Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF: 02514/99 SD

CLAIMANT: Rosaleen Carlin

RESPONDENT: Social Security Agency

DECISION

The unanimous decision of the Tribunal is that the Claimant was not discriminated against on grounds of her sex contrary to the Sex Discrimination (NI) Order 1976 as amended and contrary to European Law.

Appearances:

The claimant was represented by Mr Gerry Grainger Barrister-at-Law, instructed by Savage & Co Solicitors.

The respondent was represented by Mr Piers Grant Barrister-at-Law, instructed by The Crown Solicitor's Office.

THE ISSUE

The issue for the tribunal to decide was whether the claimant had suffered unlawful discrimination on grounds of her sex in not being appointed to the post of Manager of Human Resource Policy and Development of the Social Security Agency ( " the SSA") in March 1999, either in the arrangements made for the advertising of and recruitment to the post or in the subsequent decision to appoint her male colleague, Pat Magee, to the post rather than the claimant.

FACTS

1. The tribunal read witness statements and heard evidence from the claimant Mrs Carlin, from Chris Thompson (Chief Executive of the Social Security Agency), Frank Duffy (Director of Personnel at the SSA) and Mrs Pauline McCloy who had been the three members of the interview panel for the post at issue in the case. Evidence was also heard from Pat Magee the successful candidate, and from Jim Johnston (who was Personnel Manager at the time of the appointment), Susan Hunter and Kevin Fox both of whom were involved in the recruitment and selection process at issue. The tribunal also had opened to it a substantial bundle of documents. Having heard and considered all the evidence, both written and oral, the tribunal makes the following findings of relevant facts.
2. The claimant was a Deputy Principal in the Northern Ireland Social Security Agency, an Executive Agency of the former Department of Health and Social Services. At the time of her complaint she had been employed by the department for some 28 years. In June 1997 the claimant, along with a number of others, was successful in a service-wide competition for promotion to Administrative Grade 7. This was the first competition of its kind within the Social Security Agency. Having been successful in this first stage, candidates were eligible to apply for promotion to Administrative Grade 7 posts as and when they arose.
3. In October 1995 the claimant had been appointed temporarily to Grade 7 as acting Personnel Officer and subsequently as Project Manager to take forward the implications of the Agency's Human Resource strategy. In September 1998 as a result of a conversation with her line manager, Jim Johnston, the acting Personnel Director, the claimant became aware that decisions had been made to promote Pat Magee temporarily into a permanent Grade 7 post in the Agency's Training and Development Unit. Mr Magee was a Deputy Principal in the Agency's personnel branch and had been one of the successful candidates in the competition for promotion to Grade 7. Mr Magee, unusually, retained responsibility for his Deputy Principal post in the Agency's personnel branch while temporarily promoted. The claimant found this unusual and suggested to Mr Johnston that she could equally have taken additional responsibility for training and development or certain aspects of it. She asked if this was possible. It was pointed out to her that she was already temporarily promoted and that this would not be possible. Mr Magee temporarily moved into the Training and Development Post from 21^st September 1998. Mrs Carlin was concerned that the temporary promotion of Pat Magee to the training post would place him at an advantage in relation to the subsequent competitions. She pointed to the fact that three males , temporarily promoted to Grade 7 posts within the Department, had been successful in being appointed to the permanent posts.
4. In the Autumn of 1998 a decision was taken to re-align the Personnel Officer and the Training and Development Officer posts which at the time were respectively filled by Eoin Neeson (and subsequently Jim Johnston on a temporary basis) and Pat Magee . This exercise resulted in the creation of the post of Manager of Human Resource and Policy Development ("the post"), which would deal with policy in those areas and a separate Grade 7 Personnel Officer post with operational responsibility. Because the project which Mrs Carlin was managing was due to be completed the following Spring and the Human Resource strategy, once in place, would not require a full-time manager, that function was to be realigned as part of the process and be subsumed into the policy post.
5. Mr Magee, who had responsibility for the Trawls Section in Personnel, wrote to Susan Hunter on 6 October 1998 to advise that the vacancy notice for the post of Manager for Human Resources Policy and Development was to be trawled. Because he had a potential interest in the post he said in his memo "because of my personal interest I have been told to keep a low profile and not to become actively involved in the competition. Perhaps as a starting point you would check whether TGU and the Training Unit hold a job description". His note continued by suggesting she liaise directly with "Eoin Neeson on this one, but keep me informed of developments as part of the monthly update".
6. A draft outline of the duties and responsibilities in these respective posts were attached to a minute from Kevin Fox to a Mr Frank Duffy, Mr Jim Johnston, Mr Pat Magee and Mrs Rosaleen Carlin with an invitation for their comments on 23^rd October 1998. The vacancy notice for the post indicated that it was a new post.
7. Mrs Carlin thought that since she was likely to be an applicant for the post she should not comment on the proposed job description and did not respond. She gave evidence that she had objected to Mr Magee and herself being consulted about the vacancy notice and that she had raised the question of the potential overloading of the Human Resource post and therefore under-loading of the personnel post. There was however no record of these objections although the claimant indicated she had raised her concerns with both Jim Johnston and Eoin Neeson. Mr Magee however did respond to the minute by his own minute of 27 October 1998 where he specifically raised a number of practical issues in relation to the post and also raised the issue of the loading of the post. He raised the question of whether a job analysis was necessary. Kevin Fox referred this to Eoin Neeson, who advised that Efficiency Unit approval was not required and no job analysis needed to be done. Mr Neeson unfortunately died some time after this recruitment exercise and was not available to give evidence to the tribunal.
8. The claimant recalled objecting, possibly in response to Mr Fox's minute of 22 October 1998, to what appeared to be an overloading of the Training and Development post and an under-loading of the Personnel post and suggesting a job analysis should be undertaken. There was however no written record of this. She was clear however that her existing post as Project Manager for Human Resource Strategy was the third post involved in the alignment process. That post was due to end in March 1999. Susan Hunter, who was Kevin Fox's line manager, had not been aware of this at the time of the recruitment exercise. Other witnesses noted however that because Mrs Carlin's project on Human Resource Strategy was drawing to a close, Human Resource Strategy would form a part of the responsibilities of the new post but would not warrant a fulltime post on its own once the strategy was in place. Susan Hunter, who held a certificate in Management Services and had experience in evaluating critically the content of posts from the point of view of organization, work management and effectiveness, had also looked at the content of the vacancy notice and did not consider it necessary to suggest a job analysis. In her view the exercise involved the realignment of two existing posts, neither of which was overloaded, and the absence of a job analysis did not invalidate the process.
9. The claimant alleged that Mr Magee had been involved in commenting not only on the job description but on the person specification in relation to the vacancy notice. There was no evidence to bear this out. Ms Hunter and Mr Fox were quite clear that Mr Magee had not been involved in this process as was Mr Magee himself and the tribunal accepts that Mr Magee was not involved in the preparation of the person specification. All of them confirmed they would consider it improper for any involvement by a potential candidate in the preparation of the personnel specification. Mr Duffy, Ms Hunter and Mr Fox all however considered it would have been appropriate for both Mr Magee and Mrs Carlin to make comments on the job description as both of them had expertise in the particular area and could comment knowledgeably on the functions to be carried out by the new post holder.
10. Eoin Neeson subsequently wrote to Frank Duffy, Pat Magee and the Claimant on 6 November 1998 referring to "our recent meeting", attaching a revised job description reflecting the discussion at that meeting and asking for their agreement. This note was forwarded on to Kevin Fox on 20 November with a note stating "Rosaleen, Pat and I are content with this. Would you please develop an appropriate vacancy notice asap." It was signed by Eoin Neeson. Mrs Carlin said she did not attend any meeting with the other members of the senior management team regarding this job description and indeed had had another lengthy meeting on 4 November, the day the meeting was scheduled. While Mr Duffy and Mr Magee were content they had attended a meeting on the job description, their recollection of this was based on Mr Neeson's notes. There were no minutes of the meeting produced, but Mr Neeson's two notes, one to all of the senior management team - including Mrs Carlin and which she did not deny receiving – and the other to Kevin Fox confirming that "Rosaleen, Pat and I are content with this" are inexplicable if the meeting did not take place and all of those named were not consulted. The tribunal is satisfied that some consultation, either in the form of a meeting between those referred to in Mr Neeson's note or by way of a discussion between him and the others concerned, took place. If Mrs Carlin was unhappy with the proposals at the time of the minutes in October and subsequently on 6 November 1998, she must have realised that to say silent implied her agreement to the content of the job description and yet she did not respond in writing to Mr Neeson's comments nor did she write to Kevin Fox or any of the more senior managers involved at the time.
11. The vacancy notice was subsequently prepared and issued in January 1999 after consultation with the Equal Opportunities Unit and also with the relevant union.
12. The selection criteria which had been identified for the post were as follows. There were seven essential criteria namely:

i. knowledge of or interest in Human Resources Policy;

ii. a good understanding of and strong commitment to the principles and practices of IIP (Investors in People);

iii. an ability to analyse complex issues against tight deadlines and present practical solutions in a well argued and concise manner;

iv. an ability to plan and manage work to achieve results focusing on priorities and objectives with a clear sense of direction;

v. a high level of drive and motivation and the ability to manage and motivate staff;

vi. an ability to communicate effectively, both orally and in writing with staff at all levels; and

vii. an ability to develop and maintain networks.

13. In addition to the essential criteria there were a number of desirable criteria identified as follows:-

i. At least two years practical experience gained within the last 5 years in a training and development environment:

ii. To have obtained a professional qualification in Personnel Management or training and development

iii. Two or more years practical experience gained within the last 5 years of 1 or more mainstream Personnel Management functions (e.g. recruitment, promotion, career development, performance, appraisals etc.)

iv. Practical Experience gained within the last 5 years of managing a programme of change

v. Practical experience of developing an IIP programme

vi. Practical experience gained within the last 5 years of developing HR polices.

14. The vacancy notice indicated that "If short-listing is necessary, desirable criteria will be applied". It was not expressly stated in the vacancy notice, but the panel indicated in their evidence and in particular Mr Duffy said that the desirable criteria would not be taken into account or used in assessing candidates otherwise. Mr Duffy commented however that he would expect a good candidate to demonstrate in replies to questions at interview how they met the desirable criteria.
15. At some point around this time, the date was unclear but after the issue of the vacancy notice, the selection panel was confirmed as Mr Chris Thompson, Chief Executive of the Social Security Agency, Mr Frank Duffy Director of Personnel at the SSA and Mrs Pauline McCloy, Director of Personnel at the Department of Agriculture and Rural Development. Both Mr Duffy and Mr Thompson were relative newcomers to the SSA. Mr Duffy had been appointed to the post of Director of Personnel, Planning and Information in October 1998, moving from a post in the Training and Development. Mr Thompson had become Chief Executive of the SSA in October 1997, having previously been Director of Corporate Services in the Training and Employment Agency.
16. Kevin Fox, who was responsible for the vacancy notice being prepared and the recruitment procedure for the post at issue, had used a questionnaire form used in other recruitment exercises for this post as well, in order to note quite a lot of details for the job. This was not strictly required by the process, but he considered it good practice. The questionnaire was not complete and had a few errors, for example it noted that all the panel had received training in criterion based interviewing, whereas the replies to the statutory questionnaire make it clear that only Mrs McCloy had attended a course specifically on criteria based interviewing. Both she and Mr Thompson had attended a course in Grade 7 Promotion Interviewing, all the selection panel had received some equal opportunities awareness training and Mr Duffy had been trained in Competence Based Recruitment Interviewing.
17. The claimant together with Mr Magee and a number of others applied for the post. An eligibility check was carried out on 12 February 1999 by two members of the selection panel namely Frank Duffy and Chris Thompson with Susan Hunter in attendance. All of the candidates for the post fulfilled the essential criteria and it was decided that all of the candidates would be interviewed. A number of those who had originally applied for the post withdrew and six candidates were interviewed.
18. A panel briefing was held on 23 February 1999 to discuss and seek agreement on the procedures to adopt in the selection board. All of the selection panel were present along with Susan Hunter. The record of the meeting shows that each panel member had already received a copy of Mr John Semple's memorandum of 10 December 1996, which detailed the areas for improvement in Civil Service selection procedures in the context of Fair Employment. The procedure however which applied to this particular selection process was set out in Civil Service circular CSC7/97 which specifically related to appointments to a Grade 7 post. That circular sets out the Stage Two guidelines for use by departments and agencies for promotion to Administrative Grade 7. It states that in terms of selection criteria, stage 2 will focus primarily on the requirements of individual posts rather than the core competencies already assessed in the open competition. The guidelines also state (paragraph 6) that it is important for the Departments and Agencies to follow procedures involving the following key stages:

a. Identify the Selection panel for the post

b. Prepare the job specification for the post

c. Define short-listing criteria

d. Decide and weight interview criteria

e. Prepare the vacancy notice and the application form

f. Agree and circulate the vacancy notice

g. Carry out short-listing of candidates as necessary

h. Carry out interviews, select and appoint the successful candidate

19. The guidelines go on to set out in some detail how essential and desirable criteria should be prepared. There are appendices to the guidelines giving model candidate assessment forms and "evidence sheets" to be completed at interview.
20. At the panel briefing weighting for the essential criteria were discussed. It was agreed that criteria (i) and (iii) were allocated 20 marks each, criteria (ii) and (iv) were allocated 15 marks each and criteria (v), (vi) and (vii) were allocated 10 marks each. It was agreed that the pass mark for each criteria was 50% of the total mark allocated to each criteria and rounded down. There was no dispute that the weighting of the selection criteria did not take place until some months after the selection criteria were agreed and three weeks after the competition actually closed. This meant that at the date when the weighting of criteria took place, applications had actually been received and had been seen by two members of the selection panel (namely Frank Duffy and Chris Thompson) at the eligibility check carried out on 12 February 1999. The forms had been anonymised, but the claimant contended the information in the forms meant that candidates were easily recognizable and this information, she argued, influenced the weighting of the criteria and the questions for the interview. Mrs McCloy, being from outside the SSA, was clear that she did not know the candidates, and looked at the weighting and criteria objectively and in the light of her experience in carrying out similar recruitment exercises for comparable posts in other departments. The tribunal accepts that the panel took into account the responsibilities of the post and the weighting applied to similar criteria in comparable posts. There was no evidence adduced to show that the weighting of the criteria had been in any was influenced by the panel's knowledge of the candidates for the post.
21. The panel members divided the responsibility for preparing questions between the three of them and each panel member prepared a lead question on at least 2 of the essential criteria with a number of supplementary questions being prepared as well. It was intended that the supplementary questions would be used to prompt candidates to provide further information in the event that their initial answer to the lead question was not sufficiently full. The questions were forwarded to the Chairman and sent on to the Personnel Branch in advance of the interview date. All the questions were framed in objective terms and there is nothing to suggest that the questions or any one of them was designed to favour one candidate over another.
22. In relation to the procedure and documentation to be used, all the panel members confirmed that they had been advised at interview training that one member of the panel should ask a question, a second should take notes on the answer on the "evidence sheet" and the third member should observe and not write while the candidate was answering questions. The intention was to ensure that the candidate could keep eye contact with members of the panel and not be faced with "writing heads". As a result of this notes were taken on replies given by candidates by one of the panel in relation to each question however each individual panel member did not note down their impressions of or assessment of the candidate. Instead this was done at the end of the interview by the chairman of the panel on a chairman's assessment form and an agreed mark was given to each candidate in relation to each criteria. There was no individual marking of candidates by the panel members and this process was only changed some time after this particular Grade 7 competition for the Manager in Human Resource, Policy and Development was completed.
23. The Circular, CSC 7/97, which specifically applies to Grade 7 Competitions and the Interviewing Panel Handbook produced by the SSA do not make any reference to the panel giving individual marks to each candidate, on the contrary both documents in their content and in the model forms attached, clearly refer to the practice of marks for each candidate being agreed by the panel and then recorded by the Chairman on marking sheets. The Equality Commission Code of Practice in relation to Recruitment and Selection procedures notes the desirability of panel member recording their individual views in relation to candidate's responses and giving individual marks.
24. The interviews for the post of Manager of Human Resource, Policy and Development took place on 4 March 1999. The claimant was interviewed along with 5 other candidates. The result of the interview was that Mr Magee was the successful candidate scoring a total of 83 points out 100. Another female candidate scored 72 points and the claimant was placed third in the selection procedure, scoring 70 points.
25. The claimant considered that she had been discriminated against on grounds of her gender in relation to this process. She believed that the selection criteria and the question about IIP favoured the successful candidate Mr Magee and that the failure of the Social Security Agency to identify a professional qualification in personnel management as an essential criteria discriminated against her.
26. In relation to the first question, which related to Human Resources Policy, the claimant first of all queried the criteria and suggested that the wording of the criteria, requiring the candidate to show "an interest or knowledge of HR policy" was not as stringent as the criteria in relation to Investors in People which required the candidate to show "a good understanding of and commitment to the principles and practices of IIP". Twenty marks were available for this criteria and Mrs Carlin and Pat Magee the successful candidate both scored 18 points.
27. In relation to the next question relating to an ability to analyse complex issues against tight deadlines and present practical solutions in a well argued and precise manner, candidates were asked to outline a situation in which they were given a complex issue to solve and how they went about it. Mr Magee scored 15 out of a possible 20 points. The claimant scored 13 points out of a possible 20 points.
28. On Investors in People ("IIP"), the question required the candidate to explain how he or she had or would go about preparing for his or her organisation for IIP assessment or reassessment. The claimant argued that since work on IIP was a substantial part of Mr Magee's daily work this question and criteria favoured him. The criteria however attracted 15 marks out of a total of 100 marks and was therefore rated as a middle ranking criteria. The claimant's specialism, Human Resources, was given higher weighting attracting a possible 20 marks. The claimant had been a "driver" for IIP previously and her particular department was about to undergo re-assessment for IIP. It was not therefore an unfamiliar concept to her and it was one of which she had particular experience. Mr Magee scored 14 out of a possible 15 marks. The claimant scored only eight marks.
29. In relation to planning, Mr Magee scored 13 out of a possible 15 marks, the claimant scored nine marks out of a possible 15 marks.
30. On the criteria relating to drive and motivation, Mr Magee scored nine out of a possible 10 points while the claimant scored six out of a possible 10 marks. Both scored equally well in communication and the Application scored eight out of a possible 10 marks on maintaining networks while Mr Magee was weaker on this, scoring six points.
31. The Chairman's overall summary on the Claimant's interview states that she was "very strong in Human Resource Policy, good knowledge of planning methodology and frameworks, could have used more focused examples onto the criteria. But overall a sound interview and well qualified". In their evidence, the panel members said that Mrs Carlin appeared to be confident but was somewhat vague in her responses. It was also suggested that the examples she gave were not particularly focused and that on one occasion she openly said in interview that she had left consultation with the Trade Union until too late in the day and that this had in fact meant an important deadline had to be missed. This was disputed by the Claimant who said that her response was taken out of context.
32. The comment on Mr Magee's interview reads "A very strong interview in most areas even though obviously nervous, answer on complex issues rambled a little. But showed breadth of experience across the board." The assessment of the candidates by the panel does not appear in any detail from the documentation completed at the interview. In commenting on the performance of each candidate the panel were clear that Mr Magee gave focussed and clear answers, which seems at odds with the written comments.
33. Mrs Carlin felt aggrieved that she had been asked more questions on IIP than the successful candidate. The panel took the view that her initial answer was not sufficiently full and she had been asked supplementary questions as a way of giving her an opportunity to clarify and enlarge on her answer. Mrs Carlin also accused Mr Duffy of behaving in an unprofessional manner, acting in a bullying and oppressive way towards her and acting inappropriately. She accused him of laughing at her and treating her in a facetious manner. The members of the panel were adamant this had not happened. Mrs McCloy was quite clear that if anything of this nature had arisen she would have immediately drawn it to the Chairman's attention and stopped the interview. The tribunal accepts this evidence from Mrs McCloy who was an independent member of the panel coming from outside the Social Security Agency and finds as a fact that Mr Duffy did not treat the claimant in an inappropriate or bullying manner during the interview.
34. Following the interview Mrs Carlin was told the next day by Mr Jim Johnston that Pat Magee had been appointed to the post and that she had been unsuccessful. She was distressed and annoyed about this and alleged that Mr Johnston, seeing her distress, suggested she take some time off that afternoon and indulge in some retail therapy which the claimant found insensitive. Mr Johnston apologized on seeing that the claimant was upset. The claimant was upset that her line manager , Frank Duffy, did not tell her himself of the interview results. She did not however make any complaint at that time about the way she alleged she had been treated by Frank Duffy at the interview nor did she make any protest about the way the recruitment procedure had been carried out. She did not send any minute or memorandum to Frank Duffy the Director of Personnel or write to the Chief Executive of the Agency in relation to her concerns.
35. Mrs Carlin ultimately sought an interview with Chris Thompson the Chief Executive on 15 April 1999. He provided her with feedback in relation to her interview and commented that he had found her manner "diffident" at interview. The claimant was distressed and concerned about the way she perceived she had been treated. This was a lengthy interview, during which the claimant raised some of the issues which caused her concern about the recruitment and selection process in general and Mr Duffy's alleged treatment of her. Mrs Carlin said Mr Thompson did not take her concerns seriously. Mr Thompson agreed with this, saying he did not accept the complaint about Mr Duffy's behaviour at interview nor did he accept that Mr Magee was not a better candidate than the claimant. Mrs Carlin found Mr Thompson dismissive of her. The tribunal can appreciate this, as Mr Thompson's manner at the hearing was bullish and at times dismissive of the questions he was asked. She did not however raise any of her concerns formally or in writing at any point during the procedures leading up to the issue of the vacancy notice, at any time during the recruitment procedure or up to and including the interview. The only protest she has appeared to have made was at her feedback interview in April 1999 and this was not raised as a formal complaint.

RELEVANT LAW

36. The relevant law in relation to this case is to be found in the Sex Discrimination (Northern Ireland)Order 1976 (as amended), the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001 and in the relevant case law.

The Sex Discrimination (Northern Ireland) Order 1976 provides as follows at Article 3:-

"3(i) A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Order if –

(a) on the ground of her sex he treats her less favourably than he treats or would treat a man,

(b) he applies to her a requirement or condition which he applies or would apply equally to a man but:-

i. which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, and

ii. which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and

iii. which is to her detriment because she cannot comply with it.

(ii) If a person treats or would treat a man differently according to the man's marital status this treatment of a woman is for the purposes of Paragraph (1)(a) to be compared with his treatment of a man having the like marital status."

37. The Order provides further at Article 8:-

"8-(i) It is unlawful for a person, in relation to employment by him at an establishment in Northern Ireland, to discriminate against a woman –

(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 her that employment; or

(c) by refusing or deliberately omitting to offer her that employment.

(ii) It is unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland, to discriminate against her:-

(a) in the way he affords her access to the opportunities for a promotion, transfer or training or to any other benefits, facilities or services by refusing or deliberately omitting to afford her access to them or

(b) by dismissing her, or subjecting her to any other detriment ……."

38. The Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001 insert a new article 63A into the Sex Discrimination (Northern Ireland) 1976. That article reads as follows:-

"Burden of Proof: Industrial Tribunals

63A

(i)

This Article applies to any complaint presented under Article 63 to an Industrial Tribunal.

(ii) Where, on the hearing of the complaint, the Complainant proves facts from which the tribunal could, apart from this Article 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 the Part III, or

(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination against the complainant;

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".

39. The tribunal also considered relevant case law as opened to it by both parties in the course of their submissions and in particular considered the judgment of the Court of Appeal for England and Wales in the cases of IGEN Limited and Others v Wong, Chamberlain Solicitors and Another v Emokpae and Brunnell University v Webster [2005] IRLR 258. In particular the tribunal has considered the guidance of the Court of Appeal as set out in the IGEN decision which modifies the decision issued by the Employment Appeal Tribunal in Barton v InvestecHenderson Crosthwaite Securities Limited [2003] IRLR 332. Although the Court of Appeal was careful to state in its decision that an Employment Tribunal would not err in law if it failed to consider the revised guidelines and to apply them seriatim (see Paragraph 16 of the judgment), the tribunal however finds it helpful to set out the revised guidance as enunciated by Lord Justice Peter Gibson in IGEN which is as follows :-

(i) Pursuant to Section 63A of the SDA (Sex Discrimination Act 1975), [the English equivalent legislation to the Sex Discrimination (Northern Ireland) Order 1976] it is for the claimant who complains of sex discrimination to prove on a balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the complainant which is unlawful by virtue of Part II or which by Section 41 or Section 42 of the SDA is to be treated as having been committed against the complainant. These are referred to below as 'such facts'.

(ii) If the complainant does not prove such facts he/she will fail.

(iii) It is important to bear in mind when deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that 'he/she would not have fitted in'.

(iv) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.

(v) It is important to note the word 'could' in Section 63A (2). At this stage the tribunal does not have to reach a definite determination that such facts would lead to the conclusion that there was not an act of unlawful discrimination. At this stage the tribunal is looking at primary facts to see what inferences of secondary fact could be drawn from them.

(vi) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.

(vii) Those inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with Section 74 (2) (b) of the SDA from any evasive or equivocal reply to a questionnaire or any other questions which fall within Section 74 (2) of the SDA.

(viii) Likewise, the tribunal must decide whether any provision of a relevant code of practice is relevant and if so, take it into account in determining such facts pursuant to Section 56A (10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

(ix) Where the claimant has proved facts from which conclusions can be drawn that the respondent has treated the claimant less favourably on the grounds of sex, then the burden of proof moves to the respondent.

(x) It is then for the respondent to prove that he did not commit, or as the case may be is not to be treated as having committed, that act.

(xi) To discharge that burden it is necessary for the respondent to prove on the balance of probabilities that the treatment was in no sense whatsoever on the grounds of sex, since 'no discrimination whatsoever' is compatible with the burden of proof directive.

(xii) That requires a tribunal to assess not merely whether the respondent has proved an explanation from the facts from which such inferences can be drawn, but further that it is adequate to discharge a burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.

(xiii) Since the facts necessary to prove an explanation would normally be in the possession of the respondent a tribunal would normally expect evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and or code of practice."

40. The tribunal in addition considered relevant case law on the issue of sex discrimination opened to it by both representatives in the course of their submissions in this case, in particular the decision in Barton v Investec Securities Limited, the decision of the Court of Appeal in Anya v University of Oxford [2001] IRLR 377 CA and Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 amongst other decisions. The tribunal also took into account the provisions of the Equality Commission's Code of Practice on Removing Sex Bias in Recruitment and Selection ('the Code') which is admissible in proceedings under the Sex Discrimination (Northern Ireland) Order 1976 under Article 56(A) (9) of that Order.
41. Tribunals are allowed by the provisions of that Order to take into account any provision of the Code which appears to be relevant to the questions arising in proceedings before it. A breach of the Code of Practice may lead the tribunal if appropriate to draw an inference of discrimination from failure to comply with the relevant code of practice.
42. In relation to the complaints made by the claimant in the course of the case, the tribunal has divided these into three main categories:-

(a) Background to the Appointment.

(b) The arrangements for the selection and recruitment.

(c) The decision to appoint Mr Magee rather than Mrs Carlin to the post of Manager, Human Resources Policy and Development.

43. (a) Background to the appointment

Mrs Carlin complained of the fact that in September 1998, prior to the post of Manager, Human Resource Policy and Development being advertised by way of vacancy notice, she was advised by Jim Johnston that Pat Magee was to be appointed to the Training and Development Unit on a temporary basis while retaining his responsibilities for his Deputy Principal post. She objected to this and said that she had expressed an interest in having some responsibility in relation to the question of training and development. She was told that she was already temporarily promoted to a Grade 7 post and that this would not be possible. Mrs Carlin's objection was that Mr Magee was able to retain his permanent post while acting up into the Training and Development post and she maintained that this gave him additional experience which favoured him in the competition for the Human Resource Manager's post. In support of this she pointed to the fact that in three other Grade 7 posts, the men temporarily promoted to those posts were successful in being appointed to the permanent posts.

44. The tribunal does not agree that Mr Magee's temporary promotion gave him an unfair advantage or that there was anything in this which was discriminatory on the grounds of sex. Mrs Carlin was already temporarily promoted into a Grade 7 post. Her Grade 7 was as Project Manager for Human Resource Strategy and this expertise was to form part of the responsibilities for the new Manager's post for which she and Mr Magee applied. So she was already obtaining experience in a Grade 7 post and in an area of expertise relevant to the post at issue in this case. She was willing to complain that Mr Magee was obtaining experience in a Grade 7 post as well but in another area of expertise and suggested this advantaged him. She did not acknowledge the fact that she was already acting up and had been for some time. The tribunal therefore considers that her complaint in relation to Mr Magee being allowed to act up temporarily while retaining his substantive post does not raise any prima facie facts from which an inference of discrimination could be made.
45. The claimant suggested moreover that there was a bias against women in Grade 7 posts and pointed to the replies to the Statutory Questionnaire, which showed that of nine vacancies at Grade 7 in the five years prior to the post in question, only two had been filled by women. Mr Thompson responded that during his tenure as Chief Executive of the SSA, there had been 17 promotions to Grade 7, 10 of whom were men and seven of whom were women. While there may well have been an historic imbalance in the number of men at Grade 7 as opposed to the number of women, and a perception among staff that it was difficult for women to attain that grade, there was nevertheless a decided increase in the number of women appointed to this senior grade in the six years following Chris Thompson's appointment as Chief Executive in October 1997. The claimant's argument was that the historic under representation of women at Grade 7 indicated an inbuilt bias against women being promoted to senior posts within the SSA. This imbalance might well indicate discrimination against women. However, there was no detailed analysis of this argument and the tribunal notes that in relation to the HR Manager's post there were six candidates interviewed, 3 male and 3 female. Since all met the essential criteria, they were all potentially suitable for the post. The statistics on appointments to Grade 7 posts during Mr Thompson's tenure at the SSA indicate that there was a movement towards appointing more women at a senior level. So while there may have been bias against women in the past, the tribunal is satisfied by the explanation given by the respondent that at the time of the competition for the Human Resource Manager's post there was an ethos within the SSA which was aimed at procuring equality of opportunity for all, which was reflected in the promotion of an increased number of women to Grade 7 posts .
46. (b) The arrangements for selection and recruitment to the post

(i) Preparation of the Job Description and Personnel Specification

Mrs Carlin complained that Mr Magee had been involved in the preparation of the job description and personnel specification for the post and she believed that this was evidence of sex discrimination. In fact both Mr Magee and Mrs Carlin together with Eoin Neeson were consulted as part of the Senior Management Team on the job description for the realigned post. The tribunal has considered carefully the evidence of all the witnesses in this regard. While the tribunal agrees that it would not have been appropriate for Mr Magee or Mrs Carlin, as prospective candidates for the job, to be involved in a personal specification, they can see no objection to Mrs Carlin, Mr Magee and Mr Neeson, as the post holders of the jobs which were to be realigned, being involved in the preparation of the job description for the new post. These were the individuals who would be best equipped to understand the responsibilities of the new post. Mr Grainger, for the claimant, suggested that Mr Magee's memo to Susan Hunter in October indicating that he had 'been told to keep a low profile' in relation to the Human Resources post was indicative of covert involvement by Mr Magee in the recruitment and selection process. There was no evidence to suggest that Mr Magee was in fact involved in the preparation of the personal specification, and the tribunal accepts the evidence of Mr Magee, Mrs Hunter and Mr Fox on this matter. The tribunal is also content that Mrs Carlin had an opportunity to comment on the job description but did not take up this opportunity in writing. The tribunal is satisfied that she was consulted by Eoin Neeson in relation to the job description, whether at a meeting or individually. Accordingly the tribunal has not found any potentially discriminatory facts in relation to the preparation of the job description and personnel specification which would require an explanation from the respondent on this matter.

(ii) Failure to carry out Job Analysis

47. The Equality Commission's Code of Practice on Removing Sex Bias in Recruitment and Selection ( 'the Code') points to the desirability of carrying out a job analysis in relation to vacant or new posts. The argument put forward by the respondent in relation to the new post of Manager for Human Resource Policy and Development was that that no job analysis was necessary because it was not a new post but a realignment of two existing posts. Mrs Carlin did not actually make any recorded protest in relation to this matter at the time. She subsequently made a case before the tribunal that the post was overloaded and it was therefore viewed as 'a man's job'. She did not however make this case at the time. In fact the only person who raised the issue as to whether the job was potentially overloaded was Mr Magee, the successful candidate.
48. The explanation for failure to carry out a job analysis from the respondent was that Eoin Neeson had checked the position with the Efficiency Unit and they were content that no job analysis was actually required. However Susan Hunter, who had expertise in this particular field, had also considered the posts and was content that no job analysis was actually required. She was not however aware that Mrs Carlin's post as Project Manager of Human Resource Strategy was to be included within the realignment process. It should be noted however that it was not the entirety of the Project Manager's post which was to be involved in the exercise. It was agreed by a number of the witnesses that once the Human Resource Strategy was put in place and the project completed, which was due to occur in March 1999, it would not be necessary to have a full-time Project Manager for Human Resource strategy.
49. The tribunal has considered this matter carefully. The failure to provide a job analysis is a breach of the Code and it is clear that Pat Magee at least was concerned that the post might be overloaded compared to the responsibilities of the Personnel Officer, who would deal with operational matters. The suggestion that Eoin Neeson had checked the position with the Efficiency Unit and that they did not see any necessity for a job analysis and Susan Hunter's view that no job analysis was needed are less persuasive when it is considered that Mrs Hunter was not aware that Mrs Carlin's duties as Project Manager for Human Resource Strategy were also included within the new post. Breach of the Code in failing to carry out a job analysis for a new or vacant post may lead a tribunal to the view that discrimination has occurred. However such a finding does not automatically follow from the finding that there has been a breach of the Code (see the judgment of Carswell LCJ (as he then was ) in Shamoon v Chief Constable of the Royal Ulster Constabulary,
50. Given that one of the prospective candidates for the post had actually raised the issue of overloading , it seems to the tribunal strange that the other managers did not at least meet to discuss this matter or refer the matter to the Equal Opportunities Unit or the Efficiency Unit for a job analysis to be carried out. However it is not clear whether or not the post was in fact overloaded. Susan Hunter's view was that it was not, from her experience in evaluating posts. No evidence was adduced in relation to this matter and Mrs Carlin did not produce any evidence to confirm that the post was in fact overloaded and therefore to be considered as 'a man's job'. While it is clear therefore that no job analysis was carried out, it is not clear that the failure to carry out the job analysis led to discrimination or a potentially discriminatory situation in relation to the loading of the post. There was nothing in the evidence before the tribunal to indicate that the duties and responsibilities of the post were such that the selection panel might consider that only a man could fill the job because of the responsibilities involved in it. No evidence to this effect was adduced by the claimant in any shape or form. The tribunal therefore finds that the claimant has not established, on a balance of probabilities, that the breach of the Code led to an overloading of the post so that it was perceived as a 'man's job' and so was discriminatory in this instance.

(iii) The essential criteria for the post

51. The claimant complained that the essential criteria for the post were skewed in favour of Mr Magee in that the failure on the part of the respondent to include a professional qualification in Personnel Management with the essential criteria discriminated against her. She also argued that the inclusion of the criteria on Investors In People ('IIP') and the weighting accorded to it was designed to favour Mr Magee, the successful candidate.
52. To take these two points separately, first of all the claimant had graduate membership of the Institute of Personnel and Development ('the IPD') which is a recognised qualification for Personnel Managers throughout the Personnel and Human Resources Sector. Mr Magee, the successful candidate for the post, did not hold any professional qualification in personnel management. The claimant contended that the exclusion of a professional qualification in personnel management was deliberately designed to favour Mr Magee as successful candidate and thus she was discriminated against on grounds of her sex. On an initial consideration it is possible that excluding the requirement for a professional qualification could lead to an inference of discrimination on grounds of sex, if it widened the field to include a male candidate or male candidates in general. However for the reasons set out below, the tribunal does not accept this contention.
53. First of all the selection panel pointed to criteria for comparable posts at Grade 7 level in the field of Personnel and Human Resources. In none of these was a professional qualification required. Mrs McCloy made the point that it is not necessary to have a professional qualification in personnel management in order to manage Personnel Managers. This new post was really a policy post rather than an operational post and did not require the post holder to have the skills required to carry out day-to-day personnel management. Secondly, the six candidates for the post, all of whom met the essential criteria, included the successful candidate who did not have any professional or training qualifications, one female who had no qualifications, two females (including the claimant) who had graduate membership of the Institute of Personnel Development, one male who had a Certificate of Management Practice with commendation and another male who held IPD membership. The candidate placed second in the competition for this post did not have a professional qualification and so it is difficult to argue that this criterion- or the failure to choose it as an essential criterion was on grounds of gender. Thirdly, Mrs Carlin did clearly refer to her IPD membership in the course of her interview as it was noted on the evidence sheets and therefore she was in fact given credit for this qualification in the course of her interview mark. The tribunal therefore does not accept that failure to include a professional qualification amongst the essential criteria unfairly advantaged the successful candidate over Mrs Carlin or any of the other candidates.
54. In the weighting of the essential criteria, Mrs Carlin alleged that undue emphasis had been given to the criteria in Investors for People. She suggested that the expertise in Investors in People required by the essential criteria was much higher than that required for Human Resource Policy. However the first criteria of 'a knowledge of, or interest in, Human Resource Policy' was given twenty marks, whereas the criteria of 'a good understanding of, and commitment to, the principles and practices of IIP' was given fifteen marks. In the tribunal's view this clearly indicates that the Human Resource Policy was considered to be a significant part of the post and would require detailed knowledge of the area, and not just an 'interest' in Human Resource Policy as the claimant suggested.

55.

While the criteria in relation to IIP was arguably more stringent in that candidates were required to have a detailed understanding of and commitment to the principles and practices of IIP, it was given fifteen marks and therefore weighted in the middle range of the criteria. The claimant suggested that the IIP criteria unfairly advantaged the successful candidate as it was part of his day-to-day work. However all the candidates had to demonstrate a good understanding of and commitment to the principles and practices of IIP, not just the claimant and the successful candidate. They were therefore on a level playing field as far as this was concerned. While it was true that Mr Magee was closely involved in managing and implementing IIP as part of his job at the time of the interview process, the claimant had been a driver for IIP when her own Department had been assessed for IIP purposes a couple of years previously and was in the process of preparing her Department for reassessment. It could not therefore be said that she did not have a knowledge of this particular subject. Even if she did not have 'hands on' experience or was not doing the job on a day-to-day basis, like any other candidate she would have been expected to read up and prepare for the interview and to obtain any necessary knowledge to demonstrate that she had a good understanding of the subject. She was not required by the criteria to show that she had expertise or experience in the field as such. The tribunal therefore does not accept that the claimant has proven facts from which it could be found that there has been evidence of discrimination on the grounds of sex in relation to this particular criterion.

55. (iv) Elements of the procedure

(i) Failure to select a selection panel prior to identifying selection criteria.

(ii) Failure to weight criteria in advance of the vacancy notice being issued.

(iii) Failure to ensure that all interview panel were trained in criteria based interviewing prior to the procedure.

(iv) Failure to ensure that the panel carried out individual marking of candidates and individual assessments of candidates.

(v) The fairness and relevance of the questions.

(vi) Conduct of the interview, and Mr Duffy's behaviour.

56. (i) The failure to select the panel in advance of the vacancy notice being issued.

From the questionnaire which was partially completed by Kevin Fox, it would appear, at the time when the vacancy notice was being prepared, it had been clearly identified that Mr Thompson, Chief Executive, as the head of the Unit concerned and Frank Duffy, the Director of Personnel, would be two of the interview panel. At that stage he had not established who the third member would be. The claimant did not adduce any evidence or prove any facts regarding this from which the tribunal could draw an inference of discrimination.

60.

(ii)

Failure to carry out weighting of the selection criteria in advance of the eligibility check and short listing process

The claimant suggested that the weighting for the criteria should have been carried out at an earlier stage and it was accepted by the respondent that it would have been desirable that this had been done. The relevant circular, CSC 7/97, makes this clear. However the weighting was carried out at a meeting in February with the selection panel, after the competition had closed to applicants. The claimant's case was that the panel had seen the application forms and that they may have been influenced by this in deciding the weighting of the criteria in a way which favoured the successful candidate, Mr Magee. These are, in the tribunal's view, facts from which it could conclude that there had been an act of discrimination by the respondent. The weighting of the criteria should preferably have been carried out at an earlier stage. However the respondent adduced evidence to show that the weighting given to the criteria appears to be similar to that given to criteria in comparable personnel posts where similar essential criteria were used to assess the candidates. Knowledge of Investors in People, the criterion about which the claimant complained most, was placed in the middle range of importance, not given the highest weighting. The claimant did not complain about the high weighting given to the criteria related to an interest in or knowledge of Human Resource Policy, which might have been perceived as favouring her. The tribunal accepts the explanation given by the respondent and finds that it has discharged the onus of showing that its failure to carry out the weighting of criteria in advance of the eligibility check and short listing process, was not of itself discriminatory on grounds of sex.

57. (iii) Lack of Criteria based interview training

Of the three members of the panel, only Mrs McCloy appears to have received current training in criteria based interviewing. Both she and Mr Thompson had however received training on Grade 7 selection, which appears to have been training specifically relevant to this type of competition. Mr Duffy however had attended neither of these training courses but had been trained in competence based interviewing in 1996, over two years before this particular recruitment process. No record appears to have been made at the time of selecting the panel to check what training may have been received and there appears to have been an element of sloppiness on the part of Mr Fox in this matter. However when asked about the procedures to be applied, each of the interviewing panel referred to the procedure in the same terms and referred to the procedure outlined in the CSC 7/97 circular and the Interview Selection Handbook in the same terms. It does not appear therefore that there was any real misunderstanding or confusion about the procedure to be followed. While it would no doubt have been preferable that all the panel had undergone criteria based interview training, the claimant did not make any specific allegations about how she said this had influenced the recruitment procedure against her . The tribunal therefore finds that on this issue the claimant had failed to show any facts from which it could conclude there has been discrimination against the claimant.

58. (iv) Individual marking of candidates

The candidates were assessed by all of the panel members, but only one panel member actually took notes while the applicants were giving their answers to questions. The note taker took down details of the replies given by the candidates. At the end of the interview process, the panel's assessment of the candidate was noted on the Chairman's assessment form, but no individual views on the candidates were given by the other panel members. There were no individual marks recorded, but simply a collective mark was assigned to each candidate in respect of each criteria. This was the procedure used throughout the Civil Service at the time and it was only changed after this particular competition had been completed.

59. There is no doubt that, as is provided in the Equality Commission's Code of Practice, it would have been preferable for panel members to record their individual views and individual marks on each candidate. The Code provides at Paragraph 9.4 :-

"It is recommended that a standardised scoring system should be agreed and used consistently by each panel member for each candidate. It may be desirable to weight some of the criteria by attaching a higher maximum score to a factor which represents a particularly important aspect of the job."

60. Failure on the part of the selection panel to make individual notes and give individual marks –even at the end of each interview after the candidate has left the room – leads to a situation where, when the process is challenged, the documentary evidence of the individual panel member's views is simply non-existent. The only written evidence of the interview was in the evidence sheets which record in précis form the candidate's comments; it does not record the panel's assessment of the candidate. Comments made by panel members in relation to Mrs Carlin's and Mr Magee's respective performances at interview in their evidence cannot be substantiated from contemporary records, because no individual records were kept by the panel members. It is therefore difficult to corroborate the accuracy of panel members' recollection of their assessment of the candidates, except in so far as their individual recollections are consistent with each other. This is a clear breach of the Code of Practice and could potentially lead to discrimination where different assessments of the same candidate by panel members are 'masked' by the fact that the only assessment of a candidate is given in the Chairman's note and there is only one agreed mark given to each candidate for each criterion. If two of the panel had a particularly good impression of a candidate, but the third did not, the final assessment may be altered to take account of this. At worst, a discriminatory or biased assessment would simply not appear because the interviewer concerned made no record of his or her assessment.
61. For the reasons set out above, the tribunal finds that the failure of the panel to mark the interview candidates individually is completely unsatisfactory and a breach of the Equality Commission Code of Practice. The issue for the tribunal to decide however if whether the breach of the Code is evidence of discrimination on grounds of sex. Given that the practice of marking followed by the panel was used throughout the Civil Service at that time and given that no evidence was adduced to show that the assessment of or marks awarded to Mrs Carlin or any of the candidates was unfair, the tribunal finds that the claimant has failed to establish facts from which an inference of discrimination could be made.
62. (v) Fairness and Relevance of Questions

The claimant's main contention was that the question in relation to Investors in People was designed to favour the successful candidate, because it reflected the job responsibilities of Mr Magee at the time. The tribunal has considered this matter carefully and has come to the conclusion that one could make the same comment about the questions in relation to Human Resource Policy, but this time in relation to Mrs Carlin. The question in relation to Investors in People as drafted is a fair and objective question. IIP was to form an important part of the responsibilities of the post holder and it was therefore legitimate to include this issue as one of the essential criteria and also to ask questions about it in the course of the interview. The tribunal therefore finds that the questions asked were fair and relevant to the post and does not believe there was anything discriminatory in their content or in the way they were asked. The tribunal therefore finds that the claimant has failed to prove facts from which the tribunal could make a finding of discriminatory behaviour on the part of the respondent.

63. Mindful of the Guidance in IGEN, that discrimination can be unintentional and that individual, apparently innocent, occurrences, when put together can form a picture of discrimination, the tribunal has considered whether the factors set out above are capable of constituting unlawful discrimination on grounds of sex when taken as a whole. It takes the view that these factors either are not established so as make out a prima facie case of discrimination or the respondent has provided an explanation which is devoid of gender based factors and so there is no evidence of unlawful discrimination on grounds of sex.
64. (c) The decision to appoint Mr Magee rather than the claimant

The claimant argued that she was the best candidate for the post, that she had better qualifications and experience and was better fitted for the post than Mr Magee, the successful candidate, or Mrs Hagan, the runner–up. Mrs Carlin set out in some detail in her witness statement the ways in which she considered she was more appropriately experienced and qualified for the post. She noted that the lack of individual marks and notes by the panel gave rise to difficulty in judging how the panel had made their assessments and reached their conclusions about the candidates. This is dealt with in some detail above. All the panel members were clear that, while Mrs Carlin had considerable qualifications and experience relevant to the post, she did not perform at interview as well as Mr Magee, the successful candidate, or Mrs Hagan, who was placed second in demonstrating how she met the criteria for the post. Obviously Mrs Carlin did not see the interviews of the other candidates; the tribunal cannot assess the performance of the candidates at interview and it is not for them to substitute their assessment for that of the interview panel.

65. Mrs McCloy's evidence was that after each interview, the panel discussed the candidates' performance, considered the responses recorded on the evidence sheet and agreed marks on each criteria. While the discussion was not minuted, this does not of itself invalidate the process.

70.

The individual recollections of the panel are consistent and each panel member gave examples of the candidates' performance which supported their view of the interviewee concerned. Their impressions of the candidates' demeanour are consistent with the observations of the tribunal who had the opportunity to observe both Mr Magee and Mrs Carlin. The interview panel's comments made of Mrs Carlin were that she appeared relaxed and confident but displayed no great enthusiasm in relation to the questions and came across as disengaged. Her answers however lacked depth and she did not provide the range of examples given by other candidates. The tribunal noted that Mrs Carlin appeared calm at the hearing except when describing the effect she said the whole process had had on her health. She seemed relaxed almost to the point of being disengaged. Mr Magee was seen by the panel as being as being more nervous, but enthusiastic and motivated. He provided detailed examples of his competences which justified the scores awarded to him by the panel. The tribunal noted that Mr Magee appeared tense but gave detailed answers to questions and was alert and attentive.

66. The tribunal has considered the assessments made of each of the top three candidates by the panel and can find no evidence of discrimination in the way the interviews were conducted or the conclusions reached. On the contrary, the tribunal is content that the decision of the panel was firmly based on the evidence of candidates' performance at interview. It is not necessary for discrimination to be intentional or overt, as Mrs Carlin alleged, and this is confirmed in the IGEN guidance, which the tribunal took into account in reaching this conclusion. The question for the tribunal to decide is that set out in the test enunciated by the House of Lords in James v Eastleigh Borough Council [1992]AC 751, namely but for her sex, would the claimant have been treated in this way? In the tribunal's judgment, the claimant would have been treated in exactly the same way as she was treated , whether male or female.

72. Conclusion

Mrs Carlin clearly felt that the entire recruitment and selection process, from start to finish, was geared to Mr Magee being appointed to the post of Manager, Human Resource Policy and Development. There was absolutely no evidence to bear this out. All the candidates for the post had successfully passed the first stage of the competition for Grade 7 posts and had demonstrated they met the essential criteria. Both Mrs Carlin and Mr Magee had experience in acting up in Grade 7 posts relevant to the responsibilities of the new Manager's post. Mrs Carlin's objection to Mr Magee having experience in the Training and Development post while she did not have this experience shows that ,while she wanted the advantage of experience in a Grade 7 post for herself, she did not want others to have the perceived advantage of that experience.

67. The tribunal is not persuaded either by Mrs Carlin's evidence about her objections to the loading of the post or her concerns that she and Mr Magee were consulted about the job description and the propriety of this. If she objected as strongly as she suggested, why did she not put her concerns in writing in the time-honoured Civil Service form of a minute to Eoin Neeson or her line manager, Frank Duffy? Had she done so, this would have required a response from the manager concerned and would have avoided any difficulties. Equally, when the actual interviews took place, Mrs Carlin's concerns about the questions asked , the way the interview was conducted and the procedures used did not prompt any protest from her until several weeks after the event when she went for a feedback interview with Mr Thompson. She did not raise any formal complaint, for example, about Mr Duffy's alleged treatment of her at interview, although she must have known as an experienced Human Resource practitioner, that if such behaviour did occur, it would be quite improper and possibly put the entire process in question.
68. The tribunal has formed the view that Mrs Carlin, with hindsight, perceived the conduct of her managers and of the recruitment and selection procedure quite differently to the way she would have perceived it had she been the successful candidate and this coloured her evidence to the tribunal. The decision of the tribunal is that the claimant was not unlawfully discriminated against on grounds of her gender contrary to the Sex Discrimination (Northern Ireland) Order 1976 ( as amended ) or European Law and her claim is dismissed.

Chairman:

Date and place of hearing: 11 - 15 April, 21 and 29 April 2005.

Date decision recorded in register and issued to parties: