Case Reference: 01703/00
APPLICANT/RESPONDENT: Mark Madden
RESPONDENTS/APPELLANTS: 1. Clanmil Housing
2. Ms D Shanks
3. Ms S Fearon
Question 1
In light of the fact that the respondents/appellants had deliberately not specified previous housing experiences 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'?
RESPONSE
The tribunal do not have a record that direct evidence was given that the respondent had deliberately not specified previous housing experience, the tribunal accepted that candidate should have previous experience in a caring environment. The successful candidate had at the date of her application been working in the Rate Collection Agency for a short period and had for the previous seven years been involved in general administration in RUC Headquarters. The tribunal were of the opinion that as the successful candidate's experience as a Nursing Auxiliary did not fulfil the requirements of the job specification which required a minimum of two years working in a caring environment. The applicant/respondent in contrast had over the past three years been employed in a similar position to that being advertised and he had considerable previous experience in Social Services. The tribunal were of the opinion that the applicant/respondent merited a higher mark in this respect than any other candidate.
Question 4
Did the tribunal err in law and reach a conclusion that no reasonable 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 timescale and to the application of the said policy to the appointment of Ms McBeth to Blessington Court and Ms Stevenson to Greenville Court?
RESPONSE
The tribunal gave consideration to the applicant's policy that a person on the Reserve List would have their name retained for six months and be considered for similar post position which would have been vacant within that period. The tribunal did not consider that the application of a policy, which enabled a candidate who was interviewed for the same post as the applicant/respondent, who had been asked the same questions and who had scored fifteen marks less than he did to be appointed solely on the basis that she was placed first reserve for another position. The tribunal did not consider that such a policy demonstrated an Equal Opportunities Practice. The tribunal were of the opinion that such a selection procedure did not enable the best person to be chosen on merit. If the applicant/respondent's marks had not been changed he would have obtained the same markings as the first reserve on the Henderson Court list and therefore in accordance with the respondents/appellants' policy would have been entitled to be considered for other posts notwithstanding that he had not applied for them. The tribunal do not accept that a policy which allows for some posts to be filled without being advertised was in compliance with the proper Equal Opportunities Policy.
Question 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 interviews had differed' without concluding that such change discriminated against the applicant/respondent on the ground of sex?
RESPONSE
The tribunal formed the opinion that the interviewing process had been contaminated. The respondents/appellants did not disclose to the tribunal that some of the interviews had been conducted for different posts and their marks subsequently used for placing them on the Henderson Court interview. The tribunal were of the opinion that the mixing and picking from interviews as suited them was incorrect. The tribunal were of the opinion that all candidates should have been advised prior to the interviewing process what posts were available and the procedure that they intended to follow. The tribunal were not made aware of where in the respondents/appellants' Equal Opportunities Policy there was a provision that persons placed on a Reserve List could be offered a similar position if a vacancy occurred within six months. This practice was cited in letters to candidates who were first reserve but was not contained in any of the Equal Opportunities documents provided to the tribunal. The effect of this policy was that persons who were initially considered to be less suitable were eventually appointed. The applicant/respondent was the only male candidate and was the only candidate not offered a post notwithstanding his higher marks. The tribunal concluded that this was because he was a man.
Question 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 grounds of sex by not being appointed to a position at Henderson Court?
RESPONSE
The tribunal formed the opinion that the applicant/respondent had been discriminated against and in determining so it took into consideration the following:-
(i) The applicant/respondent was the only male candidate.
(ii) He had the most relevant experience.
(iii) Markings had been altered and no reasonable explanation had been given to the tribunal for the changes. The effect of the changes meant that the applicant/respondent was the only candidate to be marked downwards, other candidates were marked either up and down.
(iv) The fact that the respondents/appellants were an organisation with 28 female co-ordinators and one male co-ordinator demonstrated the ethos of the organisation in respect of female appointments.
(v) The tribunal did not accept the appointments procedure which allowed candidates with lower scores to be appointed, to be just and equitable.
(vi) The adherence to their practice meant that people were being appointed to posts which had not been advertised.
The tribunal taking all these matters into consideration were of the opinion that the applicant/respondent had been treated differently because he was a male and therefore had been discriminated against on the grounds of his sex.
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