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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McLoughlin v East Down Institute of Further & Higher Education [2003] NIIT 2040_02 (20 November 2003)
URL: http://www.bailii.org/nie/cases/NIIT/2003/2040_02.html
Cite as: [2003] NIIT 2040_2, [2003] NIIT 2040_02
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- The applicant presented an originating application on 3 September 2002 alleging sex discrimination by the respondent in its appointment of a female who was less well qualified than him in terms of experience and meeting the requirements of the post of Community Development Officer and that the selection procedure was unfairly applied to him to secure the appointment of a female. He claimed:-
- Having heard the evidence of the applicant, Bill McAlorum, David Smith and Josephine Quinn and considered the documents produced, the tribunal found the following facts:-
- 1 In or about the month of April 2002 the respondent placed the following job advertisement in the Belfast Telegraph:
- 2 A copy of the job description is attached hereto and marked Exhibit 1. The essential qualifications were:
- 3 Thirteen applications were received and of these nine (seven female and two male) were shortlisted as meeting the essential criteria.
- 4 The shortlisting panel were David Smith, Assistant Director Lifelong Learning who had responsibility for services to maximise the opportunities contained in the Department's Lifelong Learning strategy for East Down and wider communities in Northern Ireland, who acted as Chairman, Josephine Quinn, Assistant Director Corporate Services and Bill McAlorum, Personnel Manager. The shortlisting panel were also the interviewing panel. The tribunal was satisfied that the members of the panel were appropriate and in accordance with the Institute's Recruitment and Selection procedure.
- 5 Interviews were held on 24 June 2002. Of the nine shortlisted candidates only six attended - the applicant and five females. The successful candidate was Loretta McDonnell and the reserve was Siobhan McCusker.
- 1 At the shortlisting meeting the members of the panel examined the application forms to see if the candidates met the essential criteria. The application forms were then taken by the Personnel Manager and put away until the pre-interview meeting of the panel.
- 2 The questions to be asked at the interviews and the assessment and grading sheets were prepared by the Chairman. This was appropriate bearing in mind the post was within his remit and his area of responsibility. The questions were based on the requirements as set out in the job description. The weighting of the areas in the Assessment & Grading forms was decided by the Chairman. Marking other than for IT literacy was based on answers to questions.
- 3 There were five specific questions:
- 4 At the pre-interview meeting the panel members were given copy of the job description, the sheet of questions, assessment and grading forms for each candidate and the candidates' application forms. The meeting started 15 minutes before the first interview instead of "at least 30 minutes" as prescribed in the respondent's Recruitment & Selection Procedures. There was discussion of the questions and the following additions were made: the words "And how would you market such provision"? were added to question (ii) and after question (v) a further question "Have you anything to add"? In relation to marking IT literacy it was agreed to award 3 marks for any IT qualification.
- 5 The job description stated under DESIRABLE that "Applicants should be IT literate and familiar with office applications of new technology". All other desirable criteria other than IT were assessed on answers to questions asked at interview. While it was difficult to see why IT was treated differently the panel were entitled to treat it this way. It was objective and was applied to all shortlisted candidates. The candidates were not informed that 3 marks were being awarded for an IT qualification, nor would they have been aware of the possible number of marks for answers to questions at interview.
- 6 The applicant suggested it was suspicious that all three members of the panel had initially awarded 3 points to Mary McMahon, then realised simultaneously they had made a mistake and taken away the 3 points. The evidence of J. Quinn was that Mary McMahon was the first interviewee, that the panel individually checked through each application to see if the candidate had stated possession of an IT qualification in his/her application form, that Mary McMahon had written at some length about her IT experience and each of them initially thought she had a qualification until one of them pointed out this was not so. While this suggested to the tribunal that there was discussion when the panel members were going through the application forms to check for evidence of IT qualification as well as discussion at the end of all the interviews, the tribunal was satisfied it did not amount to a plot to ensure that the applicant, the single male candidate, was not the only person who did not receive 3 points for an IT qualification.
- 7 There were a number of changes in the marking on the assessment and grading sheets, especially by David Smith. While the tribunal can understand this led to suspicion in the mind of the applicant, it found that the changes were equally capable of innocent explanation and it was unable to draw any inference from these; likewise in the case of the dots beside figures. The tribunal would recommend that when marks are changed the alterations should be shown clearly.
- 8 No one was asked after the five interview questions if they had any questions to ask the panel. The applicant felt they should have been given this opportunity. In the tribunal's view this was a matter within the discretion of the interviewing panel. The tribunal was satisfied that the candidates were asked by the Chairman if there was anything they wished to add. This was confirmed by the "Additional notes". We did not accept the applicant's claim that he was asked it in the context of question 5, particularly as question 5 was asked by B. McAlorum.
- 9 The tribunal did not accept the applicant's claim that D. Smith paraphrased or changed questions which he asked him. The applicant's answers were consistent with his having been asked the set questions.
- 10 The applicant claimed that he felt rushed and hurried during his interview. While he may have felt this, the record of the length of each interview shows that his interview lasted twenty minutes which was longer than most of the other interviews. Also he claimed D. Smith was abrasive with him. Again the applicant may have thought this but the tribunal found no evidence to support it. It was clear from the Assessment and Grading forms that D. Smith marked lowest of the panel members and that B. McAlorum marked highest and this applied to all the interviewees.
- 11 Out of the six candidates interviewed three were in the running for the post. This was accepted by the panel members. The three were: the applicant, Loretta McDonnell and Siobhan McCusker.
- 12 The applicant disagreed with the panel's marking in relation to "knowledge and experience" and "specialist knowledge". In the main these were covered by Questions 1 and 2. In particular he challenged the consistency of the evidence of the panel in relation to their interpretation of "local knowledge". The evidence of the panel was that they were looking for general rather than specific local knowledge but that specific local knowledge would be an advantage and both Bill McAlorum and Josephine Quinn said it would merit additional mark/s. David Smith said it would impress but could not say whether it would merit extra mark/s.
- 13 While each panel member totalled his/her marks for each candidate the totals were not aggregated. Each panel member's marks were used for ranking purposes and the successful candidate and reserve were decided upon after panel discussion. While the tribunal may express concern at a possible loss of objectivity, this procedure was in accordance with the Institute's Recruitment and Selection Procedure.
- 14 One of the things that upset the applicant, and understandably so, was that J. Quinn had not totalled his marks correctly on her marking sheet. She had given him a total of 65 marks instead of 69. What made this worse was that the candidate chosen as reserve also had a total of 69 marks.
- 15 In the notes of the panel discussion after the interviews:
- 16 In the light of the marks and the panel discussion and the evidence of the panel members to the tribunal, the tribunal did not accept that D. Smith unduly influenced the other two members in the choice of the successful candidate or the reserve candidate.
- .17 The applicant, disappointed at not being appointed, wrote to Bill McAlorum, the Personnel Officer, on 26 June 2002, expressing his surprise that there was no question on "community development" at the interview and that he was not given an opportunity to ask questions on the panel's perception of "community development". He requested details of experience of specialist member of panel in this area, scores and ranking of successful candidate and himself and in what area of "community development" successful candidate scored more than him.
- 18 The post was an educational one in that the respondent employer is an establishment for Further Education. The purpose of the post was to widen access to Further Education and increase partnership in it - taking courses out to the community - to rural areas, contacting groups and identifying courses relevant to the community, liaising with academic staff and setting up appropriate courses and finding funding for them. It is clearly a matter for the respondent to decide what the post entails. An applicant may have views on what he/she thinks it should entail but it is the employer who decides. The applicant in the view of the tribunal was not in a position to impose his view of "community development" and expect the panel to accept it.
- 19 We had copy note of a telephone conversation on 2 July 2002 between B. McAlorum and D. Smith in which D. Smith's comments re applicant and successful candidate and post were noted as:
- .20 The applicant took issue with Mr Smith's comment: "Managing someone like that" and felt it was a comment about him being difficult to manage by someone above him especially by the two women managers to whom he would have been reporting (M/s R Mitten Centre Manager at Newcastle Campus and M/s Lorraine Girvan, Senior Lecturer, New Course Development, Ballynahinch Areas) and that it showed that the panel and particularly D. Smith who would have been his line manager, wanted someone easier to manage, in short the successful female candidate. The tribunal was not clear whether the applicant was suggesting the successful candidate was a manageable person or that she was manageable because she was female.
- .21 The applicant claimed there was a female ethos and a gender imbalance in the Institute, which contributed to the successful candidate being chosen because of her sex. The tribunal was not persuaded this was correct, particularly in the area in which the post fell. The post was a new one and did not have a previous female holder. While it is correct the post holder will report to two female managers, the line manager is male. The respondent said the post was at Senior Executive level and while it was not a management post, it fell into the category of Managers & Professional where there was no evidence of gender imbalance. The applicant suggested it fell into Clerical, which historically is predominately female. The tribunal preferred the respondent's classification.
- The tribunal considered the submissions made to it by the applicant and by the respondent's Counsel.
- The relevant legislation is as follows:
- Following the case law in particular the decisions in Shamoon –v- Chief Constable of the RUC [2003] ICR 337 (HL) and Barton –v- Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332 the applicant must prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an unlawful act of discrimination against him, that is (i) less favourable treatment (ii) on ground of his sex. The law requires a comparison between treatment afforded to persons of different sex and it is for the applicant to prove less favourable treatment, that a female in the same, or not materially different circumstances, has been treated differently.
- The tribunal considered the following specific complaints made by the applicant unfounded:
- .1 While under its Procedures the panel should have allowed itself thirty minutes preparation time before commencing the interviews, the fifteen minutes was adequate for the matters discussed. The tribunal does not draw an inference that the time was shortened because the panel had already made its choice, particularly as none of the candidates was personally known to the panel members.
- 2 While the award of 3 marks for an IT qualification may have disadvantaged the applicant who had IT experience, it also disadvantaged Mary McMahon who had IT experience and said so in her applicant form, and Siobhan McCusker who had a degree in Computer studies. None of the candidates was informed that 3 marks were being awarded for an IT qualification. There was no reason why they should have been informed. The tribunal was satisfied the award of 3 marks for an IT qualification did not amount to less favourable treatment of the applicant on grounds of his sex. It did not accept it was done as a deliberate ploy to reduce the applicant's marks.
- 3 It is correct the applicant's total score from each panel member was not counted up. The total scores of the other candidates from each panel member were not counted up. In short the totals were not aggregated. However each panel member's total score was used for ranking purposes and the successful candidate and reserve were decided upon after panel discussion. One of the panel members, J. Quinn, did not add up the applicant's total correctly. Her total for the applicant was 65 instead of 69. The fact that scores were not aggregated applied to all candidates. If scores had been aggregated the successful candidate had the highest score of 193 points and the applicant, using his corrected score from J. Quinn, and the reserve had the same score of 189 points. Did the incorrect total of J. Quinn amount to less favourable treatment of the applicant? If we ask why it happened the answer is that it was a mistake. There was nothing to suggest it was other than a genuine mistake. There was no evidence that it was a deliberate mistake on grounds of the applicant's sex. Did the effect of the mistake mean that the applicant was less favourably treated than the successful female candidate? Clearly not as J. Quinn had scored the successful candidate higher than both the applicant with his correct score and the female reserve candidate? Did the effect of the mistake mean that the applicant was treated less favourably than the female reserve candidate? Taking into account the notes of the panel discussion and their evidence to the tribunal, the tribunal was not satisfied the applicant was treated less favourably than the reserve candidate either by J. Quinn or by the other two panel members. There was discussion of all 3 candidates by the panel and the total of the scores of the panel members was not the determining factor in deciding the successful candidate or the reserve.
- 4 In conclusion the tribunal was not satisfied that the applicant had proved on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent had discriminated against him on the ground of his sex in its appointment of a female to the post of Community Development Officer or in its appointment of a female reserve. It therefore dismisses his application.
CASE REF: 2040/02
APPLICANT: Robert Anthony McLoughlin
RESPONDENT: East Down Institute of Further & Higher Education
The unanimous decision of the tribunal is that the applicant was not unlawfully discriminated against on grounds of his sex and his claim is therefore dismissed.
Appearances:
The applicant appeared in person.
The respondent was represented by Ms Anne Finnegan Barrister-at-Law, instructed by Mr Peter O'Rawe, Solicitor of Education & Library Boards Legal Service.
The reasons for this decision are given in extended form, being an issue under the Sex Discrimination (NI) Order.
(a) The interview did not reflect the job description.
(b) That he was not given a proper interview; his score was not counted at the end, figures in the Assessment and Grading forms were changed and rounded up to accommodate the panel's choice, questions asked at his interview were paraphrased, his interview was hurried and abrasive, the chairman exercised undue influence over the other two panel members in the final selection.
(c) The application form did not state 3 points would be given for an IT qualification and this was introduced after the interviews in an effort to sustain marks and have a female appointed.
(d) The female reserve candidate did not have higher marks than he had and was appointed without discussion or consideration of his scoring.
(e) His experience in public and voluntary service, working with community groups, teaching in the East Down Institute was superior to that of the successful candidate who had 6 month work track experience and limited voluntary experience and had not worked in the area of community development or any other area in the past 8 years.
(f) There was a gender imbalance and a female ethos in the respondent body.
The respondent in its appearance presented on 25 October 2002 denied sex discrimination; denied the applicant had not been given a fair interview or that the interview did not reflect the job description or that it was fashioned to suit the successful candidate; stated that all candidates were treated equally at interview and that the successful candidate was the most suitable for the post in light of her performance at interview; that it was incorrect to state the successful candidate had not been employed in the area of community development or any other areas for the last eight years and that it was the view of the interviewing panel that her previous experience adequately equipped her for the post.
Community Development Officer (Permanent full time)
To support the Centre Manager, Newcastle Campus and Senior Lecturer: New Course Development (Ballynahinch areas) in bringing the Institute into a closer working relationship with the local community by seeking training and development opportunities and community development projects for the Institute. Applicants must hold a degree level qualification and be able to demonstrate an understanding of local community and voluntary sectors including the knowledge and needs of community groups.
The advertisement was also placed in the Down Recorder.
(i) Degree level qualification.
(ii) Able to demonstrate an understanding of local community and voluntary sectors including the knowledge and needs of community groups. It was desirable that applicants should be IT literate and familiar with office applications of new technology.
3.0 This was a new post.
(i) What experience can you recount that demonstrates your knowledge of the local community and voluntary sectors?
(ii) How would you go about creating a plan for the development of the Institute's community provision that will lead to increased enrolment?
(iii) It is important that community courses are accredited. What knowledge do you have of the accreditation process?
(iv) What is your knowledge of the alternative funding streams offered by, for example, the Peace 2 programme, and how would you go about seeking funding from such sources?
(v) You have set up a basic IT course in a community hall and the night before it starts you receive a phone call from the lecturer that they are unable to take the class. What would you do?
The tribunal was satisfied these questions did reflect the job description.
These additions, particularly the marking for an IT qualification, were agreed before the start of the interviews. This is confirmed by the Personnel Manager's note. The tribunal did not accept the applicant's suggestion that the marking for an IT qualification was added after the interviews. It noted that, under the column headed "Question" in the Assessment & Grading form, the words "App. Form" were opposite IT Literacy and "Possible" mark of 5 were in typescript not in handwriting.
It did however agree with the applicant that this particular addition of 3 marks was arbitrary and did not evaluate the level of IT qualification or familiarity with office applications of new technology or give credit for IT experience however substantial. It was suggested by the respondent that applicant should have made reference in his application form to his experience and also in his interview. The applicant maintained he had referred to it in his interview. The tribunal accepted he did make indirect reference in his interview but this did not help him to get the 3 marks. Mention in his application of his experience would likewise not have gained him the 3 marks which the panel were awarding only for an IT qualification of some kind.
The tribunal has taken the following information about these candidates from their application forms and also in the case of the applicant from his evidence.
The applicant had worked for the N.I.H.E. from 1977-1999 and prior to his redundancy was Special Needs Officer and Senior Housing Officer. In course of his employment he had experience of team leading – advice/grants/administration/training; public liaison – establishing tenants' groups; community self-help; mediation community conflict. He was a board member and volunteer of the Open Door Housing Association. He had lectured at the Respondent Institute in 1997 on Care in the Community – two sessions of two hours per week for twenty weeks.
Loretta McDonnell, who was living in Warrenpoint, had completed a six month job placement with Southern ITeC Ltd in Newry from January to July 2001 as Events Organiser and Resources Officer and had assisted Community Development Worker liaising with key community groups and agencies and had successfully completed several funding applications. She had two years experience as a teacher of children with special needs and traveller children 1991-1993. She had thirteen years voluntary experience on local committees and had contact with EGSA and WEA organising courses in the community.
Siobhan McCusker was currently employed by Springvale Training Ltd, a community training organisation, as a Learning Facilitator providing access to ICT and basic skills courses to various groups including community groups, having previously worked with this company as employer liaison officer securing placements for jobskills students. While at university she had done market research for a training organisation which was used to obtain funding.
The above information demonstrates that all three candidates had experience relevant to the post, albeit differing in terms of length and variety. The tribunal could not put itself in the shoes of the respondent and decide which experience was most relevant. It accepted that having decided that the candidates had met the required criteria, the panel were entitled to base selection on the answers to the questions at interview.
Under Essential qualifications the wording of no (ii) "Able to demonstrate an understanding of local community and voluntary sectors including the knowledge and needs of community groups" clearly suggested general local knowledge rather than knowledge of the specific local area.
The applicant attributed particular significance to the inclusion of the word "the" in Q1: "What experience can you recount that demonstrates your knowledge of the local community and voluntary sectors"? The tribunal did not agree. Its view was that had the question been "What experience can you recount that demonstrates your knowledge of the local community"? the meaning would have been consistent with knowledge of the specific local community. Taking the question as a whole however the tribunal did not accept it meant knowledge of the specific local community and voluntary sectors. This was supported by the fact recruitment was not limited to the local area in that the position was advertised in the Belfast Telegraph as well as locally.
In the assessment and Grading sheets marks for Q1 are included in first box, which is headed Qualifications, under Marketing along with Q's 2 and 4 and under Institute Programme and in second box, which is headed "Specialist Knowledge" under Local Community.
Under "Marketing" D. Smith gave 1 extra point to the successful candidate and marked the applicant and the Reserve the same. J. Quinn gave the same marks to all three. B. McAlorum gave 1 point less to the Reserve. Under "Institute Programmes" D. Smith gave all three the same marks, J. Quinn gave an extra point to the successful candidate and B. McAlorum gave 1 point less to the Reserve.
Under Local Community the applicant was scored:
4 marks by D. Smith who commented "Knowledge offered from housing association rather
than local knowledge."
7 marks by J. Quinn who commented "Has knowledge of Newcastle and rural area".
8 Marks by B. McAlorum who commented "Outlined knowledge of local community eg working in area".
TOTAL marks 19.
All 3 panel members acknowledge he had worked in the local area.
The successful candidate was scored:
6 marks by D. Smith who commented "Wide community involvement".
8 marks by J. Quinn who commented "Good local knowledge".
8 marks by B. McAlorum who commented "Strong local community knowledge".
TOTAL marks 22.
The reserve candidate was scored:
4 marks by D. Smith with comment "Reasonable awareness mostly through learn direct work etc. Belfast based".
5 marks by J. Quinn with comment "Little Knowledge"
6 marks by B. McAlorum with comment "Little evidence of local community but relevant community experience"
TOTAL marks 15.
Under Overall suitability – fit job description – applicant was scored:
5 marks by D. Smith with no comment.
8 marks by J. Quinn with comment "Would be very suitable due to public Authority experience and voluntary involvement. On boards of Vol. organisations. Therefore involved at high level sitting on Boards".
8 marks by B. McAlorum with comment "Knowledge & experience relevant extensive experience outlined".
TOTAL marks 21.
Successful candidate was scored:
5 marks by D. Smith with no comment.
8 marks by J. Quinn with no comment.
8 marks by B. McAlorum with comment "Good local knowledge. Broad roles 13 yrs".
TOTAL marks 21.
Reserve candidate was scored:
5 marks by D. Smith with comment "Able – some community experience in an educational context".
7 marks by J. Quinn with comment "Would be very suitable. No knowledge of East Down area but all other requirements".
7 marks by B. McAlorum with comment "Absence of local knowledge but other experience and skills relevant".
TOTAL marks 19.
While the panel notes showed there was emphasis on specific local knowledge, the comments and marks were consistent with views given in evidence by the panel members.
Under "Accreditation of Courses" D. Smith gave 5 points each to the applicant and the Reserve but only 2 points to the successful candidate: J. Quinn marked the applicant 7, the Reserve 6 and the successful candidate 5: B. McAlorum marked the applicant and the Reserve 8 and the successful candidate 4.
Under "Interpersonal Skills" reflected by answers to all questions: in relation to "communication skills" D. Smith and J. Quinn scored all three candidates the same and B. McAlorum gave 1 point less to the Reserve. Under "Organisation Skills" D. Smith gave successful candidate 4 points and applicant and Reserve 6 points each: Both J. Quinn and B. McAlorum scored all three candidates the same.
Under "Attitude/Motivation/Flexibility the panel scored all three the same and under "Overall Suitability" D. Smith scored all three the same and J. Quinn and B. McAlorum gave 1 point less to the Reserve.
The tribunal did not find any evidence of deliberate under or over marking in respect of the three candidates. Comments indicate that the applicant's experience was taken into account. The tribunal did not find any evidence that the applicant's interview was unfair.
It was unfortunate this mistake, unlike the mistake over Mary McMahon's marks for IT, was not discovered till proceedings were underway and the applicant sought Discovery of the Marking sheets. The respondent argued that the mistake did not matter in the selection, as marks were not aggregated. The applicant clearly felt he was disadvantaged by the mistake.
The total marks given by each panel member were:
D. Smith 45 to applicant, 49 to successful candidate, 49 to reserve candidate
J. Quinn 65 (69) 72 69
B. McAlorum 75 72 71
TOTALS 185 (189) 193 189
J. Quinn said of Siobhan McCusker "lacked local knowledge. Highly qualified".
Applicant "Suitable due to vol. Exper. Public service – May lack ground knowledge. Has local knowledge".
Loretta McDonnell "Has local knowledge. Range of exper. Work On
ground. Institute experience. Very suitable".
D. Smith said "top two of Siobhan McCusker Lorretta McD. Could do post. Siob.
Lacked local knowledge but could come up well qualified. Could see
Lorretta go out and deal with people. Both tied at 49 points" "Rbt McL. endorse J. Q's comments. Management community; not a doer. Could not score on IT skills 45 score. Ground level effective".
"V clear Lorretta McDonagh ahead. Siobhan McCusker 1st reserve".
B. McAlorum said "My comments given. Similar to above. Reference to Rbt McLoughlin and the level of his experience. More of a question of ground level involvement. Both Lorretta and Siobhan were highly placed in my marking. Would be in agreement that above candidate be recommended and agree with reserve candidate as well". He continued "In general absence of local knowledge from most candidates. Role of post to go out and be active at ground level".
The panel in their evidence to the tribunal suggested they were not saying the applicant did not have ground level experience but rather that his answers did not indicate a ground level approach.
In her evidence J. Quinn said the applicant told her how the job should be done whereas successful candidate told how she would do it. The tribunal found this was a very significant statement in relation to selection.
"Relevant to others good management background. Management perspective. Appointee had more active community development activity – educational slant, educational training slant evidence of on the ground activity and background.
Managing someone like that
Extensive local community involvement
Some local based practical experience of community groups.
Training/Educational
1. Senior lecturer new course development (strategy)
2. More active community type role Centre Manager
"doing of the post ---"
on the ground practitioner
local community voluntary sector, flexibility illustrated skills to manage more fully on the ground experience bidding, liaison, etc
involved in community groups
some experience of what we were looking for
Housing Association ok but education.
B. McAlorum met with the applicant following this. The applicant repeated his points re the interview:
1. No questions on community development.
2. No opportunity to ask questions.
3. Hands on knowledge – local
B. McAlorum referred generally to matters as discussed with D. Smith. He was aware applicant was not satisfied. He felt applicant's understanding of role of post was at variance with what panel were looking for.
Regarding the comment about the applicant, D. Smith's explanation was that he meant the applicant with his management experience could manage someone like the Community Development Officer i.e. his experience was at a higher level.
B. McAlorum's explanation was that the applicant in a management role was not what was needed. This was a reasonable explanation.
Articles 3 and 4 of the Sex Discrimination (NI) Order 1976 provide –
(1) A person discriminates against a man in any circumstances relevant for the purposes of this Order if:
(a) on the ground of his sex he treats him less favourably than he treats or would treat a woman.
Article 7 – Basis of comparison –
A comparison of the cases of persons of different sex or marital status must be such that the relevant circumstances in the one case are the same, or not materially different, in the other
Article 8 Discrimination by Employers –
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, or
(b) in the terms on which he offers him that employment, or
(c) by refusing or deliberately omitting to offer him that employment.
Article 63A –
Where at the hearing of a complaint to an industrial tribunal, the complainant proves facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent:
(a) Has committed an act of discrimination against the complainant which is unlawful by virtue of Part 111 (Discrimination in Employment Field), 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.
The applicant's case falls under Article 8(a) and for the purposes of Article 7 the successful female candidate and the female reserve are appropriate comparators.
Where inferences of less favourable treatment on grounds of sex can be drawn the burden of proof moves to the respondent who must prove on the balance of probabilities that the treatment was "in no sense whatsoever" on grounds of sex. The respondent must provide not only an explanation for the facts but an adequate explanation backed by cogent evidence.
(a) the interview did not reflect the job description;
(b) that he was not given a proper interview: figures in the Assessment & Grading forms were changed and rounded up to accommodate the panel's choice; questions asked at his interview were paraphrased; his interview was hurried and the chairman was abrasive; the chairman exercised undue influence over the other two members in the final selection;
(e) his experience in public and voluntary service, working with community groups, teaching in East Down Institute was superior to that of the successful candidate who had 6 month work track experience and limited voluntary experience and had not worked in the area of community development or any other area in the past 8 years;
(f) there was a gender imbalance and female ethos in the respondent body.
The tribunal refers to its findings in paragraph 3.
Chairman:
Date and place of hearing: 19-20 November 2003, 15-16 January2004 and 11-12 February
2004, Belfast.
Date decision recorded in register and issued to parties: