Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2005/1146_03.html
Cite as: [2005] NIIT 1146_03, [2005] NIIT 1146_3

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1146/03

CLAIMANT: William Watson

RESPONDENT: Ministry of Defence

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondent and that the claim that he was sexually discriminated against, contrary to the Sex Discrimination (Northern Ireland) Order 1976, is dismissed.

Appearances:

The claimant was represented by Mr M McEvoy, Barrister-at-Law, instructed by R M Cullen & Son, Solicitors.

The respondent was represented by Ms D McBride, Barrister-at-Law, instructed by The Crown Solicitor's Office.

Reasons

Sources of evidence

The tribunal received a witness statement from the claimant and heard evidence from him. For the respondent witness statements were received from Mr M Ross, Miss G Quinn, Mr J B Butcher and Colonel P D Fraser-Hopewell. The tribunal also heard the oral evidence of these witnesses. The tribunal also received a bundle of agreed documents.

The claimant's claim

In his claim the claimant claimed that he had been unfairly dismissed, in that he had been accorded temporary and geographical (T&G) promotion to the post of Civilian Personnel Adviser, 3^rd Infantry Brigade, from 18 December 2000. The temporary promotion had extended significantly beyond the normal six months period which is referred to in the relevant Regulations. The claimant claimed that because he had been in this temporary post for over two years he should have been confirmed in the post at that grade of C2, because his period as a T&G secondee had run for more than two years. Consequently his consequent dismissal from his post was an unfair dismissal entitling him to compensation for unfair dismissal.

The second part of the claimant's claim was that he was discriminated against on grounds of his sex, in that the respondent appointed a woman to the post to which he aspired. This woman had been given priority treatment in her interview for the C2 post with 3^rd Infantry Brigade, as she was a priority candidate due to her returning from the Falkland Islands. The claimant, in his evidence, also sought to sustain the argument that there were more returning female applicants for these Priority Postings than male equivalents.

The respondent's response

The respondent contended that the claimant had not been dismissed from his post. He had been given T&G promotion to the post above referred to, which promotion had continued for somewhat over two years, but he had been informed on a regular basis that this was a temporary posting and could not be considered permanent and the respondent was perfectly within its rights, under the terms of the contract between the parties, to return the claimant to his previous post. So far as the sexual discrimination aspect of the case is concerned, the respondent denied that the claimant had been discriminated against on the basis of his sex in the interview. The statistics regarding the number of returning priority candidates from the Falkland Islands and other operational theatres did not support the claimant's claim that more women returned from these postings than men.

The issues before the tribunal

The tribunal considered the two aspects of the claim, namely the claim for unfair dismissal and the claim for sexual discrimination. So far as the unfair dismissal claim is concerned the evidence of the parties was to a great extent in accord and there was very little dispute on any detail of the account of the events leading up to the claimant bringing these proceedings

The issue in the sex discrimination claim was firstly, whether the interviews of the applicants for the post were conducted in such a manner as to favour the female candidate. Secondly, whether there were indeed more females returning from foreign postings with priority status than males. On these issue the parties did disagree.

The tribunal's findings of fact

1. The claimant, who was a Band D Clerical Officer, had been promoted on a T&G temporary promotion to the post of a Band C Civilian Personnel Adviser to 3^rd Infantry Brigade on 18 December 2000.

2. T&G promotion was a short-term measure which would not normally extend beyond six months. In accordance with the Regulations this T&G promotion was confirmed in writing and confirmed as a temporary appointment and subject to the reversion of the claimant to his substantive grade at any time without warning. Furthermore, as the T&G promotion in this case extended beyond six months, written reminders of the terms of the promotion were issued on six-monthly intervals to the claimant.

3. Almost immediately after the claimant's appointment to the T&G post, an advertisement was drafted to fill the post on a full-time basis, although no action was taken by the Civilian Personnel Adviser, HQ Northern Ireland, as at that time an ongoing manpower review was being conducted to see what staffing was required throughout the service. This was personally confirmed to the claimant by Mr Ross who was the Officer with overall responsibility for the implementation of Civilian Personnel Policy in Northern Ireland, when the claimant met Mr Ross at the meeting on 21 February 2001.

4. Eventually the Civilian Personnel Adviser post at HQ, 3^rd Infantry Brigade, on Pay Band C2 was advertised with a closing date of 3 January 2003 and the claimant himself applied for the post.

5. Despite the fact that the claimant was in Band D and the job being advertised was Band C, the advertisement stated that a Band D holder could apply. The Regulations concerning substantive promotion in this group (Chapter 2, Section 1 at 1.2) stated:-

"Candidates for substantive promotion, whether by review or job advertisement, must be assessed against the competences of the grade in question as well as against any specific requirements for the post being applied for."

6. Under the Regulations governing postings in the Service, reference is made to a group known as 'Priority Postings'. In filling a post, line managers have to first consider these Priority Postings, who are defined in the MOD Personnel Manual, Volume 3, Chapter 2, Section 3 in 3.4, as follows:-

"Priority Postings

Line managers must first consider surplus staff and those available for other reasons, for example, compassionate cases, staff returning from overseas, staff returning from maternity leave or career breaks, in the substantive grade of the vacancy prior to taking any advertisement action."

Consequently if any person applied as a Priority Posting in response to an advertisement that person does have to be given such priority.

7. In response to the advertisement for the position, which the claimant was then currently acting-up into, a Priority Posting application was received, being a woman who was returning from a posting in the Falkland Islands.

8. On 9 January 2003 the claimant received a letter from CPANI confirming to him that the Priority Posting had been received and that the recruitment action would therefore be suspended. A certain amount of confusion then arose, but ultimately it was decided that despite the fact that the Priority Posting application had been received, the respondent decided to hold an interview for the post in any event. This was to be an interview of three people, namely the Priority Posting candidate, the claimant and another candidate. At first the respondent informed the claimant that each candidate would be interviewed in the same manner, in what was described as 'a level playing field', ie each candidate would be interviewed using the same questions. However it was subsequently explained to the claimant that this was not possible and that the candidates who were not of the appropriate C Band, ie including the claimant, would be tested on their competence for the post and asked questions to determine their suitability to the broader pay band in general. Thus the Priority Posting candidate (the female) who was already of C Band status did not have to answer the competence for post questions but the claimant and the other candidate did.

9. The interviews were held on that basis and the priority candidate was successful. This was Ms Fiona Saville, who was a substantive pay band C2 and who was unmarried and returning from an operational overseas tour.

10. After the appointment of Ms Saville, the claimant was asked if he would stay on in the T&G job for a further period of six months to facilitate the return of Ms Saville and to allow her to take a holiday. This the claimant agreed to do.

Facts found from the evidence concerning the sex discrimination aspect of the case

With regard to the interviews the facts have been stated above.

Various statistics of male and female personnel who were Priority Posting candidates for posts at the time of the events in this case showed that out of 228 such candidates, 165 were male, 63 were female, 157 were married and 71 were single. Subsequently figures since 1 April 2004 supported these earlier statistics, in that males still form the bulk of the Priority Posting candidates.

The legal background for the unfair dismissal claim

Under Article 127 of the Employment Rights (Northern Ireland) Order 1996, an employee is dismissed by his employer if:-

"(a) The contract under which he is employed is terminated by the employer (whether with or without notice)."

In this case there has been no dismissal as the claimant is still employed by the MOD. However the tribunal's attention was drawn to the case of Hogg v Dover College [1990] ICR 39 and to the case of Alcan Extrusions Limited v Yates [1996] IRLR 327. In both those cases employees were faced with fundamental changes to their contracts of employment which went to the very basis of the employment contracts under which they had previously worked. The tribunal in the Alcan Extrusions case, following the earlier decision in the Dover College case, held that this was one of an exceptional group of cases, where repudiation of the contract constituted a dismissal, even though the employees remained in their posts.

The claimant also referred to legislation concerning temporary and casual staff who obtained employment protection once they have served more than 12 months in a post. This however did not appear to be relevant to the case before the tribunal, as the claimant was a permanent member of the Service, acting-up in a different level, under clearly defined guidelines.

The legal background for the sex discrimination claim

Insofar as the sexual discrimination aspect of the case is concerned, the claimant must prove that the treatment which he received from his employer in respect of the application for the post was different to the treatment which the successful female candidate received and that this treatment was to his detriment. This is the direct discrimination part of this claim. The indirect part requires the claimant to show that more women became Priority Postings than men and that this means that men aspiring to jobs in competition with Priority Posting candidates are disadvantaged.

The decision of the tribunal

1. The unfair dismissal claim

The tribunal holds that the claimant was acting-up under the Regulations in the C2 post which had become vacant. Although the Regulations stated that this acting-up would normally last for only six months, there was provision which stated "where T&G promotion extends beyond six months, a written reminder must be issued at six-monthly intervals". (MOD Personnel Manual, Volume 4, Section 2, 2.1.) This clearly suggests that in certain circumstances the acting-up can be extended for a longer time and no ultimate time limit is set out in the Regulations.

2. The claimant's argument that by being in post for over two years he somehow acquired the senior post, by virtue of the fact that he was in-post for such a long time, does not find support with the tribunal. The Regulations clearly state that promotion can only be achieved through the job advertising process or promotion reviews. Individuals have to demonstrate that they are capable of undertaking a range of jobs in a higher group before they are promoted to the higher group. The tribunal cannot accept the contention of the claimant that by merely being in a post, for admittedly quite a long period, can circumvent the clear guidelines laid down by the respondent in their Regulations concerning the movement between the various banded groups.

3. The claimant clearly understood that the Priority Posting candidate would, if he or she was suitable for the post, automatically receive the post. The tribunal does have considerable sympathy for the claimant, in that although he understood this situation, he was confused by the process which took place, namely that he was offered an interview, along with the priority candidate and another person, when he was not really expecting that. He failed to understand that this interview would be on a two-stage basis, namely to see if he was competent for the movement up to the C Band and then to see whether he was a better candidate than the Priority Posting candidate, whilst the Priority Posting merely had to show that she was suitable for the post, having already gained the C Band. This does seem to the tribunal somewhat of a charade as the Regulations clearly stated that no matter how good the claimant had been in both interview, the Priority Posting candidate should have been offered the post. It would appear that the respondents were in breach of their own Regulations in this respect, although it did not ultimately signify as the claimant did not reach the necessary level to move up to the C Band. The respondents broke their own rules, as presumably they felt guilty at the length of time that the claimant had been in the acting-up position. However this only achieved an element of confusion which possibly led to this case being brought before the tribunal. However, the tribunal finds that the claimant was not dismissed and consequently his claim must fail.

4. So far as the sex discrimination claim is concerned the tribunal are satisfied that there was no evidence of any sex discrimination by the respondent. The reason for the different interviews given to the candidates is a proper and fair reason. No matter whether the Priority Posting candidate had been a man or a woman, he or she had to be given priority. The evidence before the tribunal is that in fact more males are Priority Posting candidates than females and therefore the contention that the priority system worked against the claimant is not well-founded.

5. The tribunal gave further consideration to the interviewing of the candidates and the length of time given to the candidates for preparation for the interview, but hold there was no evidence of sex discrimination involved in the fact that the claimant had a slightly shorter period to prepare for the interview than the successful candidate. The clear fact was that the interviews were different is as the claimant had to deal with the part of the interview in relation to his move up to Band C, whilst these questions did not have to be asked of the successful candidate.

6. The sex discrimination claim is therefore dismissed.

Chairman:

Date and place of hearing: 5 – 7 April 2005, Belfast

Date decision recorded in register and issued to parties: