Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF: 311/03

CLAIMANT: Mari Johansson

RESPONDENT: Fountain Street Community Development Association

DECISION

The unanimous decision of the tribunal is that the claimant was not discriminated against on the grounds of disability nor was she discriminated against on the grounds of her race.

Appearances:

The claimant was represented by Mr Michael Potter, Barrister-at-Law, instructed by The Equality Commission.

The respondent was represented by Mr D. Quinn, Barrister-at-Law, instructed by John Fahy & Co, Solicitors.

REASONS

1. Sources of Evidence

The tribunal heard evidence from the claimant on her own behalf and from her partner, Mr Tony Meenan. The tribunal also heard evidence from Ms Teresa Devine, Ms Mary Cunningham and Mr T Brogan on behalf of the respondent. The tribunal also received a bundle of agreed documents and two agreed medicals, one from Mr D Gordon, Consultant Plastic Surgeon and the other from Doctor Alan Leonard, also a Consultant Plastic Surgeon. The tribunal heard oral evidence from Mr Leonard.

2. The Claim and the Defence

In her originating claim the claimant claimed that she had been discriminated against on the grounds of disability and later added a claim for discrimination on the grounds of her race. The respondent denied both claims.

3. The Issues

There were two issues agreed at the case management conference of 17 November 2004 and they were:-

Whether the claimant is a disabled person by reason of a facial disfigurement.

Whether the claimant was treated less favourably for a reason related to her disability in her failure to be appointed to the post of Youth Drugs Team Leader.

Whether the claimant was discriminated against on the grounds of her race and whether she was treated less favourably for a reason related to her race in her failure to be appointed to the post of Youth Drugs Team Leader.

4. Analysis of Evidence

In general the tribunal preferred the evidence given by Ms Cunningham and Ms Devine on behalf of the respondent. The tribunal largely discounted the evidence given by Mr T Brogan save and except to the extent that it corroborated the evidence of the other two witnesses. The tribunal also gave very little credence to the evidence of Mr Tony Meenan who was the claimant's partner. The reason for this was that it was common case that Mr Meenan looked at the application forms and all documentation such as scoring sheets relating to the interview process. Given that he was a partner to the claimant at the material time, the tribunal considered that in so doing he did not understand the conflict of interest which faced him and as such while the tribunal does not make any finding concerning his intention but the fact that he had his hands on papers to do with the claimant has led the tribunal to regard his evidence as being of very little assistance.

5. Findings of Fact

(i) The claimant applied for the post of Youth Drugs Team Leader with the respondent.

(ii) The claimant's partner Mr Tony Meenan was a Project Manager for the project to which the claimant sought appointment, and he appointed Mr T Brogan, Ms Devine and Ms Cunningham to be the interview panel for the interviews for this post. While Ms Devine and Ms Cunningham had a fair degree of experience in interviewing, Mr Brogan had none and asked for training which he did not receive.

(iii) The claimant was known to at least two of the interview panel.

(iv) The other candidate for the job was a Mr Robert McCrea.

(v) On the basis of the respective qualifications on paper, it was common case that the claimant's qualifications and experience were superior to that of Mr McCrea.

(vi) After interview of both candidates the respondent appointed Mr McCrea to the position, and did not appoint the claimant as reserve candidate. The reasons given for this appointment were that Mr McCrea came across well in interview and the claimant did not. The claimant came across as aloof, disinterested and with answers lacking content and conviction. In general, the unanimous conclusion of the interview panel was that the claimant was not "approachable" and this was a quality needed in the person who will be reaching out to vulnerable people in the community.

(vii) The claimant is a person of Swedish national origin and has facial scarring. The successful candidate, Mr Robert McCrea, was assumed to be a local person of Northern Irish ethnic origin.

(viii) The tribunal has not made any findings upon the issue of whether or not the interview papers were tampered with as alleged by the respondent. While it certainly appeared to the tribunal that some scores had been changed, there was insufficient evidence upon which the tribunal could find that this was done by way of a conspiracy between the interview panel rather than an innocent rethink of the marks given during the interview. It did not alter the end result. As Mr McCrea accepted the post for which the claimant had interviewed, the question of the interview panel's failure to appoint her as reserve candidate and what inferences could be drawn from that has not been dealt with.

6. Short Statement of the Relevant Applicable Principle of Law

(i) Section 1 of the Disability Discrimination Act 1995 provides:-

"Subject to the provisions of Schedule 1, a person has a disability for

the purposes of this Act if he has a physical or mental impairment which has a substantial and long term adverse affect on his ability to carry out normal day-to-day activities".

(ii) Schedule 1 paragraph 3 of the same Act states as follows:-

"An impairment which consists of a severe disfigurement is to be treated as having a substantial adverse affect on the ability of the person concerned to carry normal day-to-day activities".

(iii) Section 6 of the Race Relations (Northern Ireland) Order 1997 provides:-

"It is unlawful for a person, in relation to employment by him at an establishment in Northern Ireland, to discriminate against another –

(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 in that employment; or

(c) by refusing or deliberately omitting to offer him that

employment".

The Race Relations Order (Amendment) Regulations (Northern Ireland) 2003 provides that a new Section 52A is to be inserted in the Principle Race Relations (Northern Ireland) Order 1997 as follows:-

1. 52A(1) This Article applies for a complaint that is presented under

Article 52 and the complaint is that the respondent –

(a) has committed an act of discrimination, on grounds of race or national origins, which is unlawful by virtue of any provision referred to in Article 3(1)(B)(a), (e), or (f), or Part IV in its application to those provisions, or

(b) has committed an act of harassment.

2. 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 such an act of discrimination or harassment against the complainant,

(b) is by virtue of Article 32 or 33 to be treated as having committed such an act of discrimination or harassment 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".

The tribunal also had regard to the decision of Goodwin -v- The Patent Office [1999] IRLR 4.

7. The Tribunal's Conclusions

Disability Discrimination.

The tribunal carefully considered the written evidence of Mr Gordon on behalf of the respondent and the oral and written evidence of Mr Leonard. The tribunal preferred the evidence of Mr Gordon as it was consistent with the evidence given and the facts found. Mr Gordon concluded that the claimant had scarring visible at conversational distances but that there was no distortion of her facial features and her facial expressions are normal and appropriate. Neither was there any loss of body parts. There was nothing in her appearance that could be considered repellent. These points of Mr Gordon's evidence were corroborated by the claimant's own evidence which was that she had worked for over twenty years in social and community work and had never had any problem related to her facial appearance. The tribunal also accepted the evidence of the panel that they did not know of her facial scarring until the actual proceedings commenced in the tribunal. While the tribunal accepted that the claimant had a physical impairment which

consisted of scarring to her face the tribunal was unable to classify it as a severe disfigurement. As such the questions of how the impairment affected the claimant's ability to carry on day-to-day activities, the question of adverse affect and the long term nature of the condition do not arise and are not adjudicated upon.

The Race Discrimination Claim

The primary facts found in this area are:-

a. The claimant had superior qualifications and a greater degree of experience

than Mr McCrea.

b. The claimant was Swedish and Mr McCrea as being a past client of the drugs project, was assumed to be of Northern Irish ethnic origin.

These are primary facts from which the tribunal might choose to draw inferences that an act of discrimination had occurred but the tribunal considered that the respondent gave an adequate explanation for its conduct. The tribunal has had regard to the primary aim of the recruitment exercise and that was that the candidate had "to elicit support and participation from young people throughout Strabane for a programme of activities exposing young people to recreational and personal development opportunities that provide alternatives to drug taking cultures". Additionally, one of the key tasks of the Programme was "to gain the trust and participation of Strabane's youth population aged 16-25 within the project's activities". It was the interview panel's assessment that Mr McCrea was the more likely candidate to be able to fulfil this primary object and key task. Unanimously, the interview panel found the claimant disinterested, cold, disengaged, aloof, lack lustre, standoffish with her answers lacking content and conviction. Despite the majority of the interview panel considering that the claimant before interview was the stronger candidate, upon interview, the unanimous impression given was that she would be unable to fulfil the primary purpose of the post and a most important key task of the job description. Having considered the primary purpose and the key task of the job description, the tribunal unanimously finds that this is an adequate explanation and declines to draw adverse influences from the primary facts found.

Chairman:

Date and place of hearing: 18-20 April and 4 July 2005.

Date decision recorded in register and issued to parties: