Resources. | |
| (iv) | Elaine Williamson, who was a Junior Consultant with PWC, was assigned to assist her. Ms Williamson had graduated from university in 1997 with a Honours degree in English and Politics. Her appointment with PWC was her first job after her degree. She had obtained a Certificate of Management, which included elements relating to Personnel, and at the time of the interviews she was halfway through a course of study leading to the IPD Certificate in Training Practice. | |
| (v) | As far as the first stage of the appointment process is concerned (the initial sift) applicants were short-listed on their application forms on the basis of one criterion, ie three years senior management Human Resources experience within the past five years. This was seen as the core requirement for the job as set out in the candidate specification. The other skills were seen as better suited to the second stage, ie the screening process. |
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| (vi) | With this in mind, Ms Lappin drew up two documents, a set of competences and a list of interview questions. She decided on a competence based approach because she felt that by looking at the skills and behaviour which persons had demonstrated in the post, one could predict or get a good indication of how they would behave in the future. The competences were formulated using the candidate specification and the questions which she framed led on from the competences. |
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| 10. | (i) | On 5 May 1999, PWC sent a letter to the applicant, inviting her for 'interview' on Monday 10 May 1000. On 7 May 1999, she also received a telephone call from Sinead Lappin inviting her to attend on the Monday morning. The applicant duly presented herself on Monday 10 May 1999, where she met with Sinead Lappin and Elaine Williamson. According to them, all candidates were told that the purpose of the interview was to draw up an order of merit for candidates, who would then go through to the final stage of the process, ie the interview conducted by PANI. They told candidates something about PANI and the nature of the post, but did not do this for Mrs Burnett for the obvious reason that she came from PANI, and was acting up in the post. |
| (ii) | Ms Lappin and Ms Williamson proceeded to ask the applicant eight questions, in an interview lasting approximately ten minutes. Each question was designed to test a particular competence, and as stated the competences had in turn been extracted from the candidate specification. | |
| (iii) | Subsequent to the interview, Ms Lappin and Ms Williamson scored the candidates immediately. They discussed each candidate and reached an agreed score before the next candidate came in. After the interviews they drew up a matrix of results which they presented to Mr Hinds. He was given a summary of the process, and he explored several of the scores with them, paying particular attention to the top and lowest ranking candidates. |
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| 11. | (i) | On 2 June 1999, Mrs Burnett was told she had not been short-listed. She was surprised that there had been scoring in the screening process, as she regarded the purpose of short-listing to be to see if a candidate met the criteria, not to see if he or she best met it. |
| (ii) | She was displeased at not being short-listed, on 10 June 1999 she spoke to Mr Hinds on the phone and made some very severe criticism of her employer. She indicated that she expected the process to be stopped until her internal grievance was dealt with. However, the then Deputy Chief Constable after considering the nature of her complaint, declined to intervene. | |
| (iii) | Five candidates were selected to go forward to interview with PANI, and Mr Hinds attended a meeting with Mr Stewart and the then Deputy Chief Constable to present information on these five. | |
| 12. | (i) | The applicant makes various criticism of this screening process (including criticism of the marking which it is convenient to deal with separately). She says that she was given the impression that she was being invited along on 10 May 1999 for a 'little chat'. By this she understood that she was going to be asked to go over, and clarify or amplify matters on her application form. She did not know that it was to be a competency based interview. Ms Lappin denies using the words 'little chat' when speaking to the applicant. We accept her evidence, and reject the applicant's account for the following reasons:- |
(a) The letter of 5 May 1999 to the applicant specifically referred to an 'interview'.
(b) No complaint of a similar nature was made by anyone else called for interview. While Mrs Walker, who gave evidence for the applicant, said that she was not aware that scoring was taking place, or that the interview was stage two of a three stage process, she accepted that she had been called for an interview.
(c) Surprisingly, if the applicant felt that she had been mislead as to the nature of the exercise, she did not make any complaint at the time, or asked for the process to be stopped.
She only raised a complaint when she became aware that she had not been short-listed.
(d) The applicant was not unfamiliar with the process adopted here. In 1998 she had been involved in a PANI exercise to recruit Staff Development Officers which was very similar to the one at issue here.
| (ii) | The applicant alleged that a number of short-listing panels were used, and that this created subjectivity in the screening process. As stated, the applicant's interview was conducted by Ms Lappin and Ms Williamson. However, during the course of the interviews, Ms Williamson was taken ill with shingles. It was unclear how long she would be off work, and Ms Lappin was concerned that PANI's timetable for filling the posts might not be adhered to. Consequently, some of the other interviews were conducted by her and other consultants. This was not a particularly satisfactory state of affairs, something which Ms Lappin herself acknowledged. However, Ms Lappin was a constant throughout the series of interviews, and it is significant that the same panel as interviewed the applicant interviewed all the top candidates from the screening bar one. Having regard to the fact that this was a case of genuine illness on the part of Ms Williamson (we have seen the relevant medical evidence), and bearing in mind the nature of the case being made by the applicant, we do not attach any significance to the change of interview panel in the course of the screening interviews. |
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| (iii) | A further criticism made by the applicant relates to the experience of Ms Lappin and Ms Williamson. In essence, what is being said is that they were Junior Consultants and this created the situation when their will could be overborne by Mr Hinds. Mr Hinds stated that he did not take part in the screening process himself because he had confidence in Ms Lappin. However, it cannot be denied that in comparative terms, Ms Lappin and Ms Williamson were inexperienced. The former had not yet achieved the status of Senior Consultant, and Ms Williamson was in her first job after university. Ms Vivienne Walker who gave evidence for the applicant, said that she would have expected the interviewers for the post to have been of Principal Consultant level. The post being filled was a senior one in PANI, which at the time was going through a period of great change, and the interviewers should have had sufficient experience of policy and strategy to enable them to understand the answers given by candidates. Mrs Walker is a Companion of the IPD (ie the highest category of membership on the basis of work in the personnel field). We think her view on this matter is entitled to deference, and the tribunal agrees with it. In saying this, we are making no criticism of Ms Lappin and Ms Williamson who are both clearly very able nor, despite our reservations about their choice as interviewers, are we raising any questions about their integrity. We have seen and heard both of them give evidence. We are satisfied that neither would tolerate any improper interference with their role, or allow themselves to be told to act in an unlawful manner, in the sense of following an instruction from Mr Hinds not to appoint a female to the post. |
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| (iv) | The applicant has also made criticism of 'pen pictures' of candidates made by Ms Lappin at interview. These noted details such as candidates' appearance and dress. While accepting Ms Lappin's evidence that this was done as a memory aid, and for no other reason, we nonetheless feel that it was inappropriate, and contrary to good practice. | |
| 13. | (i) | We deal now with some other criticism made of the interview and interview procedures. Mrs Walker suggested that the process would have been improved by audio recording, followed by the use of transcripts and subsequent analysis. However, she conceded that she was not aware of any other organisation or body in Northern Ireland which used this method. Consequently, we do not see how failure by the respondents to use it can be criticised. |
| (ii) | More significant criticisms relate to the methodology at the interview, the criteria used, the questions asked, and the scoring, both of the applicant and successful candidates. We have previously indicated the approach used by Ms Lappin, ie competences were formulated using the candidate specification, and a list of questions was then drawn up from the competences. As far as this approach was concerned, Mr White the former Director of Personnel, described it as 'structured' and said that Ms Lappin had famed 'good questions designed to compel answers to competences'. Mrs Walker, who gave evidence for the applicant, accepted that the questions were relevant and albeit that in her view they did not fully reflect the criteria, she accepted that there was nothing inherently discriminatory against them. We are satisfied that everyone was asked the same questions, and treated in the same way, and that the applicant was given the same opportunity to perform at the interview as everyone else. |
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| (iii) | The applicant complains in particular about lower marks which she obtained (2/4) under the categories of drive and determination, analytical skills, and strategic level. She does not accept that she did not perform well in relation to these competences. Against this, it is clear that the interviewers gave her some excellent marks under other headings, and we found their explanations which we received about criticisms to the markings both logical and coherent. Detailed notes were kept of the interviews, and while it is unfortunate that the handwritten score sheets are no longer available, we see no evidence to suggest that the computerised print-out is not an accurate reflection of them. |
(i) One candidate, Keith Crews, who had the highest score of any candidate at screening, should not, according to the applicant, have been short-listed because he did not meet the basic short-listing requirement of three years senior management Human Resources experience within the past five years.
At the time of his application he had been Employee Relations Director with Barclays Bank for two years eleven months from December 1995 – November 1998. On the face of it he was therefore one month short of the criteria. He had had previous experience as a Personnel Manager from 1985 – 1989 but that was outside the five year period. However, between these two appointments, from February 1992 – December 1995 he had been an Operations Manager. In that capacity he had had responsibility for HR Policy. Ms Lappin took the view, with which we agree, that it was fair and reasonable to look at his experience as Operations Director when deciding whether he fulfilled the short-listing requirement.
(ii) Another candidate, Mr Michael Cox (who was ultimately the successful candidate after the PANI interview stage) was criticised because his experience was only in the public sector. However, there was no requirement in the short-listing criteria to demonstrate private sector experience.
(iii) Another candidate whose marks were challenged was Monica Redmond. The applicant's case was that there was a conspiracy not to appoint a female. Consistent with this case, the applicant therefore alleged that Ms Redmond was a 'token' female, who had no chance of success.
We do not accept that. Ms Redmond was Director of Human Resources at the Meat Hygiene Service, a next steps agency of the then Ministry of Agriculture Food & Fisheries in Great Britain. She was responsible for 21 employees, and provided advice to 1,700. We have also considered her qualifications, and consider that she was as good a candidate as the applicant. The answers which she gave to the questions at her screening interview appear to justify the marks which she obtained.
(iv) Although the applicant challenged the marks of the top five candidates, it is of some significance that she did not challenge the mark awarded to Ms Walker, who achieved one mark more than the applicant.
| 15. | (i) | An unsatisfactory feature of this case, on which the applicant has placed reliance, relates to documentary evidence. Documents have either not been located when they should have been, have gone missing, or although in existence, have not been discovered at the appropriate time. |
| (ii) | For example, the original handwritten score sheets of the screening interviews are not available – they appear to have been destroyed once the relevant information was transferred to computer. Mr Hinds has no notes of any meeting with Sinead Lappin and the other consultants who were to take these matters forward, nor has he any notes with his meeting with Mr Stewart of PANI and the then Deputy Chief Constable on 21 May 1999 when the latter were presented with information packs on the five candidates going through from screening to final interview. Notes of other meetings were undated, and a diary showing the dates when these meetings took place, although in existence when discovery should have been made, was not made available until 14 March 2003, the sixth day of hearing. The somewhat lame excuse was tendered that the third and fourth respondents were not aware that the diary constituted discoverable documentation. |
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| (iii) | The above are just some examples. Against this, there are other examples where note-taking and documentation produced, particularly by Ms Lappin, was excellent. We therefore do not feel able to draw any adverse inference from those examples of unsatisfactory note-keeping and discovery, and attribute it to a somewhat casual attitude on the part of the respondents as opposed to anything more sinister. If there had been a conspiracy to do down the applicant, the conspirators would have done a better job getting their act together. | |
| 16. | (i) | Having reviewed the evidence and found the facts as set out above it is to this conspiracy theory that we now turn. According to the applicant the objective of the conspiracy was that Mr Stewart did not want her, or any woman, appointed to the post. There is no evidence of any reason why Mr Stewart did not want her to be appointed. The applicant conceded that in the two years she had worked in PANI, Mr Stewart had never done anything to her detriment, and he had never made any criticism of her work. Ms Walker, who had known Mr Stewart, could not point to any evidence on his part of a disposition to discriminate against women. Mr Stewart told the tribunal that he was surprised that the applicant had not gone forward from the screening stage, and we accept that this was a genuine feeling on his part. Indeed, when he became aware that she had not gone through, he asked Mr Hinds if he was satisfied with the process which had been conducted and the latter assured him that he was. |
| (ii) | Mr White, the former Director of Personnel, had appointed the applicant to her existing post in preference to one male candidate, and had defended an application by the unsuccessful candidate before an industrial tribunal. There had been nothing in her working relationship with Mr White to suggest any bias to any women. An allegation was put to Mr White for the fist time in cross-examination that Mr White had said to the applicant in March 1999 or thereabouts, "[Y] ou will never fill by shoes" and "I am the King". Mr White denied making that remark and we accept his denial. If the remark were true, it would have been clear evidence of discrimination. The applicant did not make any complaint or invoke any grievance procedure at the time. She stated that she did not do so because Mr White was leaving PANI. Even accepting this reason, it is difficult to understand why the applicant made no reference to the alleged remark in her originating application, statutory questionnaire, and her reply to the respondents' Notices for Particulars. |
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| (iii) | Had there been a desire on Mr Stewart's part not to appoint a female, then it is difficult to understand why he would have sought approval to appoint external consultants. The appointment of external consultants should, in accepted theory, lead to transparency and independence in the appointment process, and this would not facilitate the achievement of any unlawful objective. For the conspiracy to operate, it of course did not only involve employees of PANI, but had to extend to the outside consultants. Mr Stewart had to bring Mr Hinds on board, and he in turn had to persuade or suborn Sinead Lappin and Elaine Williamson to mark the applicant down so that she could not go forward to final interview. (The applicant had herself sat on an interview panel with Mr Hinds in 1998, and she accepted that he had had no difficulty in appointing a female to the post in question.) Part of the conspiracy involved including a token woman, Monica Redmond, in the final five going forward for interview. (We have already rejected the applicant's claim that Mrs Redmond was a token woman.) |
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| (iv) | We accept Mr Hinds' evidence that there was no approach from Mr Stewart to ensure that a female candidate would not be appointed, and that no attempt was made to influence him, nor did he in turn seek to influence Elaine Williamson and Sinead Lappin. We further accept his evidence that his firm would not do business in that way, and that any improper approach would have led to them terminating the contract. His organisation had no interest in the eventual outcome of the process. | |
| (v) | Any conspiracy not to appoint Mrs Burnett would of necessity require the involvement of Ms Lappin and Ms Williamson. Both made it plain they would have had nothing to do with any malpractice of this sort. The tribunal accepts this. It is clear to the tribunal that they were both honest witnesses, possessed of integrity. In particular in this regard, Ms Lappin did not have any contact with anyone from PANI (in particular Mr White and Mr Stewart) throughout the entire process. | |
| (vi) | As part of the conspiracy it was alleged that Mr White and Mr Hinds had previously had a close professional relationship. Mr White had certainly given Mr Hinds a reference, and he had himself been 'headhunted' by Mr Hinds. While their paths had certainly crossed, he did not know Mr Hinds socially, he did not know who would be carrying out the interviews at PWC, and he never asked anyone to interfere with or 'fix' the recruitment process. | |
| 17. | (i) | We therefore reject the applicant's claim of a conspiracy to prevent her being appointed, and we are further satisfied the applicant has not proved facts from which the tribunal could conclude she was unlawfully discriminated against.. |
| (ii) | We have at various points of this decision been critical of the third and fourth respondents and their procedures, and we have to say that bearing in mind the importance of the post in respect of which the recruitment exercise was being carried out, Mr Hinds on occasions gave the impression that his approach to matters verged on the casual. It is perhaps therefore not surprising that the applicant, who was clearly a conscientious and loyal worker of PANI, and who had performed the post satisfactorily on an acting-up basis, felt a sense of grievance in addition to her natural disappointment. This unfortunately set in motion a train of events which has led to the making of unjustified and hurtful allegations of unlawful discrimination against other people. Her application is dismissed. |
Chairman:
Date and place of hearing: 16 – 18 December 2002; 11 – 13 March 2003;
17 – 19 June 2003; 29 August 2003; 27 – 30 October 2003;
19 December 2003; at Belfast
Date decision recorded in register and issued to parties: