Industrial Tribunals Northern Ireland Decisions

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McCartney v University of Ulster [2007] NIIT 1782_04 (12 February 2007
URL: http://www.bailii.org/nie/cases/NIIT/2007/1782_04.html
Cite as: [2007] NIIT 1782_4, [2007] NIIT 1782_04

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1782/04

CLAIMANT: Doctor Evelyn Anne McCartney

RESPONDENT: University of Ulster

DECISION

The unanimous decision of the tribunal is that the claimant's respective claims are not made out and these claims are dismissed by the tribunal, without further Order.

Constitution of Tribunal:

Chairman: Mr J V Leonard

Members: Mr Hall

Ms Madden

Appearances:

The claimant was represented by Ms Jane McCafferty, Barrister-at-Law, instructed by Rosemary Connolly, Solicitors

The respondent was represented by Mrs Mary Lewis, Barrister-at-Law, instructed by the University of Ulster.

REASONS

1. Reasons are given in accordance with Rule 30 of the Industrial Tribunal Rules of Procedure contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, reasons having been reserved at the conclusion of the hearing of the matter.

2. Consequent upon earlier directions made by a tribunal in a Case Management Discussion, witness statements were received in evidence from the various witnesses in the matter, together with, in some cases, supplemental statements. These were read aloud to the tribunal by the witnesses and the witnesses were subjected to cross-examination. The tribunal also received a number of bundles of documentation, admitted by agreement, and some additional documents were introduced by agreement in the course of the hearing. The oral evidence received by tribunal was taken from the claimant, Doctor Anne O'Connor, Professor Simon Eliot, Professor Robert Welch, Professor Richard Bradford, Professor Brian Walker, Professor John Gillespie, Doctor Ronnie Wilson, Professor Elisabeth Lillie, and Doctor Andrew Keanie. The tribunal also had the benefit of a skeleton opening argument on the part of the claimant and of very detailed and helpful written and also oral closing submissions on behalf of the parties, and the tribunal would wish to record its gratitude to the respective representatives for the care taken in the presentation of the arguments and submissions in such a comprehensive fashion.

3. In this matter the claimant submitted a claim to the Office of the Tribunals dated 24 May 2004 and received on 28 May 2004, in which the claimant referred the following complaints on her part against the respondent for determination by the tribunal:-

“unfair dismissal; sex discrimination; failure to give reasons; less favourable treatment of a fixed-term worker”

The claimant annexed to her originating claim a document providing particulars of her grounds of complaint running to some 9 pages and 34 paragraphs. As summarised by the claimant's representative at hearing, the claimant's complaints were as follows:-

(a) direct sex discrimination contrary to the Sex Discrimination (Northern Ireland) Order 1976 (as amended) in respect of:-

1. a continuing act of less favourable treatment between 1997 and 9 March 2004; and

2. the decision to dismiss the claimant from her fixed-term post as a Research Fellow, the History of the Irish Book, with effect from 9 March 2004; and

3. the decision on 27 February 2004 not to appoint the claimant to the permanent post of Lecturer in English and History of the Irish Book and the decision that she was not appointable as a reserve candidate for this post;

2. less favourable treatment prior to dismissal contrary to Regulation 3 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002;

2. unfair dismissal in respect of the claimant's dismissal from her fixed-term post with effect from 9 March 2004;

2. failure to provide written reasons for dismissal contrary to the Employment Rights (Northern Ireland) Order 1996.

4. In a response dated 11 August 2004, the University of Ulster, as respondent, confirmed that the claimant had been employed on a fixed-term contract and had been dismissed by reason of the ending of that fixed-term contract. It was denied that the claimant had been unfairly dismissed or discriminated against in any way contrary to existing sex discrimination legislation. It was further denied that the claimant had received any less favourable treatment on grounds of her sex or in relation to her status as a fixed-term worker. It was contended that the claimant did receive written reasons for her dismissal and in relation to her claim for less favourable treatment on the basis of her being a fixed-term worker. Further details were therein provided on behalf of the respondent in defence of the claimant's complaints.

5. The claimant on 17 June 2004 served a questionnaire upon the respondent on foot of Article 74(1) (a) of the Sex Discrimination (Northern Ireland) Order 1976 (as amended) and the respondent served a response thereto on 28 October 2004.

THE ISSUES

6. In the opening skeleton argument made on behalf of the claimant, and in the closing submissions made on behalf of the claimant and the respondent, the issues required to be determined by the tribunal have been set forth. The tribunal was required to determine, in the light of all of the evidence (of which there was a substantial amount) and in the light of the material findings of fact to be drawn therefrom, and applying the law, whether or not the claimant had made out her complaints of, respectively, direct sex discrimination, less favourable treatment contrary to the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002, unfair dismissal in respect of the dismissal of the claimant by the respondent from her fixed-term post, and finally, failure to provide written reasons for dismissal. The tribunal was not required by the parties, in the context of this hearing, to determine the matter of remedy in the event that one or more of these complaints were to be successfully made out.

THE TRIBUNAL'S FINDINGS OF FACT

7. On foot of the oral and the documentary evidence adduced before it, the tribunal made the findings of fact set out below. In respect of any conflicts in the evidence, unless the reasons for a particular finding are expressly stated and explained below, it may be assumed that the tribunal, after due deliberation and consideration being afforded to all of the relevant evidence, resolved any conflicts on that basis in the making of the following findings of fact, on the balance of probabilities:-

1. The claimant graduated from the University of Ulster at Magee with a BA (Honours) Degree in English and Philosophy in 1987. The claimant then obtained an MA in Modern Literature and Drama in 1989. Her academic course was then followed by her gaining a Doctorate in 1994. Between 1988 and 1990 the claimant was employed by the University of Ulster (‘the University') as a Seminar Tutor and thereafter by the University, between 1990 and 1995, as a Module Co-ordinator and Lecturer, limited to specific teaching hours and semester periods. Then the claimant obtained a full-time appointment to the University in September 1995.

2. The claimant's appointment in September 1995 was to a fixed-term post of three year's duration as a research officer with the University. The post was based at the Cavehill Building, Cromore Road, Coleraine, being part of the University's Coleraine Campus. This fixed-term post was in Anglo-Irish Literature in the University's Centre for Irish Literature and Bibliography (‘CILB'). CILB had been established in 1994 as a new research centre by the University, under the directorship of Professor Robert Welch. The function of CILB was to conduct research and teaching in the field of Irish Literature and Bibliography.

3. Upon appointment to this fixed-term post, the claimant's primary responsibilities, under Professor Welch, were to conduct research into the field of Anglo-Irish Literature, to teach the English Syllabus at both under-graduate and post-graduate level, and to carry out general school administration in the University's School of Languages and Literature, that latter School being one of three schools comprised in the University's Faculty of Arts and Humanities. The Faculty was then under the Deanship of Professor O'Keefe.

4. In March 1996, a colloquium was organised in the CILB on the topic of ‘the History of the Irish Book'. That colloquium also involved the Institute of Irish Studies at the Queen's University of Belfast (‘QUB'). Contributors to the colloquium included many leading authorities in the field of book history from various United Kingdom and Irish universities and libraries. As a result, the decision was taken that CILB and the Institute for Irish Studies at QUB should undertake to produce a History of the Irish Book (‘HIB').

5. Funding for the proposed HIB project was sourced by Professor Welch and by Doctor Brian Walker, as he then was (now Professor Walker), of QUB from the Humanities Research Board (‘HRB'), of the British Academy (otherwise referred to as ‘AHRB' and ‘AHRC'). In May 1996, it was agreed that HRB would fund the HIB project. That would take the form of an Institutional Fellowship promoted under HRB's Institutional Fellowships Scheme. With the funding arrangements having been agreed, at the start of 1997 the post of ‘British Academy Joint Institutional Research Fellowship in History of the Irish Book' was advertised. The claimant successfully applied for that post and she took up the position as Research Fellow with effect from March 1997.

6. The specific funding arrangement agreed for the Fellowship with HRB was that HRB would fund the Fellowship post for an initial period of four years from inception. Thereafter, it was agreed that there was to be an obligation jointly placed upon the University and QUB to proceed to fund the Fellowship for a further three year period, thereby concluding the seven year duration of the Fellowship post.

7. The written job description for the Fellowship provided for a contract term of seven years, fixed-term, that term being so timed as to coincide with the four-year duration of the HRB funding, then followed by the three-year funding jointly on the part of the University and QUB. The Fellowship post-holder was required to report both to Professor Welch of the University and also to Professor Walker of QUB.

8. The Fellowship post job description provided that the person appointed would undertake a key role in assisting the HIB General Editors (Professors Welch and Walker) in the compilation of the proposed HIB work. That work was proposed to be divided into five volumes. The post-holder was required to undertake considerable primary research and to contribute significantly to the final HIB product. The specific duties and responsibilities were set out in the written job description as follows:-

“1. To undertake primary research into the creation, distribution and reception of the Irish Book.

2. The assignment of work relating to specific areas, or periods in line with experience, expertise and interest.

3. Assisting the General Editions (Sic.) in determining the nature and content of individual volumes and assisting in the co-ordination and administration of the project.

4. To contribute to the development of the electronic data set which has been established as an information bank for the project.

5. The undertaking of limited teaching duties to relieve the General Editions (sic.), as appropriate, up to a maximum of five hours per week.

6. To work to tight deadlines to produce impeccable text and to assist in the overall editorial task.

7. The attendance at regular progress meetings and the provision of up-to-date accurate progress reports, both orally and in writing, for discussion at such meetings.

8. Travel to research, throughout Ireland/UK and further afield as necessary.

9. Attendance at relevant conferences in support of the project.”

9. In pursuance of these Fellowship duties, from March 1997 onwards, the claimant carried out research into sources for the HIB project. In the course of doing so, in addition to the individual research, the claimant attended various conferences and meetings, both at home and abroad. The claimant also assisted Professor Welch in preparing funding proposals for additional research funding and in generally assisting in the co-ordination and the administration of the project, which project was 'headquartered', as Professor Welch put it, in CILB.

10. In October 1999, the claimant received a letter from the Commissioning Editor of Oxford University Press (‘OUP') confirming that OUP delegates had agreed to accept for publication the HIB and that the claimant was to be appointed as the sole editor of Volume IV of the HIB. The suggested delivery date for that Volume to OUP was 31 March 2003. The editorship was contracted by OUP with the claimant in November 1999. In addition to receiving a written editorial contract, the claimant also agreed to publish a chapter for inclusion within the work to be entitled ‘Post-Famine Social Change and Reading Practice', and further, two smaller case studies respectively called, ‘Reading the Land War', and, ‘Popular Reading for Women', and also a, ‘Guide to Sources for Irish Book History 1800-1900', and an ‘Introduction' to the work.

11. From the outset of her employment, the claimant had been allocated by the University a teaching function. She initially carried out that in conjunction and in coordination with Professor Welch's teaching allocation. Precise records of the teaching allocation apportioned to the claimant do not appear from any statistical information seen by the tribunal prior to the academic Year 2000 – 2001 (which academic year the tribunal believes commences at the end of September of each year), at which time the claimant was recorded as having a teaching allocation of 71 hours devoted to lectures and seminars.

12. Funding for the Fellowship post, after the conclusion of the fourth year and the end of the AHRB funding, then moved to the phase of joint funding by the University and by QUB. That was with effect from March 2001. In the academic Year 2001 – 2002 the claimant's recorded teaching allocation increased to 95 hours. It then increased further to 191 hours in the Year 2002 – 2003 (beginning end September 2002). In the Year 2003 – 2004 (beginning end September 2003), the teaching allocation was recorded as being 240 hours. That latter figure represents, as the tribunal understands it, from end September/start October 2003 onwards, a full teaching load when compared with the customary teaching allocations of full-time lecturers at the University.

13. In the years from March 1997 and onwards, as mentioned, the claimant attended various conferences and extended and expanded her research into the area of book history relating to the 19^th Century. The claimant also gathered specific material for a monograph upon which she was at that time working which was to be entitled, ‘Beleaguered Fields – The Land War in Fiction'. The claimant also entered into collaboration with a Doctor Heidi Hansson, a Swedish Academic, a Visiting Fellow at CILB, in regard to a project which had received funding from the Swedish equivalent of HRB. That collaborative project with Doctor Hansson was to be entitled, ‘Double-Take: 19^th Century Irish Women's Writing'. The claimant also collaborated with Doctor Hansson on projects entitled, ‘Writing the Interspace: A Study of Emily Lawless', and, ‘Out of Context: 19^th Century Irish Women's Prose'. The tribunal had better make the comment at this point that the evidence did refer to works under titles or descriptions that appear to have been, as it were, working titles or descriptions, and these did alter somewhat in the references made to these works throughout the course of the hearing.

14. The Research Assessment Exercise (‘RAE') is undertaken at periodic intervals in order to assess the quality of research of all UK universities. It is on the basis of the RAE performance that academic funding is allocated to universities. The RAE panel tasked in any case to do that will assess the published work submitted by each academic. Both the individual and also the collective grades achieved upon RAE assessment of any university's academic staff will accord not only an appropriate degree of status to each university and academic institution but, also and most importantly, an appropriate funding allocation. The claimant had produced very satisfactory work in respect of the 2001 RAE exercise (gaining a mark of “4” against a possible maximum mark of “5*”). Professor Welch did accept in the course of the hearing that the claimant had certainly produced quality research for that 2001 RAE. His prediction at the time (2001) was that the claimant would in the future produce research to an excellent standard.

15. The claimant's RAE strategy, aimed towards the next RAE exercise which the tribunal believes was to be conducted in 2008, was intended to include, firstly, Volume IV of the HIB, secondly the proposed publication, ‘Writing Fiction/Reading History: The Irish Land War in Fiction', thirdly, a material culture project intended to make available certain edited electronic editions of works of popular fiction, fourthly, the monograph entitled ‘Double-Take: Irish/Swedish Project', fifthly, the project which aimed to re-examine Irish women's fiction in the broader framework of history, ‘Out of Context : Women's Fiction in 19^th Century Ireland' (co-edited with Doctor Hansson) and, ‘Behind the Book : Emily Lawless' (co-edited with Doctor Hansson).

16. Apart from the claimant's teaching allocation and the time taken up in research, the claimant also performed other functions of behalf of the University. These other functions, as it were, ‘evolved' in nature and extent as time went on. This evolution seems to have occurred by a process of suggestions being made on behalf of the University, particularly by Professor Welch, that the claimant might wish to undertake various additional duties, to which suggestions, the claimant, as far as the tribunal can observe from the evidence, was a rather willing volunteer. The tribunal, having heard the evidence, is quite clear in its understanding that the claimant was, in general terms, of a positive disposition and she quite willingly undertook these additional duties as and when the situation arose or the opportunity presented itself.

17. That process of ‘evolution' in respect of these additional duties seems to have commenced quite early on in the claimant's tenure of the post. The claimant had commenced undertaking general administrative duties in the CILB in order to assist Professor Welch, the Professor then being the Director of CILB. There was a difference at hearing between the parties regarding the extent to which those CILB administrative duties might have eroded the time otherwise available to the claimant to carry out her research into the HIB project in the early years of that project. On the evidence, the tribunal was unable to make any precise determination as to any degree or extent of possible erosion of time. However, the tribunal does in general terms conclude from the totality of the evidence that, certainly from 1997 up to the Year 2000-2001, the time afforded to the claimant to conduct any necessary HIB research and other work in connection with the HIB project was not detrimentally affected to any significant extent by those CILB administrative duties.

18. In the early years of the Fellowship the claimant appears to have had a relatively light teaching load in assisting Professor Welch. The conclusion drawn by the tribunal from the evidence is that the teaching, administrative, and other duties assumed by the claimant in the first four years of the Fellowship term under the AHRB funding phase do not appear to have been particularly onerous in terms of demands on the claimant's working time. However, with the undisputed statistics for the later period to hand, the escalation in the extent of the claimant's teaching allocation is clearly a matter of record, especially in the years 2002-2004. This increase in teaching hours does indeed coincide with the funding for the Fellowship moving from AHRB to the phase of joint funding by the University and by QUB. By the end of the second phase of funding, the academic year 2003 – 2004, the claimant had what seems to be in all respects a full teaching load.

19. In respect of all of this, from the evidence available to the tribunal it seems that the claimant did not raise any voice of protest or note of dissent. The same can be particularly said about the imposition of the full teaching allocation in 2002-2004 and indeed in regard to any of the other duties assumed by her at the time, some of which are referred to more particularly below.

20. In June 2000, Professor Welch was appointed as Dean of the University's Faculty of Arts and Humanities. The claimant took over in that month as Academic Administrator of CILB. The claimant also agreed with Professor Welch to undertake a function in the University's clearing procedures in the mid-part of 2000. The claimant, together with other persons, carried out a function in relation to admissions and admissions enquiries. This was a rather demanding but also a rather short-term function in duration. The claimant also undertook the functions of Admissions Tutor in English at this time. In addition, in early 2002 the claimant became acting Director of Admissions to the University's Faculty of Arts and Humanities, a position that she held until early 2003.

21. The claimant also undertook responsibility for developing new courses. These included the creation of new modules for the English course and the development of a new MA Course. The claimant was responsible for the production of two modules on the MA in Irish Literature in English course. The claimant also assumed responsibility for co-ordinating a course in media, film, cultural and gender studies.

22. The claimant was appointed as acting Head of the Research Graduate School in May of 2002. That came about as the Head of the Research Graduate School was off on sick leave and Professor Gillespie requested the claimant to stand in for that person. When the Head of the Research Graduate School returned from sick leave in January 2003 and resigned, the claimant was requested to continue so acting. It seems that Professor Welch envisaged that the claimant might be officially appointed as the new Head of the Research Graduate School once she had become a permanent member of the University's staff.

23. The claimant also had responsibility for the supervision of post-graduate students, either in her own right or jointly with other academic staff. She was well-regarded in the Faculty as having a particular skill and ability in regard to pastoral care towards both under-graduate and post-graduate students. Included amongst the post-graduate students to be supervised was a daughter of Professor Welch whom Professor Welch had specifically requested might be supervised by the claimant. The claimant enthusiastically agreed to undertake the supervision of Ms Rachel Welch under an arrangement as joint supervisor with Professor McCarthy.

24. There is no doubt that there was quite a close and amicable working relationship between Professor Welch and the claimant at the time. An illustration of that fact is that the claimant was extended an invitation on the part of Professor Welch to attend the graduation in 2002 of the Professor's daughter. That was shortly thereafter followed by an invitation on the part of Professor Welch to attend the Professor's daughter's wedding. Further, the claimant had expressly dedicated to Professor Welch her 2001 published work entitled, "Francis Stuart: Face to Face", (that being a work that the claimant had carried on from her original thesis on the subject entitled, "The reality of Unreality: The Work of Francis Stuart", in 1994)

25. Specifically absent from the evidence was any indication of oppressive conduct or behaviour on the part of Professor Welch towards the claimant, such as, if indeed it had existed, might have been instrumental in inducing the claimant to undertake any additional duties and responsibilities that were not expressly included in the claimant's original job description. Certainly the general tenor of the evidence suggested to the tribunal that the claimant willingly assumed these additional roles and functions. It is possible that, perhaps amongst other reasons, the claimant regarded it as being advantageous to her career prospects to do so. Also it appears to the tribunal that the claimant felt that it would a prudent idea to make herself ‘indispensable'.

26. If there was any form of what might be described as inducement applied (whether benign and with a view to the claimant's benefit, or otherwise) such as to persuade or to motivate the claimant to undertake these various functions, it is difficult for the tribunal to judge as a matter of degree. The best that the tribunal can say of the situation is that there was seemingly some degree of mutual benefit observed by both parties (the claimant and the University) in these arrangements. Put simply, the suggestions were made on behalf of the University that the various functions might be performed by the claimant; the claimant thought that it was in her own best interests in terms of her career prospects and her status with the University willingly and enthusiastically to undertake any additional functions as and when the opportunities arose.

27. The additional duties certainly required a degree of time and effort on the claimant's part. The tribunal has already observed that from 1997 up to the Year 2000-2001, the time afforded to the claimant to conduct any necessary HIB research and other work in connection with the HIB project was not detrimentally affected to any significant extent by the CILB administrative duties. The same can be said about any other duties during the four-year AHRB funded period up to 2001. However from the next funding phase onwards there was an escalating teaching load and the assumption of other duties. In terms of the investment of time needed to perform these additional functions and duties, it is rather difficult for the tribunal (notwithstanding having heard the evidence, and indeed what proved to be at times quite conflicting evidence) to assess precisely what demands were made upon the claimant's HIB research and editorial time by the attendance to these additional functions and whether there would still have been adequate time properly to attend to what was required by the HIB project in a timely fashion, perhaps by effectively prioritising work or by seeking timely assistance or relief as appropriate. There is certainly no conclusive evidence of the claimant being under stress or being in any position where relief from duties was required or requested by her prior to the end of 2003 and the early part of 2004.

28. Turning perhaps at this point to examine the way in which the HIB project was proposed to be undertaken, the arrangement was that the work was to be in five volumes, these being as follows:-

Volume I - The Gaelic Manuscript Tradition

Volume II - Publishing in Irish

Volume III - The Irish Book in English – 1550 – 1800

Volume IV - The Irish Book in English – 1800 – 1900

Volume V - The Irish Book in English – 1900 – 2000

As mentioned, the HIB was to be published by OUP. The General Editors overseeing the entire project were Professors Welch and Walker. The editorship of each volume was contracted by OUP on the basis of a single or joint editorship. Volume I had a number of editors but ultimately was edited by Professor O'Corrain. Volume II was jointly edited by Doctor Alan Titley and Doctor Frank Sewell. Volume III was jointly edited by Professor Gillespie and Professor Andrew Hadfield. Volume IV, as mentioned, was solely edited by the claimant. Volume V was co-edited by Doctor Clare Hutton, Doctor Patrick Walsh and Professor Dermott Keogh.

29. Volume III had been published in November 2005. No other Volume had been published by the time of the hearing. It was a matter of much comment in the course of the hearing that there had been a general expectation at the outset that all five HIB volumes would be completed within a particular (in hindsight rather optimistic) timescale. That timescale was recorded at the outset after the initial discussions and then was contracted by OUP. However, the contracted timescale initially agreed in respect of all five volumes had, it would appear, been substantially under-estimated at the time of the original inception of the HIB project. A chronology of the position as agreed with OUP (as noted at May 2003) is perhaps useful to set in context the comparison which the claimant's case invited with the other Volumes:-

Volume I

Deadline for materials to Editorial Assistant – 19 September 2003.

Deadline for delivery to OUP – end of August 2004.

Volume II

Deadline for materials to Editorial Assistant – 25 July 2003.

Deadline for delivery to OUP – 28 February 2004.

Volume III

Deadline for materials to Editorial Assistant – March 2003.

Deadline for delivery to OUP – 31 July 2003.

Volume IV

Deadline for materials to Editorial Assistant – December 2002.

Deadline for delivery to OUP – December 2003.

Volume V

Deadline for materials to Editorial Assistant – December 2002.

Deadline for delivery to OUP – March 2004.

30. It is the case that Volume VI was expected by the General Editors to be published first on account of the fact that the claimant as editor held a seven year Fellowship contract. All of the five HIB Volumes had significant overruns in respect of the originally estimated deadlines. The most successful in terms of deadline achievement was of course Volume III which was delivered to the General Editors in 2004 and which was published in November 2005. The tribunal had little information made available to it in the course of the hearing regarding Volume I. However, Volume II was conceded by the University as being very substantially adrift of the original deadline. Volume V had been delivered to the General Editors some time, so the tribunal understands, in 2005.

30. Looking then at the situation specifically pertaining to Volume IV, the claimant had availed of the benefit of the seven year contract in the course of which she had conducted work on the HIB project and she had also performed the other tasks and duties on behalf of CILB and the University. Although not contracted with OUP as Volume editor until November 1999, much of what had been done before that in the course of the Fellowship consisted of relevant research which, as the tribunal understands it, would have potentially got the claimant off to a good start once the OUP contract came along. Contractually, the claimant was indeed in a unique position; no other Volume editor held a seven year term Fellowship contract and so the General Editors, Professors Welch and Walker, regarded the claimant as being in a uniquely favourable position. In regard to Volume IV, originally the claimant was required under the OUP editorial contract to submit all materials to OUP by the deadline of 31 March 2003 (that deadline was later extended, as is mentioned below).

30. On 30 April 2003, AHRB wrote to Professor Welch with reference to a Final Report from the University concerning the claimant's Fellowship which report had been received by AHRB in September 2002 and was submitted to AHRB's independent evaluators and then to the AHRB reviewers for comment. The letter informed Professor Welch that AHRB had graded the report on the Fellowship as being ‘problematic'. A supplemental report was requested by AHRB to be submitted by the University to AHRB by the end of the following month.

30. Amongst the concerns expressed by certain of the AHRB evaluators were that, two years after the conclusion of the AHRB funding, the activities of editing Volume IV (to quote from one section of the report), '...still seem to be projected rather than achieved'. It was further commented in the AHRB evaluation reports that the Fellow seemed to have spent a lot of her time on projects that were not in the proposal – that seemed to have taken over too much; the output was not satisfactory. The question was posed as to why was it that still, in year five of the Fellowship, the Fellow was ‘...contracting contributors and liaising with OUP'. The author of these rather critical comments was clearly concerned about seeing the evidence of actual progress.

30. In response to this being received from AHRB, Professor Welsh wrote to the claimant on 6 May 2003 enclosing a copy of what he referred to as being a, ‘devastating report'. He commented that this was very damaging to the project, the University, the Institute (CILB) and indeed the claimant. Professor Welsh encouraged the claimant, as a matter of urgency, to prepare a full report on all the relevant issues for submission to AHRB.

30. The claimant drafted a detailed supplemental report, with considerable input from Professor Welch. This supplemental report, dated May 2003, was then submitted to AHRB. The supplemental report went into quite some considerable detail by way of a review of the stated activities which had been undertaken by the Fellow from March 1997 and up to May 2003. Apart from other matters, AHRB had expressed concerns about the issue of ‘mainstreaming' the Fellow into the establishment of the University. In the supplemental report, Professor Welch as Dean recorded that it was his intention to do all that he could to mainstream the Fellow into the staffing complement of the English Department at the University. The report contains the following:-

“It is my intention, as Dean, to do all that I can to bring this about, and to mainstream the Fellow into the staff compliment of English at the University of Ulster……and the strongest representations have been made to Human Resources at the University of Ulster. It is because we had this resolve that the Fellow was, in the past two years, fully integrated into the work of the School…… However it must be said that while a position will be created to which the Fellow will apply, and which will reflect this field the Arts and Humanities Research Board Grant has allowed us to develop at the University of Ulster, nevertheless Equality Legislation in Northern Ireland is such that posts cannot be created for specific individuals, for reasons I know I do not have to expand upon.”

36. Professor Welch, at that particular time, felt that he was fairly in a position to express to AHRB that the project, although delayed to some degree, was in good shape and was indeed quite well-advanced. The Professor was of the opinion that a careless and unsatisfactory initial report had allowed the AHRB evaluators to form an opinion as to the state of progress which did not do justice to the considerable progress that Professor Welch at that time felt had actually been achieved. Whilst Professor Welch regarded the unsatisfactory AHRB report as being a matter of much concern, nonetheless the Professor continued to be of a very positive frame of mind about the project, generally, and about the claimant's essential contribution to the project, in particular. From his evidence, the tribunal understands that it was regarded as important to the Professor to be 'upbeat' and very positive in his remarks to AHRB, as any negative comment at that point could have been damaging. That upbeat attitude therefore pervaded the Professor's contributions to the report. In such a frame of mind, at least at the time, Professor Welch was quite content to allow the claimant to ‘get on with her work', as he saw the situation.

36. After a symposium in respect of HIB Volume V had been held in London, it was decided to hold a symposium for Volume IV in October 2003. The Volume IV symposium duly proceeded, held on 18 October 2003, and all of the Volume contributors present, save for the claimant, presented short papers concerning their work. Additional areas where contributions might have been sought were identified and steps were taken to resolve any emerging or identified issues concerning possible overlapping contributions.

36. Seemingly by reason of the fact that the claimant did not present a paper at the Volume IV October symposium, a decision was taken by Professors Welch and Walker after the symposium had concluded to ask the claimant to produce some of her work. A memo dated 31 October 2003 sent by Professor Welch to the claimant reads:

'He [Professor Walker] also points out, however, that you didn't present in relation to your own topics, an unfortunate oversight. I've talked this over with Brian and we agree that it would be a good thing for us to see your pieces as well as an early draft of your introduction at the same time as your contributors will be delivering''.

36. At that time the claimant's contributions to Volume IV included the ‘Case Study: Reading the Land War; the Chapter, ‘Post-famine Social Change and Reading Practice'; the ‘Introduction', which was to be completed upon submission of all the other contributions; and the ‘Guide to Sources for Irish Book History', which the tribunal thinks was also to be completed following submission of the contributions. Notwithstanding that Professors Welch and Walker quite understood that two of the foregoing could possibly not be completed until the other contributors' work was submitted, nonetheless the Professors felt that they were certainly entitled to enquire about the first two of the foregoing contributions, being the case study on reading the land war, and the chapter on post-famine social change and reading practice. The tribunal shall return to this below.

36. It was felt necessary to appoint an Editorial Assistant to HIB and Doctor Andrew Keanie was appointed as Editorial Assistant on 18 February 2002. The tribunal accepts as being credible Doctor Keanie's evidence that, prior to his appointment as Editorial Assistant, he had had a relatively amicable working relationship with the claimant. However the claimant endeavoured to discourage Doctor Keanie from applying for the Editorial Assistant's post for the reason expressed by her to Doctor Keanie that she felt she might come into conflict with Doctor Keanie in some fashion if he were to take up that post. Doctor Keanie explained to the tribunal that in his tenure of the Editorial Assistant's post he had encountered a certain resistance from the claimant and difficulty in obtaining information as to the state of progress on the claimant's part in making contact with the Volume IV contributors and in getting in the contributors' work and, further, in regard to the claimant's own contributions to the Volume. He found the claimant at times to be rather patronising or even intimidating and he encountered what he saw as a defensive and an uncooperative attitude from the claimant in response to his enquiries. As he had experienced some difficulty in making a direct approach in seeking information, Doctor Keanie had to develop methods of approach that were rather more indirect. Doctor Keanie informed the tribunal that the claimant preferred to communicate only orally with him and to allow matters to be left rather vague and not to be, as it were, ‘pinned down'. This hampered his work and proved to be rather frustrating to him.

36. That frustration on his part is evident from the following e-mail sent by Doctor Keanie to the claimant on 21 November 2003, stating as follows:-

'I have spoken with Bob [Professor Welch], and have several points I must make to you at the urging of the gen Eds: I have been urged in the strongest terms to get the volume 4 material for them to read. They have in mind the OUP deadline of 30 January 2004….They are particularly urgent about reading your essays (not the introduction, which of course can't be written without all the stuff in). I did say that your drafts were well on, and this reassured Bob somewhat. But he wants copies for both he and Brian, [Professor Walker] via me. I know that Bob is not willing to think about asking to change the OUP deadline”.

36. Doctor Keanie also specifically mentioned these issues in an e-mail sent by him on the same date, 21 November 2003, to Professors Welch and Walker. In that latter e-mail Doctor Keanie did state that the editor's ‘Introduction' could not be written until all the material was in, but Doctor Keanie confirmed that he had urged the claimant to submit to him the claimant's own contributions being the, ‘Case Study: Reading the Land War', ‘Post-famine Social Change and Reading Practice', and the ‘Guide to Sources for Irish Book History'. Doctor Keanie recorded in the email that the claimant had informed him that she was unable to complete these until she got vital material at the British Library, at which location she intended to work intensively from 16 December 2003 until 7 January 2004. Doctor Keanie also recorded in the email that the claimant had found significant overlaps with work from Doctor Ralph Loeber (a Volume IV contributor) and that the claimant had therefore had to backtrack considerably on the draft of her main chapter. Finally, Doctor Keanie recorded that he had been told (by the claimant) that he would receive the claimant's case study and the chapter and the sources guide on 7 January 2004 and that the claimant was not looking for any extension beyond 31 January 2004 (that latter date being of course the revised deadline with OUP).

36. Any overlaps between the work of the Volume IV contributors would have been apparent, it must be presumed, if not before certainly from the time of the Volume IV symposium, held in October 2003. It appears that after the symposium and on account of the perceived overlap between the claimant's work and that of Doctor Loeber, the claimant had either decided to amend her existing chapter to some extent or to write a different chapter. The amended or the different chapter was to be entitled, ‘Industrialisation, Distribution and the Book Trade', and that was to be in place of, ‘Post-famine Social Change and Reading Practice'. The foregoing does not appear to be taken account of in the content of the 21 November 2003 e-mail sent by Doctor Keanie to Professors Welch and Walker, nor to have been taken account of in correspondence sent by Professor Walker to the claimant dated 10 December 2003 whereby the Professor was requesting sight of the claimant's work by 9 January 2004. In both of these the ‘old' title is mentioned.

36. The tribunal found this somewhat difficult to understand. The claimant's Fellowship provided for, ‘….. attendance at regular progress meetings and the provision of up-to-date accurate progress reports, both orally and in writing, for discussion at such meetings….'. Apart from other meetings around this time, there had taken place a meeting between Professors Welch and Walker, Doctor Keanie, and the claimant on 28 November 2003 at which meeting the claimant had been requested to provide an update on the work concerning Volume VI. The tribunal can only conclude that at that meeting the claimant did not make it clear that she was working on the new or revised chapter (on account of the overlapping with Doctor Loeber). Clearly Professor Walker, as General Editor, who as such ought to have been fully aware (and to have been fully appraised by the claimant) of the up to date situation seems at that point to have been be unaware of the change in chapter title (and presumably content) from his 10 December 2003 letter.

36. It is perhaps worth while examining a little the communications between Doctor Keanie, as Editorial Assistant, and the claimant in respect of deadlines. The claimant maintained that just before the symposium in October 2003, she had received a letter from OUP containing a rider to her contract revising the delivery date to 31 January 2004, (the original delivery date having been 31 March 2003). The claimant stated that she had brought to the attention of Professor Welch her perceived difficulty with that 31 January 2004 deadline, for the reason that certain essential contributors were still fully committed to other publications at the time. Therefore when the claimant had received the rider from OUP she contended that she had contacted Doctor Keanie and had informed Dr Keanie that she was not in a position to sign agreement to the revised OUP deadline for the reason that the contributions were not going to be in until January of 2004 and that, thereafter, the job of editing would take a further nine months to complete. Further, the claimant maintained that when she had received the e-mail from Doctor Keanie on 21 November 2003 which stated that Professor Welch was not willing to ask OUP to change the deadline, she was dismayed.

36. Doctor Keanie's evidence to the tribunal contradicted part of the foregoing in that Doctor Keanie informed the tribunal that the claimant did not immediately contact him to tell him that she was not going to sign the revised deadline rider with OUP. Doctor Keanie's version of things was that the claimant had told him at the time that things were moving along quite satisfactorily.

36. In determining which of those two accounts to accept, the tribunal notes the fact, which has indeed been alluded to in evidence by Doctor Keanie, that the claimant does not appear to have recorded, whether by making contemporaneous notes or by sending memoranda or dispatching e-mail transmissions at the time, any corroborative material which might have otherwise been of assistance to the tribunal. In view of the nature of the claimant's profession, the tribunal finds that fact rather odd. It does coincide with Doctor Keanie's assertion in evidence that the claimant preferred to communicate orally only, the point of the assertion made by Doctor Keanie being that the claimant wished matters to be kept rather intentionally vague. The tribunal is therefore dependent upon whatever (indeed rather sparse) documentary evidence there might be to set alongside the oral evidence of the parties. Carrying out an examination of the evidence, on balance, the tribunal does accept that the claimant sought to reassure Doctor Keanie that the drafts were well advanced and thus Doctor Keanie was entrusted by the claimant to convey that message to Professor Welch. That reassurance is therefore confirmed in Doctor Keanie's e-mail sent to Professors Welch and Walker on 21 November 2003, mentioned above. For the reason that the tribunal simply does not accept that Doctor Keanie would have deliberately chosen to follow such a high risk strategy in order to further his own interests (notwithstanding the claimant's representative's suggestion that Doctor Keanie for that purpose deliberately misinformed the Professors in respect of the foregoing), the tribunal does not accept that Doctor Keanie was anything other than truthful in providing the foregoing reassurance.

36. When Professors Welch and Walker, together with Doctor Keanie, met with the claimant on 28 November 2003 and the position in respect of Volume IV was discussed, the claimant stated that she required some extra time to complete both her chapter and also the case study and she agreed to submit these to Professors Welch and Walker by 9 January 2004. Professor Walker then wrote to the claimant on 10 December 2003 confirming what had been agreed, as he understood it to be.

36. Because of the situation in which the claimant found herself at that time, that is to say the end of November and December 2003, Professor Welch together with the claimant's line manager, Professor Gillespie, discussed with the claimant possible relief from her other duties, including teaching. However, as it turned out (whether that was on account of the claimant stating that no teaching relief was required, or because obtaining such relief was impossibility in practice), no relief from teaching and other duties did become available to the claimant in January or February of 2004.

36. Whilst the claimant consented to the delivery of her work to Professor Welch by 7 January 2004 (or 9 January 2004), there is no record of her responding to Professor Welch in an endeavour to correct the apparent mistake made in the specification of what was indeed to be delivered, as recorded in Doctor Keanie's e-mail of 21 November 2003. A similar situation applies in regard to the letter from Professor Walker of 10 December 2003 where the Professor (presumably due to his not being informed that there was any change in the chapter) refers to, ‘your two chapters on the land war and Post Famine social change and reading practise'.

36. As it transpired, the claimant did not deliver the expected material by 7 January 2004 (otherwise 9 January 2004 as was requested in his letter by Professor Walker) and a meeting was held on 19 January 2004 attended by Professors Welch and Walker, Doctor Keanie, and the claimant. The tribunal accepts from the evidence that the schedule which was agreed with the claimant at that meeting was as follows:-

• 19 February 2004, the General Editors were to receive the claimant's chapter, ‘Industrialisation, Distribution and the Book Trade'.

• 17 March 2004, the General Editors were to receive all edited Volume IV material, except for the general introduction.

• 7 May 2004, the General Editors were to receive the claimant's general introduction.

• 3 September 2004, OUP were to receive the entirety of the Volume IV material.

36. As the claimant had agreed to a date of 19 February 2004 for the submission of her chapter on “Industrialisation, Distribution and the Book Trade', she was unfortunately hampered in her progress towards that date by being ill with influenza for a period of about two weeks in early February 2004, although she was only actually absent from work for some two days.

36. Professor Welch's secretary on 23 February 2004 sent to the claimant an e-mail confirming that the chapter which was due by 19 February 2004 still had not been delivered. The claimant was requested in that e-mail to confirm when it would be delivered and was requested to e-mail the Professor immediately. The tribunal shall return to the events that occurred at this time further below.

36. It was envisaged that the claimant would be integrated into the University by becoming a permanent member of staff. That fact is, for instance, reflected in the aspiration contained in the 2003 Supplemental Report to AHRB. However the report does record expressly that any such appointment would be subject to advertising and to open competition in respect of the post as that was viewed by the University as being the proper and correct procedure.

36. On 30 September 2003, Professor Welch directed a memo, inter alia, to the Vice-Chancellor of the University presenting a very positive picture of the claimant's contribution as Research Fellow in respect of the HIB project and speaking in complimentary terms concerning the claimant's other contributions to the University. The memo stated as follows:-

“I am requesting that Doctor McCartney be confirmed in a permanent position as from 1 April 2004.”

The unavoidable conclusion to be drawn from this unqualified request to the Vice-Chancellor is that Professor Welch was at the time enthusiastic concerning the prospect of a permanent appointment being afforded to the claimant. Professor Welch was therefore requesting the University authorities to examine the possibility of a permanent appointment of the claimant in whatever way that could be made or structured. However, both from the 2003 Supplemental Report to AHRB and from Professor Welch's evidence to the tribunal, it is clear that the Professor also understood that there were certain recruitment practices and procedures which ought properly to have been pursued by the University in any such appointment.

7.56 A decision was therefore taken that there was to be an open recruitment exercise on the basis of a competitive appointments procedure, with advertising and a job description being devised, and based upon individual applications and an interview process. The claimant was informed of that fact by Professor Gillespie towards the end of September 2003. As the claimant had regarded it as being a matter of mere formality that she would be confirmed at the end of her fixed-term contract as the holder of a permanent post, the claimant was somewhat unhappy about, as she saw it, having to apply for a post which she regarded as being hers by right.

57. Professors Welch and Gillespie drew up the specification for the post. There is no doubt that the specification was devised bearing in mind the work which had been carried out by the claimant both in respect of the HIB project and also in regard to the other duties which she had performed. As Professor Welch confirmed to the tribunal, the job specification was drawn up both to reflect the expertise which the grant-funding had achieved in regard to the Fellowship and also the existing strengths of the Faculty work then being carried on. Accordingly a post entitled ‘Lecturer in English and Irish Book History' was advertised at the end of January 2004 with a closing date for applications of 13 February 2004 and with proposed interviews to be held on 27 February 2004.

57. The claimant did comment in the course of hearing as to a disparity between the advertised requirement for specialist knowledge of book history with reference to Ireland and the omission of that from the short listing criteria. Be that as it may, there was no evidence that any disparity between the two was engineered so as to expose the claimant to any disadvantage nor to favour any other candidate for the post. None of the members of the proposed interviewing panel was in any way connected with the short listing exercise. After the short listing exercise had been completed, the interviews of those short listed were scheduled to take place on 27 February 2004.

57. On 19 February 2004, Professor Patrick Crotty, Head of Subject, approached the claimant and endeavoured to make some suggestions to the claimant to assist her with her interview technique. That approach had been suggested by Professor Welch. As the tribunal did not hear any direct evidence from Professor Crotty about this, taking account of the evidence from both the claimant and from Professor Welch regarding this suggestion, there is nothing enabling any other conclusion to be drawn by the tribunal but that this was intended to be a genuinely helpful gesture. It was made in view of a certain difficulty which the claimant apparently had earlier encountered in regard to another post for which she had applied about one year or so before (that being a Lectureship in Irish Women's Writing) and concerning a perceived underperformance on the claimant's part at interview on that occasion. This was not done so as to unsettle the claimant, as the claimant had contended, indeed quite the contrary.

57. The claimant met with Professor Welch on the afternoon of 23 February 2004. There was a considerable conflict between the evidence of the claimant and that of Professor Welch as to what transpired at that meeting. In the absence of any corroborative evidence, the tribunal's conclusion of fact is that Professor Welch repeated his request to the claimant that she produce the work that had been requested previously; a similar request was made by Professor Welch the following day, 24 February. In response to these requests the tribunal accepts the claimant's evidence that she worked overnight in her office on the chapter on the evening of 25 February and on the following day, 26 February, she dispatched by fax transmission to Professor Welch a draft of the work. That work consisted of ten pages of text, a one page outline of the remainder of the work to be done, and two pages of end notes. Professor Welch indicated to the tribunal that what was received from the claimant was quite inadequate, being only partially-drafted, and constituted further evidence of the fact that the claimant had not applied herself rigorously to the task.

57. Turning now to the matter of the interview for the post, there were two interviewees, these being the claimant and Doctor Jonathan Allison. Doctor Allison was then a visiting Fellow at the Institute for Advanced Studies in Humanities at the University of Edinburgh. The interviewing panel consisted of Doctor Ronnie Wilson, as Chairman of the panel, together with Professor Welch, Professor Gillespie, Professor Crotty, Doctor (now Professor) Elisabeth Lillie, and Professor Walker was a non-voting member of the panel.

57. The interviews took place on 27 February 2004. As the tribunal understands it, the claimant was interviewed in advance of Doctor Allison and in the course of the interview of the claimant by the panel the various interviewers in turn asked the claimant questions devised to cover specific areas designed to be tested. Professor Walker invited the claimant to discuss the extent of her publications. In response, the claimant made no mention of the wide range of duties which she undertook in the University in addition to her work on the HIB project; she did not provide any explanation to the panel in respect of any demands that might have been made upon her time which might have prevented or delayed publication or reduced the extent of what might otherwise have been published. It appears that the claimant, in reply to Professor Walker's invitation, provided an answer which was connected with the issue of grant funding and how that might have restricted publishing, nothing else.

57. Professor Welch addressed a question to the claimant concerning the topic of resources in 19^th Century Book History. The answer given by the claimant was, in the opinion of Professor Welch, fundamentally flawed. Professor Welch regarded this as being a serious mistake that displayed a basic misunderstanding on the claimant's part. In regard to that issue, the tribunal heard evidence both from the claimant and also from a witness called on behalf of the claimant, Professor Simon Eliot. In addition, the tribunal heard from Professor Welch. There were expressed conflicting opinions as to whether or not the claimant was or was not mistaken in her answer to Professor Welch's question. It must be said that the tribunal is quite unable to reach any determination on the issue, notwithstanding the detailed evidence. The tribunal does not have the capacity to adjudicate upon what appears to it to be an area for academic debate; the answer is not readily accessible to the members of this tribunal who entirely lack any expertise in this area of academic endeavour.

57. As regards the process of marking and scoring the claimant and Doctor Allison, each member of the interviewing panel was permitted to score and to mark either as the interview progressed or, alternatively, to carry out that exercise upon conclusion of the interview with the candidate. Once the interviews had been completed, the panel set to work to discuss the applications and the content of the interviews. In the case of the claimant, the panel members were invited in turn to express their views.

57. It appears that Professor Welch allowed most if not all of the other parties to express their views first, until his turn came. Having a certain measure of expertise which was not available to some of the other panel members, Professor Welch drew to the attention of the other panel members what he regarded as being a significant error in the claimant's answer to the question on resources in 19^th Century Irish Book History. Professor Walker concurred. The other panel members, with the possible exceptions perhaps of Professors Crotty and Gillespie, did not have the necessary expertise and were thus content to rely on the opinions expressed by two acknowledged experts, Professors Welch and Walker. The consensus view, on that basis, was that an error of significant proportions had been made by the claimant.

57. Furthermore, the topic of the extent of the claimant's published work and the position regarding the claimant's contribution to HIB Volume VI was discussed by the panel and posed a significant concern to the members. Professors Welch and Walker both explained to the tribunal that they had felt that there was no option but to bring any prior knowledge on their part to bear in this situation, rather than be seen to endorse claims made by the claimant that both Professors Welch and Walker felt were unsupported by the reality of the situation. They both felt that it was fair to do so under these particular circumstances and that to have failed to do so might have allowed the panel members wrongly to draw unsupported conclusions.

57. It was suggested that the work that the claimant had indeed carried out was not as far advanced as she had indicated and that, in particular, the draft HIB chapter which the claimant had recently provided was incomplete and far from adequate. The majority of the panel members would have had no knowledge of that information. The panel then discussed what was regarded as being the rather far-reaching and serious implications of this. The consensus view achieved in the course of some very extensive panel discussions was that the claimant had ‘oversold', as it was put, her actual achievement. For example in her application form dated 12 February 2004 the claimant had described her chapter, 'Distribution and the Book Trade (8,000 words)', as ‘complete', whereas the draft work delivered to Professor Welch on 26 February 2004, the day before the interview, was regarded as being quite inadequate and far from complete. That fact was generally regarded by the panel as being rather disappointing. Professor Gillespie's evidence in recollection of this was that in the panel discussions the claimant was not seen as misrepresenting but rather as overselling the extent of her work. Professor Lillie recalled that possibly ‘misrepresentation' had been discussed. In the course of some rather intense discussions, the various panel members appear to have had some difficulty in understanding why the claimant's actual output of published work seemed to be so ‘thin' considering that the claimant had been in the Fellowship post for a period of seven years; the panel would thus have expected a much more impressive list of actual published work. The listed publications in the claimant's application consisted of the published Francis Stuart book (mentioned above) and five published articles.

57. In contrast to the claimant's perceived problematic achievements as regards publications, Doctor Allison was judged by the panel to have attained an impressive list of publications in the range of work undertaken by him. The listed publications in Doctor Allison' application consisted of three published books and twenty-one published articles.

57. The aim of the discussions was to achieve, if at all possible, a consensus between the various panel members. It appears (from Professor Lillie's evidence) that Professor Walker suggested a possible solution whereby the claimant might be provided with a post for a trial period of some months. It was explained to the other panel members, who might not have been aware of that fact, that the claimant was undertaking a number of other duties which might have interfered with the progress of her research. The panel members would of course have been aware from the detail well set out in the claimant's application form as to the extent of the claimant's duties additional to her HIB research and editorial functions. However that suggestion was not a feasible solution. The panel felt, weighing the two applications one against the other, that Doctor Allison was the better of the two candidates by a considerable measure.

57. The topic then emerged in discussions as to whether or not the claimant might nonetheless be appointed as a reserve candidate. The reason for the debate on this topic was based upon the conclusion of the panel that the significant error in 19^th Century sources, coupled with the ‘overselling', as some panellists saw it, left a significant question mark over the claimant's suitability for appointment to the post as a reserve candidate. There then followed a lengthy and protracted debate, which indeed seems to have taken up a large part of the day, on the issue of the claimant's potential to be appointed as a reserve candidate. At the end of that lengthy debate, the unanimous decision was arrived at that the claimant was to be deemed unappointable.

57. The decision having been made and the consequences of the decision discussed in some detail, the meeting concluded. After this, the claimant endeavoured to approach Professor Welch in his office. However, Professor Welch declined to discuss the matter with her. The outcome of the interview was subsequently notified to the claimant and notification of the outcome also included the information that the claimant had not being appointed as reserve candidate as she was deemed unappointable to the post by the panel.

57. The claimant was extremely upset to discover that she had not been successful. She was unfit to attend the University and she telephoned the University's Human Resources Department on 1 March 2004 and was told officially that her contract would be terminated on 9 March 2004 upon the expiry of the fixed term.

57. The claimant wrote to the University's Human Resources Department on 9 March 2004 asking for the provision of a written statement of reasons for what she alleged to be less favourable treatment contrary to Section 3 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002, and for a written statement of the reason for her dismissal pursuant to Article 124 of the Employment Rights (Northern Ireland) Order 1996. She also asked for documentation under the Data Protection Act. The University directed correspondence to the claimant in respect of various queries on her part after the date of the termination of her contract. A specific request on the claimant's part that the decision might be the subject of an appeal was met with the University's response that there was no appeal against the decision of a panel tasked with the conduct of an appointments process, such as the one in respect of which the claimant had been unsuccessful.

57. There arose at hearing an issue as to whether or not the claimant's research material, stated to have been stored on one of the University's computers, was or was not accidentally wiped off the computer system by a technician or by some other unknown party or means. The tribunal is quite unable to draw any conclusion of fact in regard to that suggestion for want of evidence.

57. The successful candidate, Doctor Allison, decided not to take up the offered post. As there was no reserve candidate, the University addressed its mind as to what to do next. It was decided that the selection criteria would be somewhat altered and that a further post would be advertised. The claimant took a decision not to apply for that further post. The next round of recruitment was proceeded with by the University. In that recruitment process for the post of ‘Lecturer in English and Irish Book History', the criteria were amended from those present in the first round recruitment to provide as follows:-

• “extensive experience of undergraduate and postgraduate course development” was changed to “experience of undergraduate and/or postgraduate course development”;

• “administrative experience in a range of academic activities, eg admissions, marketing and subject review”, was changed to become a desirable criterion of ‘experience of administration in a range of academic activities”;

• “effective organisational skills” was deleted;

• “strong, persuading and influencing skills” was deleted;

• “research publications in English Literature and in Irish Literature in English” was changed to “and/or”;

• “extensive experience of research, student supervision and direction” was changed to become a desirable quality;

• “knowledge of the current research landscape and opportunities” was changed to become a desirable quality.

57. In that recruitment process, Doctor Andrew Keanie and Doctor Nicholas Allen were short listed for interview. Doctor Allen was chosen at interview to be the successful candidate. However Doctor Allen did not take up the post and Doctor Keanie, as reserve candidate, thereafter secured the post. Both of these candidates were adjudged to have satisfactorily met the stated criteria.

57. As regards the fate of Volume IV of the HIB project, there had been some discussion apparently after the termination of the claimant's fixed-term contract concerning the appointment of a co-editor. By the stage that the tribunal hearing concluded, the tribunal had no definite information as to what progress was anticipated towards a conclusion and the submission of Volume IV to OUP.

57. The tribunal will refer to any residual findings of fact in the context of the reasons for its decision which follow below. At this point the tribunal does not intend to set out here any further findings of fact.

THE APPLICABLE LAW

Sex discrimination

8. The claimant's first complaint was a complaint of sex discrimination. The Sex Discrimination (Northern Ireland) Order 1976 (“the 1976 Order”) as amended, applies and the principal provisions of the 1976 Order of concern are Articles 3 and 7, and as far as employment is concerned, Article 8. Further, Article 63A governs issues concerning the burden of proof. Finally, Article 74 concerns the statutory questionnaire procedure and the drawing of inferences. The details of the provisions material to this case are as follows -

Article 3 of the 1976 Order, at paragraph (1) provides as follows -

“3. —

(1) In any circumstances relevant for the purposes of any provision of this Order, other than a provision to which paragraph (2) applies, a person discriminates against a woman if—

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

Article 7 of the 1976 Order sets out the basis for comparison concerning the less favourable treatment issue and provides as follows -

“7. A comparison of the cases of persons of different sex or marital status under Article 3(1) or (2) or 5(1), or a comparison of the cases of persons required for the purposes of Article 4A, must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”

Article 8 refers to employment and provides as follows -

“8. —

(1) 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.

(2) 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 opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

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

Article 63A (in respect of the issue of burden of proof) provides as follows –

“63A. —

(1) This Article applies to any complaint presented under Article 63 to an industrial tribunal.

(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 an act of discrimination against the complainant which is unlawful by virtue of 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.”

Article 74 sets out the statutory basis for the questionnaire procedure. Article 74(2)(b) provides as follows -

(b) if it appears to the court or tribunal that the respondent deliberately, and without reasonable excuse omitted to reply within a reasonable period or that his reply is evasive or equivocal, the court or tribunal may draw any inference from that fact that it considers it just and equitable to draw, including an inference that he committed an unlawful act"

The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002

The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 ("the 2002 Regulations") provide as follows:-

“ 3.  –

(1) A fixed-term employee has the right not to be treated by his employer less favourably than the employer treats a comparable permanent employee –

(a) as regards the terms of his contract; or

(b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.

(2) Subject to paragraphs (3) and (4), the right conferred by paragraph (1) includes in particular the right of the fixed-term employee in question not to be treated less favourably than the employer treats a comparable permanent employee in relation to –

(a) any period of service qualification relating to any particular condition of service,

(b) the opportunity to receive training, or

(c) the opportunity to secure permanent employment in the establishment.

(3) The right conferred by paragraph (1) applies only if –

(a) the treatment is on the ground that the employee is a fixed-term employee, and

(b) the treatment is not justified on objective grounds.

(4) Paragraph (3) (b) is subject to regulation 4.

4.  - (1) Where a fixed-term employee is treated by his employer less favourably than the employer treats a comparable permanent employee as regards any term of his contract, the treatment in question shall be regarded for the purposes of regulation 3(3) (b) as justified on objective grounds if the terms of the fixed-term employee's contract of employment, taken as a whole, are at least as favourable as the terms of the comparable permanent employee's contract of employment.

(2) Paragraph (1) is without prejudice to the generality of regulation 3(3)(b).

5.  - (1) If an employee who considers that his employer may have treated him in a manner which infringes a right conferred on him by regulation 3 requests in writing from his employer a written statement giving particulars of the reasons for the treatment, the employee is entitled to be provided with such a statement within twenty-one days of his request.

(2) A written statement under this regulation is admissible as evidence in any proceedings under these Regulations.

(3) If it appears to the tribunal in any proceedings under these Regulations –

(a) that the employer deliberately, and without reasonable excuse, omitted to provide a written statement, or

(b) that the written statement is evasive or equivocal,

it may draw any inference which it considers it just and equitable to draw, including an inference that the employer has infringed the right in question.

(4) This regulation does not apply where the treatment in question consists of the dismissal of an employee, and the employee is entitled to a written statement of reasons for his dismissal under Article 124 of the 1996 Order.

6.  - (1) A employee who is dismissed shall be regarded as unfairly dismissed for the purposes of Part XI of the 1996 Order if the reason (or, if more than one, the principal reason) for the dismissal is a reason specified in paragraph (3).

(2) - (3) The reasons or, as the case may be, grounds are –

(a) that the employee has –

1. brought proceedings against the employer under these Regulations;

(ii) requested from his employer a written statement under regulation 5 or regulation 9;……... “

Unfair dismissal

An employee has a right not to be unfairly dismissed by his employer under Article 126(1) of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order").

Article 127 (2)(b) of the 1996 Order provides that an employee is regarded as dismissed if he is employed under a limited term contract that terminates by virtue of the limiting event without being renewed.

Article 130 of the 1996 Order provides for the statutory test of fairness and states as follows-

“130. —

(1)   In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show —

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this paragraph if it—

(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) relates to the conduct of the employee,

(c) is that the employee was redundant, or

(d) …

The task of the tribunal is to establish, in such a case, whether the respondent had acted reasonably or unreasonably in all the circumstances in treating the reason as sufficient, and in doing so the tribunal shall take into account the statutory considerations set out in Article 130 (4) of the 1996 Order as follows-

“(4) Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) —

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.”

Written reasons for dismissal

Under Article 124 of the 1996 Order an employee is entitled to be provided by his employer with a written statement giving particulars of the reasons for the employee's dismissal as follows-

“124. —

(1) An employee is entitled to be provided by his employer with a written statement giving particulars of the reasons for the employee's dismissal —

(a) if the employee is given by the employer notice of termination of his contract of employment,

(b) if the employee's contract of employment is terminated by the employer without notice, or

(c) if the employee is employed under a limited-term contract and the contract terminates by virtue of the limiting event without being renewed.”

THE TRIBUNAL'S CONCLUSIONS AND DETERMINATION

9. The tribunal is conscious, in reaching its determination in a case of this nature and in setting out its reasons for that decision, of its duties as stated in Meek v Birmingham District Council [1987] IRLR 250 CA. The following authorities were cited in argument and considered by the tribunal in reaching its determination:-

Igen Ltd (formerly Leeds Careers Guidance) and others v Wong [2005] IRLR 258 CA

Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 HL

Bahl v The Law Society [2004] IRLR 799

Brown v London Borough of Croydon (UKEAT/0672/05DA) (unreported 20 February 2006) (Elias P)

Anya v University of Oxford [2001] IRLR 377

Dattani v Chief Constable of West Mercia Police [2005] IRLR 327

EB v BA [2006] IRLR 471

Lynch v Ministry of Defence [1983] NI 216

Terry v East Sussex County Council [1977] 1 All ER 567 EAT

North Yorkshire County Council v Fay [1985] IRLR 247

Barclays Bank v Kapur [1991] IRLR 136 HL

Hendricks v The Commissioner of Police for the Metropolis [2003] IRLR 96 CA

Department for Work and Pensions v Atasha Webley [2004] EWCA Civ 1745 (21 December 2004)

Mechelle Lewis v Belfast City Council NI IT (4989/99SD) (21 June 2002)

Briege Mack v Belfast City Council & another NI FET (110/99FET) (21 May 2002)

10. Having applied the relevant principles of law contained in the foregoing statutory provisions, and the considered authorities, to the material findings of fact made by the tribunal, the tribunal first turns its attention to the issue of sex discrimination, as alleged by the claimant. The tribunal notes firstly the guidance (“the Barton guidance”) stemming from the decision of the EAT in England in the case of Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332 EAT, which Barton guidance had been approved by the Court of Appeal in England in the case of Igen Limited & Ors v Wong, mentioned above, with certain modifications. The modified Barton guidance provides that, at the first stage, it is for a claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful. Essentially, what a claimant has to prove is less favourable treatment, and further, that such treatment was on the grounds of sex. Less favourable treatment has of necessity to be with reference to a comparator. Step one is a comparative exercise and there must be a comparator for that exercise to be conducted. In this case the claimant has indeed put forward a number of comparators, both real comparators being named and identified individuals, and also the claimant has relied on hypothetical comparison and a so-called 'building blocks' comparison exercise argument.

11. Articles 3(1) (a) and 63A of the 1976 Order, taken together, require that the claimant shall, as a first stage, make out a case from which the tribunal could conclude (in the absence of an adequate explanation) that, on the grounds of her sex, the claimant was in this case treated less favourably by the respondent than the respondent treats or would treat a man. ‘Less favourably' requires a comparison. The statutory basis upon which that comparison is to be conducted is that set out in Article 7 of the 1976 Order which provision states as follows:-

“A comparison of the cases of persons of different sex … under Article 3(1) … must be such that the relevant circumstances in the one case are the same, or not materially different in the other ….”

12. The tribunal was referred by the parties to the leading judgment of the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11. Lord Nicholls in that case emphasised that the use of the words, ‘treats her less favourably', contained in Article 3(1) of the 1976 Order invites a comparison which is at the heart of the sub-paragraph. It is thus fundamental that the basis for comparison, as set out in Article 7 of the 1976 Order, must be applied. Thus the ‘relevant circumstances' mentioned in Article 7 must be carefully examined by the tribunal. It was held in Shamoon that the tribunal was entitled to examine first the ‘less favourable treatment' issue (as Lord Nicholls referred to it) before the ‘reason why' issue (that being the issue of whether any treatment was on a proscribed ground); however there might be cases where the two were so intertwined that it was permissible to deal with these issues in a different sequence.

12. The claimant's representative's submissions make clear that the claimant's case is not confined to the examination of the specific circumstances of her actual (identified) comparators. The claimant also relies on a ‘building blocks' comparison exercise. This exercise involves the invitation to the tribunal to extract material from all of the determined facts sufficient to support the application of the invited comparison to both actual and also to hypothetical comparators. For the University, there has been no real objection taken to that invitation, save that the argument has been advanced that no valid comparison may indeed be made on the facts. Thus the tribunal is asked on behalf of the claimant to conclude, firstly, that one or more of the actual stated comparators is a valid comparator for the purposes of Article 7 of the 1976 Order and, further, that sufficient factual material ought to be available for the tribunal to carry out the ‘building blocks' comparative exercise.

12. Dealing firstly with the matter of actual comparators, the tribunal is firstly asked by the claimant's representative to examine the circumstances of the successful applicant in the recruitment, Doctor Allison, with a view to reaching a determination as to whether or not Doctor Allison might be a valid comparator. The tribunal is then invited to draw the conclusion that the relevant circumstances of Doctor Allison and those of the claimant for the purposes of that comparative exercise were the same or not materially different. The University has argued that the relevant circumstances of the two are quite different and that Doctor Allison is not properly to be seen as a valid comparator for the statutory purpose.

12. In reaching a determination on that issue, the tribunal observes a number of rather significant and material distinctions between the circumstances of the claimant and of Doctor Allison. Both persons were indeed applicants in respect of the same academic post, and both were successful at the short listing stage, and both were interviewed by the interviewing panel on the same date for that post. However, the interviewing panel was entitled to have regard, as indeed it did, to a number of distinguishing features. These features included the record of achievements and the extent of the published work as set out in each candidate's application form and, furthermore, the individual performance of each candidate at interview.

12. Having examined all of the evidence, the tribunal notes that there were quite significant distinguishing factors to be taken into account. It has been argued for the claimant that the interview was nothing but a sham, that Professors Welch and Walker had conspired to set up the interview so that the claimant, a female academic, was bound to fail for the reason that these two male Professors, being in positions of power and influence, had preferred a male candidate for the post. However, the interviewing panel, by a unanimous decision, concluded that Doctor Allison had a significant and relevant record of academic publishing, that his application was deemed otherwise to meet the criteria for the post, and that his performance at interview was entirely satisfactory. The panel also unanimously concluded that Dr Allison at interview had quite effectively clarified and had resolved any initial sources of doubt harboured by some of the panel members as to whether or not he satisfactorily met the criteria and was a suitable candidate for the post. As a result, Dr Allison was deemed to be appointable to the post.

12. The claimant's publications record and her performance at interview both raised significant issues that proved to be the cause of some considerable debate by the panel after the claimant's interview had concluded. There were significant doubts harboured by the panel both in regard to the claimant's academic publishing record and also in regard to the claimant's performance at interview; there was significant discussion concerning whether or not the claimant had oversold (or indeed perhaps misrepresented) her record of academic achievement and, further, had made a mistake of a rather fundamental nature in regard to a particular technical issue.

12. The tribunal has been invited on behalf of the claimant to conclude from the evidence that the claimant was the better qualified for the post. Normally where there are two equally well qualified candidates, or indeed a perhaps better qualified candidate and that candidate is not selected (and the tribunal shall return to this whilst referring to the issue of inferences below), a tribunal can fairly easily conclude the comparative exercise in that the relevant circumstances can often be readily deemed similar for that exercise. Examining carefully all of the evidence of the University's witnesses who sat on the interviewing panel, the tribunal concludes on balance that the significant distinctions and differences in the respective records of achievement made by the panel as between the claimant and Doctor Allison, in what is quite a technical and rather complex area of academic enterprise, are sufficient to distinguish the two. The interviewing panel thus concluded that Doctor Allison was the better qualified; the panel was entitled to so conclude. Therefore the tribunal determines that the circumstances of the two candidates were different, and different to such an extent that a proper and valid comparison such as is required under Article 7 of the 1976 Order cannot be made. Doctor Allison is not a proper comparator for the statutory purpose.

12. Other comparisons were invited to be made by the tribunal in relation to the further recruitment exercise, an exercise in which the claimant did not participate. For the claimant it was argued that the successful candidate, Doctor Allen, did not fulfil the criteria which had been applicable to the earlier recruitment exercise. Whilst conceding that the criteria had been amended in respect of this further recruitment, it was submitted on behalf of the claimant that these criteria had been altered quite intentionally in order to make Doctor Allen potentially appointable. That was, it was argued, an act of discrimination and was in effect placing Doctor Allen in a more favourable position than the claimant had been placed in the first recruitment exercise.

12. Looking at that argument, and examining the opposing argument on behalf of the University, the tribunal heard the University's explanation for this which was, in broad terms, that there was an academic position which the University wished to fill; the criteria had to be adjusted in order to increase the probability of a successful appointment. The tribunal sees the sense in the suggestion that criteria might well be adjusted from one (unsuccessful) recruitment round to the next in order to increase the prospects of success of any second round as well as to cater for any amended requirements of the organisation engaged in a recruitment process that might have emerged in the interim. The University was quite entitled to amend the criteria in the way in which it did and, on the evidence, was also quite entitled to take the view that Doctor Allen's application met the short listing criteria. Thus Doctor Allen was called to interview and he was deemed successful as an outcome of that process.

12. Doctor Keanie also at the time applied for the post alongside Doctor Allen. Doctor Keanie was also deemed to have met the specified criteria. Doctor Keanie's performance at interview was deemed sufficiently satisfactory to permit him to be appointed as reserve candidate for that post. As this was a different interview process, with different criteria applicable, the cross-comparative argument which the tribunal was invited to accept on behalf of the claimant is an argument which the tribunal must determine in favour of the University. In the particular circumstances of this matter the tribunal does not accept that it is permissible to compare the first recruitment exercise with the subsequent exercise, and thus not permissible to argue that the claimant has been less favourably treated in comparison to either Doctor Allen or Doctor Keanie. These two persons were participating in a recruitment exercise which, whilst it bore some similarities as regards some of the criteria in question, was also materially distinguishable. Therefore the relevant circumstances of both Doctor Allen and Doctor Keanie in regard to that recruitment exercise are not the same and are materially different and neither of the two are permissible comparators for the purposes of Article 7 of the 1976 Order.

12. The tribunal did hear and did fully consider further submissions made on behalf of the claimant concerning other circumstances, including alleged acts of continuing discrimination, and other persons whom the claimant invited the tribunal to conclude were valid actual comparators as regards relevant circumstances and unlawful discrimination. Included amongst these was, for example, Doctor Frank Sewell. Doctor Sewell was initially appointed (jointly the tribunal understands with Doctor Blackstock) to the same research officer post that the claimant had vacated at the time she had taken up the Fellowship post in March 1997. As the tribunal further understands it, Doctor Sewell was the holder of two successive research officer post contracts prior to his being appointed to permanent lectureship post in 2001. Doctor Sewell was also a joint editor of Volume II of HIB.

23. The claimant's representative's argument was that Doctor Sewell, unlike the claimant, was firstly not asked to or expected to undertake tasks and duties additional to his own job specification, secondly, not encouraged to build up a portfolio of achievement as being necessary or advisable to secure a permanent appointment, and, thirdly, not required to submit examples of his work in connection with his editorship of Volume II to what were stated as being arbitrary and oppressive deadlines notwithstanding that that Volume was equally behind schedule. The tribunal was invited to view Professor Welch's attitude towards Doctor Sewell as paternalistic, like a father favouring his son.

24. Thus, again, the tribunal was invited to draw the conclusion that the relevant circumstances of Doctor Sewell and those of the claimant for the purposes of the required comparative exercise were the same or not materially different. The University has argued that the relevant circumstances of the two are quite different for the reason that Doctor Sewell was in a much more junior post to the claimant and held comparatively short term contracted research officer posts prior to his gaining a permanent appointment in 2001. Looking at this, the tribunal is of course, as in regard to the other invited comparisons, obliged to disregard any distinction between the two which might have been brought about by any act or acts of unlawful discrimination (see for example James v Eastleigh Borough Council [1990] IRLR 288 HL or Re Equal Opportunities Commission for Northern Ireland [1989] IRLR 64 NIHC).

25. The tribunal's response to these submissions regarding Doctor Sewell is to state, having fully considered these submissions concerning the relevant circumstances, that the tribunal was not furnished with sufficiently persuasive evidence or material to enable it to reach a determination that Doctor Sewell was indeed a proper or valid comparator. Certainly Doctor Sewell was co-editor (with Doctor Titley) of a Volume of HIB that was, like the claimant's, behind schedule, and he had taken on, jointly with Doctor Blackstock, a research officer post that the claimant had vacated. Doctor Sewell was confirmed to the tribunal on Professor Welch's evidence, which the tribunal accepted as it was uncontradicted, as having produced to an excellent standard the required published work during the tenure of his fixed term posts prior to his permanent appointment.

26. By the time the events of Mid-2003 and onwards began to unfold Doctor Sewell had for quite some time at that stage (since 2001) been holding the permanent post. The claimant's case has invited a comparison between the treatment of the claimant under her fixed term contract and that of Doctor Sewell under his fixed term contracts. In view of the respective terms of the contracts, that comparison may only be made up to 2001. However at 2001 there was no serious criticism levelled at either the Volume II editors nor at the Volume VI editor for the reason that neither Volume was at that point in breach of any OUP deadline, or any other deadline. The respective positions of the claimant, as holder of a senior Fellowship post of long term duration, and of Doctor Sewell as research officer in a relatively junior and short term post, are also distinguishable. By the time that both Volumes II and VI failed significantly to meet the deadlines, Doctor Sewell was in quite a different situation to the claimant contractually. Doctor Sewell's relevant circumstances are not the same and are materially different and thus he is not a valid comparator in the light of the facts.

27. Taking all of this into account, and fully considering the respective submissions and the evidence and concluded facts, the tribunal concludes that none of the individuals identified in the course of the claimant's case as actual comparators for the purposes of Article 7 of the 1976 Order were in such relevant circumstances that any such might be deemed properly to be in the same or not materially different circumstances to the claimant for the purposes of any of the claims of direct sex discrimination.

28. The tribunal then turns to the claimant's contentions in respect of hypothetical comparators. There was no issue in the case of the entitlement of the claimant to rely on a hypothetical comparison (see Balamoody v UK Central Council for Nursing Midwifery & Health Visiting [2002] IRLR 288). The tribunal has been invited to conduct that comparison on the basis of what has been referred to as a ‘building blocks' exercise. As the tribunal understands that invitation, the tribunal is invited to consider how the respondent would have treated that hypothetical comparator, being a person whose relevant circumstances were the same or not materially different to the claimant's relevant circumstances, but who of course was a man. The claimant's representative's argument here is that the sum total of all of the evidence, and of all of the conclusions of fact to be drawn from the evidence, should be sufficient to allow the tribunal to see the construction of the hypothetical comparison from these various ‘building blocks'. In the course of some rather extensive submissions, the claimant's representative has in a detailed fashion referred the tribunal to instances of what it is claimed should constitute pointers or pieces of evidential material demonstrating how the University and the personalities who were engaged in the various dealings with the claimant behaved towards the claimant and towards other persons, and how the University would have dealt with that hypothetical comparator, a hypothetical male in the same or not materially different relevant circumstances to the claimant.

29. To give but one illustration of what was put forward on foot of that submission, the tribunal was invited to look at Professor Welch. Professor Welch has been portrayed, in the essence of the claimant's case, as being a person who was inherently of the view that female academics ought to be subjected to somewhat distinctive treatment to that accorded to male academics. The proposition is that this view was underlying many of the dealings between Professor Welch and the claimant throughout the course of her academic career, first of all in the CILB under the Professor's directorship, and latterly when Professor Welch was appointed Dean from 2000 onwards. It was contended that there was strong evidence that the Professor was quite willing to use and indeed to exploit the claimant throughout the term of her contract by relying upon the claimant's insecurity under the terms of that contract, and then, as it were, to cast the claimant aside when the opportunity presented itself at the end of the fixed-term contract.

30. The tribunal has considerable difficulty in accepting the foregoing proposition. That is for the reason that, very clearly, Professor Welch was enthusiastic about the claimant being appointed to a permanent post. The evidence of this is that the Professor wrote to the Vice-Chancellor on 3 September 2003 regarding the issue. In doing so the Professor was clearly inviting the University to look at the possibility of appointing the claimant to a permanent post. However, Professor Welch also recognised that there were certain formalities that had to be adhered to. He referred to that for example in the 2003 report to AHRB. If the claimant's proposition were to be correct, the tribunal feels that the Professor would have expressed himself to the Vice-Chancellor in very much more guarded terms, or would have indeed omitted any mention of the matter. It would be pushing credibility to the limit to suggest that the Professor would have expressed himself as he did if, having exploited the claimant as he was claimed to have done, he then wished to dispense with the claimant when the opportunity presented itself at the end of the fixed-term contract. Clearly and entirely evidently, the Professor wished the claimant to be appointed. The only proper conclusion that the tribunal can draw from this is that the claimant indeed had a very enthusiastic supporter and an ally in Professor Welch, at least at the stage when the Professor wrote to the Vice-Chancellor, on 3 September 2003, requesting, with a considerable measure of apparent enthusiasm, that the claimant might be confirmed in a permanent position.

30. Another proposition put forward by the claimant was that when Professor Welch understood that a male academic, Doctor Allison, was competing for the post together with the claimant, the Professor determined that that male academic was to be afforded preference to a female academic, the claimant, on grounds of gender. Thus Professor Welch conspired with Professor Walker to ‘scupper' (as it was put) the claimant's chances of being successful at interview for the reason that Professor Welch had an inherently misogynistic view of things.

30. To look at that proposition further, if there had existed such a conspiracy between Professors Welch and Walker, examining how that might have arisen in the context of the other circumstances, that conspiracy between the two could only have emerged around the time that Professor Welch first became aware of Doctor Allison's being short listed for the post. The tribunal has determined that Professor Welch was not involved in the short listing process. Accordingly, Professor Welch would only have become first aware of Doctor Allison's short listing a rather short time before the interview date. The postulated conspiracy could have been only very short-lived indeed. From the evidence, the tribunal is reasonably certain that Professor Welch had never before met or spoken with Doctor Allison at that point and had probably no prior information; he was entirely an ‘unknown quantity' to the Professor. The tribunal sees therefore no positive motivation available to Professor Welch at all to favour Doctor Allison save for the postulated misogynistic approach that the tribunal is invited on behalf of the claimant to accept was applied to the exercise by the Professor, in alleged conspiracy with Professor Walker.

30. The tribunal observes that, on the one hand, it is submitted that there existed a long-standing discriminatory approach taken by Professor Welch to this female academic, the claimant. The tribunal is thus invited to conclude that the claimant was subjected to long-term individual and to continuing acts of discrimination over a lengthy period of time in comparison to the treatment accorded to various male academics. Further the tribunal is also faced with an argument that there was a specific and a rather short-lived conspiracy to disadvantage the claimant in the selection process as Doctor Allison was to be afforded preferential treatment and the claimant's chances of success were to be 'scuppered'.

30. Where then is the evidence that Professor Welch, in conjunction with Professor Walker, conspired to influence the other panel members so as to ‘scupper' the claimant's chances of success? It is contended by the claimant's representative that the claimant better met the criteria for the post than did Doctor Allison. Here the tribunal is faced with some rather detailed and technical argument on the issue of whether or not particular academic criteria do or do not apply to the achievements of two candidates in the running for an academic post.

30. Not being possessed of appropriate academic expertise, the tribunal can do nothing other than to bring to bear a basic common sense approach to the matter. Analysing the facts and the respective submissions, the tribunal views the particular achievements of the two candidates as being rather different. Doctor Allison in his written application for the post has recorded an extensive body of work and publications within his chosen range of academic expertise. That was clearly the view taken by the interviewing panel. The tribunal concludes that the panel was entitled to take the view that Doctor Allison's relevant publications and experience both in nature and extent, when taken together with performance at interview, met the criteria more effectively than did those of the claimant. Having on those grounds assessed Doctor Allison as the better candidate, there is nothing suggesting that the decision to appoint Doctor Allison and not to appoint the claimant was taken in any way or to any degree on grounds of gender. The decision was one taken by the panel, after much discussion, on a collective basis and on the basis of unanimity, on grounds of assessed academic achievement and on assessed interview performance. Quite simply, the University selected what it saw as being the best candidate for the post without discrimination on the grounds of gender.

30. The decision to have the claimant deemed unappointable to an extent arose from the use of prior knowledge of the claimant on the part of Professors Welch and Walker. Use of prior knowledge was not made the subject of any direction on the part of the Chairman of the interview panel, Doctor Wilson. The tribunal has heard the explanation provided by Professors Welch and Walker concerning the use of the prior knowledge. The view was taken by the Professors that the need to disclose to the panel members, who would otherwise have been unaware of the facts, what was regarded as being a significant difficulty, outweighed the detriment to the process that might have resulted in some of the panel members proceeding on foot of a mistaken impression as to the claimant's academic achievements and competences.

30. The tribunal has no doubt that Professor Welch at that point was quite genuinely concerned as to what he saw as a lack of progress with Volume IV of the HIB project and a lack of academic production and output on the claimant's part. The topics of discussion included the information that the claimant had not produced, for example, the Land War chapter. That had been described as 'complete' in the claimant's application for the post. Also, the incomplete 'distribution' chapter received by Professor Welch a short time before had been described as 'complete' in the claimant's application.

38. A typewritten draft of the Land War chapter was indeed made available to the tribunal at hearing. The argument has been made on behalf of the claimant that, whilst the claimant's manuscripts had indeed not been published by the year 2006, the tribunal should not draw any adverse conclusion from that in view of the claimant's post-termination status and the consequent financial and other difficulties attendant upon publication in these circumstances. However, the only factual conclusion that the tribunal can draw from this is that there currently exists at the hearing date a manuscript. However there was no evidence presented to either Professor Welch or Professor Walker by the interview date as to the existence of such a draft work. In view of the fact that this had been called for but not produced, both were gravely concerned by the time of the interview that the draft work did not exist in a near complete or fully completed form or indeed that there was some other fundamental difficulty in regard to the claimant's capacity to produce what was required of her in a timely and a proper fashion.

39. The Professors were mindful, particularly, of the list of publications identified as ‘present publications', these being one book and five identified articles in the claimant's application for the post, together with two being described as ‘forthcoming publications'. In respect of the listed ‘present publications', Professors Welch and Walker harboured concerns at the status and the extent of what was so described, hence the ‘overselling' discussion that took place after the interview of the claimant had been completed. In such discussions the panel drew a significant distinction between the claimant's situation and the situation the panel was faced with when considering what was viewed as an impressive publication output on the part of Doctor Allison.

40. The claimant's representative made submissions, at some length, regarding the issue of inferences of discrimination that it was submitted might properly be drawn by the tribunal. These submissions included references to a stated delay on the part of the University in serving a response to the claimant's statutory questionnaire (the questionnaire being served on 17 June 2004 and the response being forthcoming on 28 October 2004 – with the University responding that the delay was entirely reasonable and was occasioned by the academic summer vacation); and what were claimed to be evasive and misleading answers contained in that questionnaire; and the stated failure on the part of the University to disclose a range of documents which might have confirmed or cast doubt on its explanation for the difference in treatment of the claimant in regard to the comparators and the disclosure of other relevant documents, and for example the failure to call a relevant witness ( Professor Crotty).

41. To further advance that inferences argument, it was submitted that Professor Welch had in a number of ways accorded more favourable treatment that that accorded to the claimant to such men as Doctors Keanie and Sewell and, further, that Professor Welch had shown throughout the hearing an unexplained hostility towards the claimant; from all of these, inferences of discrimination ought properly to be drawn by the tribunal.

42. The tribunal has determined that there is no valid actual comparator made out on the claimant's case. Is there a valid hypothetical comparison to be made, whether based on inferences to be drawn or otherwise? The tribunal notes the recently-reported case of Network Rail Infrastructure Ltd v Griffiths-McHenry [2006] IRLR 865 EAT where the Employment Appeal Tribunal in England under the President, Mr Justice Elias, examined a tribunal's decision, in a race discrimination matter. The EAT in that case determined that there does not have to be positive evidence that the difference in treatment is race or sex in order to establish a prima facie case. However, the mere fact that a claimant is black (or in a sex discrimination case of one gender) and is not appointed to a post and the other who is appointed is white (or of the opposite gender), does not constitute sufficient primary facts to justify an inference of discrimination. Thus in a case where a tribunal found that an equally well qualified candidate was not selected, the tribunal would be entitled to find that there was a prima facie case. Accordingly, it would fall to the employer to explain why (as on the facts of the Network Rail case) five white men were selected and why the black claimant was not selected. Further, if a better qualified candidate were not to be selected, there would be an even greater burden on the employer than if the unsuccessful candidate was equally well qualified to the successful one. (Finally that case contains the useful reminder that a tribunal must distinguish between unreasonable conduct (perhaps by selection criteria not being objectively applied and being inconsistent) and discriminatory treatment [see Bahl v The Law Society and Glasgow City Council v Zafar [1998] IRLR 360 ]).

43. In this matter the tribunal notes the arguments in respect of whether the claimant was better qualified or less well qualified than Doctor Allison. The tribunal has already examined the evidence of the members of the interviewing panel and has concluded on balance that the interviewing panel members were entitled to arrive at the conclusion that Doctor Allison was the better qualified of the two. Therefore the situation is not as in the Network Rail Infrastructure Ltd v Griffiths-McHenry case; no prima facie case is made out nor may any inference of discrimination be drawn from the selection of the (deemed better qualified) male candidate.

44. The tribunal has been invited to draw inferences of discrimination from a number of different sources in order to determine how the University would treat the hypothetical comparator that the tribunal has been requested to examine (that hypothetical comparator being in the same or not materially different circumstances to the claimant, but male). The tribunal has considerable difficulty in seeing sufficient material upon which to come to the conclusion that the ‘building blocks', as it has been put, are sound enough or are of sufficient number properly to construct what the claimant seeks in this case. What the tribunal is faced with here is a substantial array of facts and matters alleged to be fact on behalf of the claimant, which, taken together with an intricately constructed submission ought, so it is suggested, properly to permit the tribunal to accept the contention that a hypothetical comparator can properly be constructed and, once constructed, the tribunal ought to be in a position readily to conclude that the claimant would have been less favourably treated by the University than that hypothetical comparator. The tribunal has taken account of the submissions on behalf of the respondent to counter these arguments.

45. Notwithstanding what has indeed been a rather robust endeavour on the part of the claimant's representative to persuade the tribunal to do so, the tribunal remains unpersuaded that there is sufficient material, on balance, properly to construct such a hypothetical comparator as would permit the claimant to succeed in this case of alleged unlawful discrimination on the basis of a hypothetical comparison. The tribunal concludes that a hypothetical male in the same or not materially different relevant circumstances to the claimant would have been treated the same as was the claimant. Therefore the hypothetical comparison case is not made out and fails.

46. The initial test to be met by the claimant in this case of sex discrimination is to establish, in accordance with what has been referred to as ‘the Barton guidance' (as amended in the case of Igen Limited (formerly Leeds Careers Guidance) & Others v Wong) the first step posed under the revised Barton guidance. That guidance provides, in this case, that it is for the claimant to prove as a first step, on the balance of probabilities, facts from which the tribunal could conclude, in the absence of an adequate explanation, that the University had committed an act or acts of unlawful sex discrimination. If the claimant does not prove such facts she will fail. Having fully considered the evidence and the submissions, the tribunal cannot draw any conclusions of fact, whether based on factual comparison of the relevant circumstances of actual identified comparators or based on inferences of discrimination and the construction of a hypothetical comparator, sufficient to move the matter beyond the first stage and thus permit the shifting of the burden of proof to the University. Accordingly, the tribunal determines that the claimant has failed to discharge the initial test that is set before her. Thus the tribunal need not take the matter of the claimant's complaint of unlawful sex discrimination any further save to state that the claimant has, on balance, failed to satisfy the tribunal by proving such facts on the balance of probabilities. Therefore she cannot succeed in this complaint of unlawful sex discrimination.

47. The tribunal now directs its attention to the claimant's other complaints. In its setting out of the facts, the tribunal has made some reference to the status of the claimant's contract and has mentioned some of the contentions on the part of the claimant and the University in regard to that. As is set out in the submissions, the claimant's case is that, by 2004, she was no longer working to the original terms of her fixed-term contract. It is argued, in the alternative, firstly that the claimant having requested reasons for her less favourable treatment as a result of her being deemed to be subject to a fixed-term contract, the University has not provided adequate grounds for her treatment. Furthermore, it is argued that the claimant's treatment has been less favourable than the treatment of her colleagues whose written contracts are expressed as being permanent. It is claimed that no objective justification has been provided on the University's part. It has been further claimed that the additional duties that were afforded to the claimant were afforded on the basis that the claimant was working to a fixed-term contract. It is contended that, whilst it might be argued by the University that these additional duties were in order to assist in the securing of a permanent appointment, the treatment of others (specifically Doctors Sewell and Keanie) by the University shows that that was not necessary to secure a permanent appointment. The obligation to sustain the legacy of the Fellowship by maintaining a post after the expiry of the fixed-term contract makes that position even stronger, so it is argued on behalf of the claimant.

48. The University's argument, in contrast to the foregoing, is that the appointment to the fixed-term contract is entirely connected to the issue of funding in that, from the outset, the Fellowship was, and was always intended to be, the subject of an initial period of funding for four years by AHRB to be followed thereafter by the funding to be taken up jointly by the University and by QUB for a further period of three years. There was therefore a necessity at the time of creation of the post that the duration of the post be directly connected with the funding and with the original projection for the duration of work of the Fellow in post.

49. Having taken account of the facts and of the submissions on the part of both the claimant and the University, the tribunal looks at Regulation 3 of the 2002 Regulations in respect of the issue of whether or not the claimant, as a fixed-term employee, was treated by the University less favourably than the employer treated any comparable permanent employee either:- (a) as regards the terms of her contract; or (b) by being subjected to any other detriment by any act; or deliberate failure to act of her employer, the University.

50. The claimant's representative had made reference, as comparators, to certain other of the University's employees who were not on fixed-term contracts. The tribunal has been referred to the case of Terry v East Sussex County Council. That was a case where the appellant was employed by a local authority on a fixed-term contract for a period of 12 months as a Lecturer at a college managed by the respondent authority. The contract term expired and the contract was not renewed. The tribunal hearing the initial case dismissed the application on the ground that the local authority had shown some other substantial reason of a kind to justify the appellant's dismissal within the provisions of the then applicable legislation. The tribunal gave no reasons for its decision other than to state that the termination of the appellant's employment was by the expiry of an agreed period, and to the extent to which such expiry constituted a dismissal (under the applicable statutory provisions) it was for a good and substantial reason. The Employment Appeal Tribunal in that matter determined that the tribunal hearing such a matter had to consider whether there was a genuine reason for the contract being for a fixed term or whether it was merely a device for avoiding an employee's right not to be unfairly dismissed. As the tribunal had given no reasons for their finding that the dismissal was not unfair, the appeal was allowed and the case has remitted to a differently constituted tribunal for a hearing.

51. Bearing in mind the statutory provisions and the authorities cited on behalf of the claimant, this is a clearly a case where the construction of the claimant's contract and the fixed term provided thereby was not done on a whim or in a way that stands out clearly as a device intended for avoiding an employee's right not to be unfairly dismissed. The fixed-term nature of the contract was intrinsically and directly linked to the funding and to the projected course of the Fellowship in the context of a two-tranche funding arrangement, firstly by AHRB and latterly by the University and QUB. Looking at all of the evidence and the determined facts before it, the tribunal sees the reasoning at the time behind the construction of the contract as a fixed-term contract and the reluctance on the part of the University to commit itself to a contract where the issue of funding might become problematical as matters proceeded. In the latter stages, whilst it is certainly the case that additional functions were added by agreement to the claimant's duties, it was always hoped that the fixed-term contract would be replaced by a further integration of the claimant into the Faculty on a permanent basis once the necessary funding was made available for a permanent post. That fact and aspiration is borne out in a number of the documents before the tribunal, not least of which was the memorandum from Professor Welch to the Vice-Chancellor inviting that proposal. It was objectively justified, as far as this tribunal is concerned, to continue with the fixed-term contract in the hope, expressed by Professor Welch and others, that the integration would take place with the success of the claimant in her competing for a permanent post once funding arrangements made that possible. The facts suggest that the funding issue for the permanent post was not clear at all until a relatively late stage in matters (the tribunal for example accepted the evidence from Professor Welch about his having considerable difficulty in establishing funding and having to 'mortgage' a retirement, as he put it, to secure funding).

52. The tribunal has been referred by the respondent's representative to the case of Department of Work and Pensions v Webley. In that case the Court of Appeal in England (examining the English equivalent of the 2002 Regulations), looked at the issue of whether, of itself, the termination or non-renewal of a fixed term contract was capable of constituting less favourable treatment under Regulation 3(1)(b) of the Regulations. The Court of Appeal held that since fixed-term contracts were not only lawful but recognised in certain circumstances as responding to the needs of both employers and employees, the termination of such a contract by the effluxion of time could not of itself constitute less favourable treatment by comparison with a permanent employee. Accordingly, the expiry of a fixed-term contract resulting in the dismissal of the fixed-term employee could not fall within regulation 3(1) of the 2002 Regulations and such a dismissal could not be a detriment for the purposes of regulation 3(1)(b). The Court determined that it could not be the case that there was an obligation to convert a fixed term contract into a permanent contract; fixed term contracts were not just lawful, as was recognised in the 2002 Regulations, but it is of the essence of a fixed term contract that it does come to an end and the parties will be aware of that fact.

53. In this case the tribunal determines that, on the facts, insofar as the termination of the claimant's contract was concerned, that did not constitute less favourable treatment of the claimant in comparison to permanent staff of the University and, insofar as there might in any other respect be deemed to be any other less favourable treatment of the claimant in comparison to permanent staff of the University, the tribunal determines that the University has satisfied the provisions of the justification test contained in the 2002 Regulations. The claimant's complaint on these grounds cannot thus be sustained.

53. That then brings the tribunal to a complaint which is, to an extent, connected with the foregoing. The claimant has contended that the University has failed to provide a statement of written reasons for the claimant's dismissal and that the expiry of a fixed-term contract is not, on its own, a reason for dismissal. The University has provided, in response to correspondence on the part of the claimant, an explanation of the reason for her dismissal that is connected with the expiry of the fixed-term contract. Given that the University's conduct in and connected with the expiry of that contract has not infringed the statutory provisions referred to above, that explanation is an adequate explanation and therefore accords with the statutory provision. Therefore no statutory right has been infringed by the explanation provided to the claimant by the University and the claimant's contention in that regard fails.

53. That then leaves outstanding the issue of the claimant's complaint of unfair dismissal. Dealing firstly as to how that right might impinge on the 2002 Regulations, Regulation 6 provides that an employee who is dismissed shall be regarded as unfairly dismissed for the purpose Part XI of the 1996 Order if the reason (or, if more than one, the principal reason) for the dismissal is a reason specified in Paragraph (3) the Regulation. The reasons or grounds are that the employee has:-

4. brought proceedings against the employer under the 2002 Regulations;

5. requested from his employer a written statement under Regulation 5 or Regulation 9;

6. given evidence or information in connection with such proceedings brought by any employee.

53. On the facts, the dismissal of the claimant upon the expiry of her fixed-term contract with effect from 9 March 2004 is not connected with the foregoing statutory provisions in the sense that the termination of the contract upon the expiry date of the fixed term has not been shown to be connected with the reasons set forth in Regulation 6 of the 2002 Regulations. The claimant did write a letter sent by e-mail and post on 1 March 2004 to Denise Greatorex, Human Resources Consultant, of the University. In that letter the claimant requested a written statement of reasons for what she contended to be less favourable treatment and referred to Section 3 of the 2002 Regulations. She requested that this be provided within the following 21 days. She also requested written reasons for her dismissal as she was anticipating that her contract, due to terminate on 9 March 2004, was not to be renewed, such reasons to be provided pursuant to Article 124 of the 1996 Order. There has been no evidence brought before the tribunal to show a connection between that request, and indeed a follow-up letter from the claimant of 4 March 2004 to Denise Greatorex, (to which there was a holding response, regrettably undated as far as the document before the tribunal goes but certainly in advance of 9 March 2004) and the cause of the dismissal. That course of correspondence did not cause the dismissal to occur. It was the expiry of the fixed-term contract that was responsible for and directly connected with the cause of the dismissal. Therefore Regulation 6 of the 2002 Regulations is not engaged.

53. In terms of the general, and indeed the well-settled, law concerning unfair dismissal and examining the test of fairness as set out in Article 130 of the 1996 Order, on foot of Article 130(1) the University, as employer, is required to show the reason (or if more than one the principal reason) for the dismissal and whether or not it is one of the listed potentially fair reasons such as are set forth in Article 130(2) or some other substantial reason such as to justify the dismissal of an employee holding the position which, in this case, the claimant held. As none of the listed reasons in Article 130(2) appear to be applicable, on the case made out by the University, the University's case appears to rest upon the argument that the claimant was dismissed for some other substantial reason as mentioned in Article 130(1)(b), that is to say the expiry of the fixed term contract.

53. Applying then the statutory considerations in Article 130(4), the tribunal has to determine the question of whether the dismissal was fair or unfair (taking account of the University's reason) by examining the circumstances and determining whether the University acted reasonably or unreasonably in treating the reason (the expiry of the fixed term contract) as sufficient reason for the dismissal of the claimant. The tribunal's task is to determine the matter in accordance with equity and the substantial merits of the case. The matter of reasonableness is decided by determining whether or not the claimant's dismissal by the University in the light of all relevant considerations fell within the band of reasonable responses of a reasonable employer.

53. In the application of this statutory guidance the tribunal is mindful of the considerable body of case law and in particular the guidance stemming from the case of Iceland Frozen Foods Limited v Jones [1982] IRLR 439 which includes (inter alia) the following: -

1. A tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the tribunal) consider the dismissal fair.

2. In many (though not all) cases there is a band of reasonable responses within which one employer might reasonably take one view, another quite reasonably take another.

3. The function of the tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.

The Court of Appeal in England in the cases of Post Office v Foley/HSBC Bank v Madden [2000] IRLR 827 has clearly restated and reaffirmed the principles deriving from Iceland.

53. In looking at all of this, the tribunal notes that the claimant's representative has called into question in submissions the reason for the post having to be advertised at all as a permanent appointment. It is argued that the claimant had fulfilled, in practice, all the functions of the forthcoming permanent appointment. The need to advertise at all the ‘new' post and to undertake the recruitment process (stated by the University to be required under equality legislation), has been challenged on behalf of the claimant. It has been commented in the submissions on behalf of the claimant, quite correctly, that it is rather unusual for an appointment decision to be scrutinised in an unfair dismissal case, in contrast to a case of unlawful discrimination. It has been argued that the non-appointment of the claimant was unfair in that it was in reality grounded on a belief in the claimant's misconduct or incapability in respect of the production of work and research and in regard to the knowledge of her chosen field of academic expertise. It is argued that it was unfair to dismiss the claimant for these causes (which in any event are submitted as holding no basis in fact) without informing the claimant of the case against her and without giving her a chance to respond. It is further argued that the reliance on prior knowledge of the part of some panel members was not fairly employed; the claimant was unfairly treated in respect of the use of specialist knowledge and unfairly treated in being set a test that was not applied to the other candidate. That test was the requirement to produce work to a deadline before the interview. It is also argued that Professor Welch was unduly hostile to the claimant both before and also in the course of the interview.

53. The University's representative, to counter these arguments, has contended that the procedure employed was fair and proper and that the conclusion arrived at by the panel was not a conclusion based on the unfair compromising of the panel by the use of specialist knowledge, or by the employment of prior knowledge, that was in any sense used unfairly against the claimant.

53. Having taken account of these arguments, and having considered the facts, the tribunal would observe that the process of interviewing a candidate for a post who is a person perhaps long associated with the interviewing authority (an ‘in house' candidate), is inevitably going to be a rather problematic matter for any ‘in-house' interviewing panel when such a panel is also interviewing an 'external' candidate who does not occupy that position of relative familiarity. How does the panel fairly deal with the issue of prior knowledge of the ‘in house' candidate? The panel in many, perhaps most, instances shall possess particular information regarding the candidate's capabilities and capacities in addition to that set out by the candidate in the application form, and that displayed in the course of the personal interview. That prior knowledge shall normally not apply to the ‘external' candidate. In the latter case, the panel will be reliant in all probability entirely upon the documentation which is before the panel and upon the interview performance. The task of any panel in ensuring fairness and equity of approach might well be a rather difficult one. It is not perhaps so much the fact of the use of prior knowledge which might cause a difficulty, per se; it is rather the question of whether or not any prior knowledge is used fairly or unfairly.

53. In this case, it is argued for the claimant that Professors Welch and Walker conspired to ‘scupper' the claimant's chances of success at interview for discriminatory reasons and on the basis that there was a male candidate to be preferred. The tribunal has however dealt with the issue of sex and fixed term contract discrimination and has not found that part of the claim determined in the claimant's favour. The claimant has argued that there was a conspiracy; that conspiracy depended on the improper use of prior knowledge, such prior knowledge being employed to the unfair disadvantage of the claimant.

53. The tribunal feels that the common sense of the matter is that it must take the view that the use of prior knowledge is not of itself automatically unfair. If that view were not to be correct this would potentially disbar from an interviewing panel any interviewer who had any degree whatsoever of prior knowledge of any candidate. That would present an almost impossible obstacle in administrative terms to very many organisations. If the existence of prior knowledge is thus not an absolute bar to an interviewer sitting on a panel, the common sense of it is that the scrutiny must be directed to the issue of whether or not the prior knowledge is used fairly or unfairly.

53. Looking at the facts, the tribunal is certain that both Professor Welch and Professor Walker did harbour entirely genuine and real concerns regarding the claimant's production of high quality research and publication during the latter part of the tenure of her Fellowship post. Further, Professor Welch held the quite genuine opinion that the claimant had made a serious technical error in her answer to a specific question. Leaving aside the debate on the topic of whether Professor Welch was technically right or wrong from an academic perspective (as the tribunal is unable to assess that), the tribunal does not view this as being merely a fabrication or some type of device on Professor Welch's part, constructed with a view to providing to the Professor a platform from which he might bring to bear his specialist knowledge in order to persuade the other panel members as to the claimant's unsuitability for appointment. Rather, this was a quite genuinely held belief which Professor Welch felt compelled to draw to the attention of the rather more inexpert members of the panel.

53. In regard to this alleged ‘mistake', in any interview situation there is inevitably going to be a measure of discretion afforded to the interviewing panel perhaps to allow any candidate to commit himself or herself to an erroneous answer. It shall always be a matter of discretion whether or not the interviewing panel might wish to prompt the candidate to correct any perceived error in an answer or, in the alternative, to leave the matter at that. The tribunal concludes that Professor Welch was entitled to ask the question of this candidate which he asked, and he was also entitled to rely on the claimant's answer, for good or for ill, as far as the interview went. The tribunal further concludes that it was permissible on Professor Welch's part to draw what he perceived to be a rather significant error to the attention of those members of the panel who might not have understood that a technical error had been made. As the tribunal understands it, no such difficulty was experienced with Doctor Allison's answers.

53. In regard to the perceived lack of production of published work, as Professor Walker saw it, he was entitled to ask an appropriate question of the claimant. In asking the question, the Professor was affording to the claimant the opportunity to respond to the suggestion that her production had not been what was expected and to provide an explanation. The claimant was entirely free to have provided the explanation, if she had chosen to do so, that she was perhaps attending to other demanding work and was experiencing some difficulty in getting on with her academic research and her publication projects, or that her research focus had changed for whatever reason and that she had undertaken different projects with a view to publication. Rather than providing any such explanation, the claimant seems not to have accepted the opportunity afforded to her by Professor Walker to provide the very reason or reasons which the claimant indeed now seeks to put forward before this tribunal; rather the claimant provided some manner of explanation which related to the topic of grant funding. The claimant it must be said was afforded a free choice in the provision of her answer.

53. Having been afforded the opportunity by Professor Walker, the tribunal does not believe that either Professor Walker, or indeed Professor Welch, were under any further obligation to invite amplification of the initial response, nor indeed any other response, from the claimant. The interviewing panel members were quite properly entitled to accept the claimant's explanation and entitled to proceed to discuss that response after the interview had concluded. There was nothing unfair or unreasonable in the foregoing and the tribunal does not accept the submissions to the contrary made on behalf of the claimant. Further, the tribunal does not accept as a matter of concluded fact from the evidence, that there was hostility displayed towards the claimant by Professor Welch during the course of the interview, or indeed by any other panel member.

53. The tribunal does not accept that there was unfairness in connection with the requirement of the claimant being asked to produce her work coincidental with the timing of the interview. Professor Welch was genuinely concerned regarding the situation, his concern having it seems first emerged around the time of the AHRB ‘damning report'. That concern was further amplified by the events surrounding the October symposium and by the claimant's failure to produce work, a concern for example noted in the memo of 31 October 2003 sent by Professor Welch to the claimant (‘He also points out, however, that you didn't present in relation to your own topics, an unfortunate oversight. I've talked this over with Brian and we agree that it would be a good thing for us to see your pieces as well as an early draft of your introduction at the same time as your contributors will be delivering'), and particularly by the claimant's failure to produce work to the 19 January 2004 deadline for the General Editors to be in receipt of the Chapter, 'Industrialisation, Distribution and the Book Trade'. Professor Welch was at all times and very understandably mindful of the revised deadline set by OUP. He was also mindful of the fact that the term fixed for the claimant's contract was drawing to a close and, whilst it was certainly hoped that the claimant would be installed in a permanent post, there was no guarantee that that would be the case.

53. Looking at all of this, the tribunal cannot conclude that the decision to dismiss the claimant upon the expiry of her fixed-term contract constituted an unfair dismissal in that the reason for the dismissal was a potentially fair reason (the 1996 Order, Article 130(1)(b) '... some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held...') and the decision to terminate the contract and to dismiss the claimant, upon these particular facts and in these particular circumstances, fell within the band of reasonable responses of a reasonable employer. Accordingly, the claimant was not unfairly dismissed.

53. This therefore disposes of all of the claimant's complaints and, that being the case, all of these complaints are dismissed by the tribunal, without further Order.

Chairman:

Date and place of hearing: 20, 21, 22, 23, 24, February

3,4,5,6,7,10, and 11 April;

30 and 31 May and

1, 2 and 22 June 2006, Belfast

Date decision recorded in register and issued to parties: