Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF: 385/06

CLAIMANT: Nasir Ali Akhonzada

RESPONDENTS: 1. Jamal Iweida

2. Dr Ahmed Bouridane

3. The Trustees for the time being of the Belfast Islamic Centre

DECISION

The unanimous decision of the tribunal is that the third named respondents victimised the claimant contrary to the provisions of the Sex Discrimination (Northern Ireland) Order 1976 as amended and the Race Relations (Northern Ireland) Order 1997 as amended and awards him the sum of £13,155.00 by way of compensation.

The first and second named respondents are dismissed as parties from the proceedings. The correct name of the third named respondent is the Trustees for the time being of the Belfast Islamic Centre and the title of these proceedings is amended accordingly.

Constitution of Tribunal:

Chairman: Ms J Knight

Panel Members: Mr B Heaney

Mr J Kinnear

Appearances:

The claimant was represented by Mr Mark McEvoy Barrister-at-Law instructed by the Equality Commission for Northern Ireland.

The respondents were represented by Mr Pat Moore of Peninsula Business Services Limited

ISSUES

(1) The issues to be considered by the Tribunal were:

(a) Whether the respondent victimised the claimant contrary to the provisions of Article 6 of the Sex Discrimination (Northern Ireland) Order 1976 and Article 4 of the Race Relations (Northern Ireland) Order 1997, in the arrangements made for the appointment of and in the failure to appoint him to the position of director with the third named respondent.

(b) During the course of the hearing, an issue arose as to whether the claimant's complaint of victimisation contrary to the provisions of the Sex Discrimination (Northern Ireland) Order 1976 was properly before the tribunal. The tribunal was satisfied, having heard the submissions of the representatives of the parties, that this was an instance which required a simple re-labelling of the claim rather than a substantive amendment of the claim that this part of the claim was properly before the tribunal.

EVIDENCE

(2) The Tribunal heard the oral evidence of the claimant Mr Akhonzada, Mr Kenneth Fraser, Mr Douglas Topping and Mr Frank Fleming who gave evidence on behalf of the claimant. The Tribunal heard the evidence of the witnesses for the respondent Mr Jamal Iweida, Dr Ahmed Bouridane, Mr Zaehid Ghulzar, Dr Sharhidd Booley and Mr Mohammed Akram. The Tribunal considered an agreed bundle of documentation together with various other documents which were produced during the course of the hearing.

FINDINGS OF FACT

(3) The Tribunal found the following facts to be proved on a balance of probabilities:

(3.1) The claimant Nasir Ali Akhonzada is a Pakistani-born agronomist who has lived in Northern Ireland for the past six years. He and his wife are Sunni Muslims and members of the Muslim community in Northern Ireland. They attend Friday worship at the mosque and would have availed of services provided by the Centre but neither the claimant nor his wife were members of the Belfast Islamic Centre, in that neither had completed application for membership forms.

(3.2) The Belfast Islamic Centre is the hub of the social and spiritual life of the Muslim community in Northern Ireland. Members of the Muslim community in Northern Ireland are eligible to apply for membership of the Belfast Islamic Centre which is governed by an executive committee elected by members of the Belfast Islamic Centre at the annual general meeting. The Executive Committee consists of President, Vice President, Secretary, Treasurer and three committee members. At the relevant time the elected president was Mr Jamal Iweida, the first named respondent. The property of the Belfast Islamic Centre is vested in elected trustees. The Executive Committee has the power to appoint replacement trustees should a vacancy occur between annual general meetings. The Belfast Islamic Centre (the Centre) draws heavily on the voluntary commitment of the members of the Executive Committee. In practice it was the President who carried out the day to day running of the Centre on behalf of the Executive Committee. The Centre receives limited funding from statutory and other agencies. The Belfast Islamic Centre applied for an obtained funding from the Office of the First Minister and Deputy First Minister (OFMDFM) for the positions of Director and Secretary in the Centre. The main contact person with the OFMDFM and other bodies was Mr Iweida.

(3.3) It became apparent during the hearing that Mr Iweida had at some point drafted an equal opportunities policy which was attached to an application for funding from OFMDFM. The Tribunal concluded that this was a device to secure funding as a condition of funding from the Racial Equality Unit was that a body seeking funds must have in place an equal opportunities policy. It appears that this was not formally adopted by the Executive Committee and Mr Iweida himself only recalled the draft policy when this was produced at the hearing by witnesses from OFMDFM. Furthermore the respondent stated in its reply to the claimant's request for particulars that it did not have a written recruitment and selection policy "due to the fact that all the posts within the Belfast Islamic Centre are funded by the Office of the First Minister and Deputy First Minister who provide them with all of the guidance and direction with regard to recruitment and selection. The Belfast Islamic Centre has also obtained advice from the Equality Commission with regard to recruitment and selection prior to making appointments." These assertions were denied by the witnesses from the Racial Equality Unit of the OFMDFM and the Equality Commission for Northern Ireland, whose evidence the tribunal found to be more reliable. The tribunal was satisfied that no such guidance, direction or advice was either sought by or given to the respondent by either of these bodies. The Tribunal therefore considered that the respondent's replies were evasive and inaccurate.

(3.4) The claimant's wife had lodged complaints of race and sex discrimination against the respondent in October 2004 following her non appointment to the position of secretary in the Belfast Islamic Centre. The claimant told the tribunal that apart from providing his wife with moral support, he did not become involved in her case or otherwise assist her. It was common knowledge within the Muslim community that the claimant's wife had lodged a claim. The claimant told the Tribunal that he perceived that some members of the Muslim community became less friendly towards him and his wife after her complaint was lodged. Some of the respondent's witnesses confirmed that it was common knowledge within the Muslim community in Northern Ireland that the claimant's wife had taken her case against the Centre. Mr Iweida stated that he believed that the claimant was assisting his wife with the running of her case and referred to a "campaign in the community" on behalf of the claimant's wife. In this context he told the tribunal that he considered the claimant to be "an opponent".

(3.5) The claimant, along with his wife and other members of the Islamic community, was critical of the manner in which the Executive Committee, and particularly Mr Iweida, was conducting the affairs of the Centre. On the 26^th February 2005 the claimant sent an email to Ms Aoibhinn Trainor of the Racial Equality Unit of the OFMDFM in which he raised a number of allegations of misconduct and financial mismanagement of funds by the Belfast Islamic Centre and concerns about the arrangements made to fill the posts of secretary and director. The claimant telephoned Aoibhinn Trainor on several occasions afterwards to discuss the possibility of arranging a meeting with the OFMDFM and to enquire how his complaints had been progressed by her. The claimant asked Ms Trainor to keep these communications confidential.

(3.6) On the 26^th October 2005 the claimant sent a further email setting out the issues of concern to him as requested by Ms Trainor in which he confirmed that he had applied for the position of director at Belfast Islamic Centre. He alleged delay on the part of Mr Iweida in that the short listing for interviews had not yet taken place, although the closing date for applications was 29^th August 2005. The claimant expressed concern that Mr Iweida should not have access to the application forms or be involved in the short listing and selection process, that Mr Iweida was delaying the recruitment process because he was waiting for other people to apply from London and that he himself would not be given a fair interview. Meetings took place between Dougie Topping and Ken Fraser of OFMDFM and the claimant, his wife and a number of other colleagues from the Islamic community at Castle buildings in or about July or August 2005 and on the 25^th November 2005. They discussed financial matters, the Belfast Islamic Centre recruitment policy and procedures, posts funded by OFMDFM and other funding matters. Mr Fraser on behalf of the OFMDFM confirmed that following this there was a departmental investigation of the claimant's allegations and that no evidence of financial mismanagement was found on the part of Belfast Islamic Centre. Mr Iweida told the tribunal that he was unaware of these communications and meetings at the time and only became aware of them after the claimant's present complaint to the tribunal had been lodged.

(3.7) The previous director of the Centre had left his post in December 2004. It was a source of frustration to staff in the Racial Equality Unit that the available funding for the post of Director was not being drawn down by the third named respondent. It was decided in May 2005 to advertise the posts of secretary and director and the job descriptions and job advertisements were sent to Mr Dougie Topping for approval. The reason for this was that the Racial Equality Unit wished to ensure that the advertisement covered the main points of the posts, and of particular interest to the department were the stated salaries and hours worked. In addition as the department was paying for the advert they wanted to be sure that it would "do the business". Mr Topping told the Tribunal that this was the extent of the involvement of the Racial Equality Unit in the arrangements for the recruitment of the director post and that apart from this Belfast Islamic Centre "would have been left to themselves". This recruitment exercise was unsuccessful and the position of Director was re-advertised with a closing date of the 29^th August 2005. The claimant was one of three applicants for the post of director. The application forms were received by Mr Iweida and he told the tribunal that when he saw the claimant's application form he wished to distance himself from the process due to the "sensitivities of the situation" with regard to the claimant's wife.

(3.8) The Executive Committee had appointed an interview panel comprising of Dr Ahmed Bouridane, the second named respondent, Dr Sharhidd Booley and Mr Ghulzar Zaehid. It was suggested that the interview panel had been appointed in May 2005 but the Tribunal did not have any minutes of the Executive Committee before it to confirm if this was the case or not. Both Dr Bouridane, the Chairman of the panel and Dr Booley are lecturers at Queen's University Belfast. Mr Zaehid is a local businessman. It was initially denied that any members of the interview panel were members of the Executive committee and thus were to be regarded as "independent". However it became apparent during the evidence of Dr Bouridane and Mr Zaehid that both had been members of the Executive Committee, and indeed, the latter was still a serving member with responsibility for finance during the selection and recruitment process. Although Dr Bouridane was not a close friend with Mr Iweida to the extent they had not visited one another's homes, they did hold one another in high regard and had formed a close working relationship together in service of the Centre. Dr Booley has never been a member of the Executive Committee but was a user of the Centre and a congregant at the mosque. He had been approached initially by Mr Iweida as someone who might be able to help the Centre and he had acted in a consultative capacity for the Centre.

(3.9) In reply to the claimant's notice for particulars, the third named respondent stated that both Dr Bouridane and Dr Booley had received training on interviews/selection/recruitment/equal opportunities initially provided ten years ago by Queen's University Belfast and that both were sent on refresher courses. While it was clear from Dr Booley's evidence that he did possess extensive experience and training, Dr Bouridane admitted that apart from a one day training course ten years ago he had not had any further training in recruitment or interviewing techniques or equal opportunities. The respondent also stated that Mr Zaehid had extensive experience of almost fifteen years in interviewing techniques/selection procedure/recruitment training/and equal opportunities. However, apart from conducting four or five interviews in Belfast Islamic Centre, Mr Zaehid's experience in interview techniques was acquired in Pakistan and it was clear that he was not familiar with best employment policy and practice in Northern Ireland.

(3.10) There was a conflict of evidence between the respondent's witnesses as to the role of the panel. The members of the interview panel were of the view that it was to short list suitable candidates for interview and then to interview the short listed candidates with a view to making a recommendation to the executive committee as to which candidate should be appointed to the position of director. Mr Iweida told the tribunal essentially that the decision of the interview panel was determinative as to who would be appointed. There was some delay before the claimant was advised that he had been short listed for interview and he approached Mr Iweida on a number of occasions to ask him what the position was with regard to the interviews for the director's post. He was advised on each occasion that Mr Iweida was busy and had not had the opportunity of speaking with the short listing panel.

(3.11) The claimant and a Dr Jehad Zweiry were short listed for interview. The claimant received a letter dated the 25^th October 2005 from Dr Bouridane advising him that he had been short listed for interview on the 8^th November 2005 at 3.00pm at the Centre and that at the beginning of the interview he would be asked to give a "five to ten minute presentation about how you are going to implement your knowledge and experience of fund raising for the centre". The envelope in which the letter arrived was post dated the 2^nd November 2005. The claimant considered it significant that he received this letter after he sent an email to Ms Trainor. The Tribunal was told that one of the short listing criteria was that candidates should be able to demonstrate fundraising experience. The tribunal notes that the application form of the successful candidate makes no mention at all of fund raising.

(3.12) When the claimant arrived at the centre for interview, Mr Iweida informed him that the interview would be delayed by twenty or twenty five minutes. When he was called into the room the claimant gave his presentation which he had prepared on PowerPoint on his PC Laptop. The claimant was asked questions from a prepared list of questions to candidates. Each member of the panel was allocated certain questions and each panel member then allocated marks on an interview assessment sheet under the heading qualifications, relevant experience and knowledge, skills, intellectual ability, special factors circumstances.

(3.13) The claimant recalled Dr Bouridane asking the first three questions. Then Dr Booley asked him a question and as he was about to answer, Dr Bouridane interrupted him by lifting his application form, pointing to it and saying "Do you really want to change you profession, do you really want to apply for this job?" The claimant was taken aback and after a pause stated that yes he felt that he had the qualifications and experience. He claimed that Dr Bouridane interrupted him again and said "Do you really want to change your profession?" The claimant again affirmed that he wished to proceed and he went on to answer Dr Booley's question. Then Mr Zaehid asked him about fund raising. The claimant stated that he started to respond when Dr Bouridane interrupted again by saying "Yes or no, do you have experience in fund raising?" The claimant asserted that he tried to explain about his previous fund raising experience in Pakistan and with the local school PTA when Dr Bouridane said "Tell me yes or no, simple answer, do you have practical experience?". The claimant told the Tribunal that he did not feel that he was given the opportunity to answer questions on fund raising. Dr Bouridane denied the claimant's version of events and that he interrupted the claimant's answers at all. However, Dr Booley confirmed in this evidence that Dr Bouridane did "interject" to "seek clarification." The tribunal is satisfied that the claimant was repeatedly interrupted by Dr Bouridane when he was answering the questions posed by Dr Booley and Mr Zaehid.

(3.14) Mr Zaehid asked the claimant how he would deal with situations of conflict. The claimant interpreted this as a reference to the fact that his wife had lodged a claim against the Centre and that it was designed to elicit his response as to how he would deal with the situation if he was given the job of director. The claimant said that he felt uncomfortable with this question and had responded that he would take the same steps irrespective of whether the person was related to him and irrespective of their sex or creed.

(3.15) At the end of the interview the claimant told the Tribunal that on the whole he felt that the interview went well and that he assessed his chances of being appointed as excellent. However subsequently and on reflection, he became dissatisfied with the manner in which the interview was conducted, although he still considered that his own responses had been satisfactory to the extent that he was permitted to answer the questions. Dr Booley confirmed to the tribunal that he considered that the claimant had performed well albeit that some of the claimant's answers in relation to fundraising lacked depth. He asserted that he was impressed by the claimant's presentation and that the interview panel as a whole was "excited" by his application. By contrast Dr Bouridane told the tribunal that he considered that the claimant did not perform well at interview. The claimant was informed at the end of the interview that the panel intended to notify candidates of the outcome of the interviews in approximately two weeks time.

(3.16) Mr Zweiry was scheduled to be interviewed on the 8^th November after the claimant. However Mr Iweida informed the interview panel, after the claimant's interview, that Mr Zweiry had been unable to travel from Liverpool to Belfast by air as he did not have the requisite travel documents. The interview panel decided to treat this as "circumstances beyond the candidate's control" and therefore his interview was rescheduled for the 18^th November 2005. The claimant was not made aware of this.

(3.17) After each interview marks were allocated by each member of the interview panel on score sheets. Mr Zaehid awarded the claimant a total of 59 marks out of a possible 100 marks and the successful candidate 71 out of 100. Dr Booley awarded the claimant 58 marks out of 100 and the successful candidate 71 out of 100. Dr Bouridane awarded the claimant 59 out of 100 and the successful candidate 72 out of 100. The tribunal noted that all three members of the interview panel gave the claimant 20 marks out of 35 for relevant experience and knowledge. Under this heading was listed "training; supervisory, representing org; Islamic". However the maximum of 35 marks was not divided up as between these qualities. All three members of the interview panel told the Tribunal that the claimant did not demonstrate at the interview the necessary fund raising experience required for the post. Dr Booley stated that apart from this aspect the interview panel considered the claimant was appointable to the post. The interview panel considered that Dr Zweiry demonstrated that he did have the necessary fundraising experience and that he scored higher overall than the claimant. Dr Bouridane recorded on the successful candidate's successful interview assessment sheet that "Jehad recommended unanimously, Dr Nasir is the replacement candidate". The tribunal was satisfied that by this the interview panel meant "reserve candidate".

(3.18) After Dr Zweiry's interview, the panel handed the score sheets back to Mr Iweida and told him of their recommendation. Mr Iweida followed up Mr Zweiry's references and on the 21^st November 2005 wrote to Dr Zweiry informing him that he had been instructed by the selection panel to offer him the post of the director of the Belfast Islamic Centre. Dr Zweiry responded by letter dated the 24^th November 2005 accepting the post. Dr Zweiry started work as director on the 20^th December 2005 he remained in post until Christmas Eve when he returned to Liverpool. There were some concerns about Dr Zweiry's departure and Mr Iweida contacted him on the 26^th December 2005 and he told Mr Iweida that he did intend to return to his post but that first he had some family matters to sort out.

(3.19) On the 2^nd December 2005 the claimant sent a letter to the Belfast Islamic Centre enquiring as to the panel's decision as he had been informed by the selection panel that he would be advised of the outcome of the interview within ten or fourteen days. A letter signed by Dr Bouridane and also dated the 2^nd December 2005 was sent to the claimant advising him that he had been unsuccessful. This letter did not advise the claimant that he was replacement candidate. Dr Bouridane apologised for the late response "which was due to my travel abroad immediately after the interviews finished." He did not mention in that letter that the successful candidate had not been interviewed until the 18^th November 2005.

(3.20) After receipt of this letter, the claimant obtained Mr Zaehid's telephone number through a mutual friend and telephoned him to enquire as to why he had not been appointed. It was the respondent's case that the claimant had telephoned before this to ask whether he had been appointed. Mr Zaehid considered this to be improper and he told the claimant to write to Dr Bouridane. The Tribunal accepted the claimant's evidence that he did not contact Mr Zaehid before he had received the letter informing him of his non appointment.

(3.21) The claimant wrote to Dr Bouridane care of the Belfast Islamic Centre on the 6^th January 2006 requesting feedback from the interview. The claimant did not receive a response, so on the 21^st February 2006 he sent a reminder to Dr Bouridance attaching a copy of his letter of the 6^th January 2006 again requesting feedback as soon as possible. Following this letter the claimant encountered Dr Bouridane in the mosque on the 26^th February 2006. The claimant says that Dr Bouridane became aggressive towards him and asked him why he has written the letters to request feed back and that it was nothing to do with him. He told the claimant not to write to him again and that he was not answering anything. He told the claimant repeatedly that he would not answer his letters and that he should contact Jamal and the Belfast Islamic Centre for feed back. Dr Bouridane had a different version of events in which he alleges that the claimant was aggressive towards him, shouting at him causing a disturbance to worshippers in the mosque.

(3.22) In February 2006 Mr Iweida consulted with a solicitor because Dr Zweiry still had not returned to the post of Director. A letter was sent to Dr Zweiry saying that it was considered that he had resigned from his post. It was put to the claimant in cross examination that Mr Iweida wished to offer the claimant the post when it became apparent that Dr Zweiry did not intend to return. Mr Iweida alleges that he had a meeting with Mr Fraser and Ms Trainor and the Islamic Centre to discuss the possibility of appointing the claimant as the reserve candidate. He cannot remember the date of this meeting. He also states that he telephoned OFMDFM to enquire whether it would be possible to appoint the claimant given the view of the selection panel that he did not have the essential fundraising criterion. He alleges that he was advised by an unidentified staff member of OFMDFM that this would be unfair to other potential candidates for the post. There were no records of either these discussions. Neither Mr Fraser nor Mr Topping had any recollection of such a meeting taking place. Mr Topping told the Tribunal that had this been discussed in his department then more likely than not he would have heard of it. He had no recollection of being informed about any such discussion. Mr Iweida also told the Tribunal that prior to approaching the OFMDFM he had also reconvened a meeting of the interview panel and was advised that subject to the fund raising criterion the claimant was essentially appointable. In their evidence neither Dr Booley nor Mr Zaehid had any recollection of any such meeting taking place. Mr Iweida also told the Tribunal that this issue was discussed at the executive committee however no minutes were produced to the tribunal. The tribunal found Mr Iweida's evidence highly unsatisfactory on this point and concluded that he was not telling the truth.

(3.23) The claimant sent a letter on the 17^th March 2006 addressed to Dr Bouridane and Mr Iweida at the Belfast Islamic Centre making a formal complaint because of the failure to provide him with feed back. In this letter he intimated that because he had been told that he would not receive a response to his request for feedback that he considered "this has become a matter of discrimination". He requested a response within 28 days. Following his letter of complaint dated the 17^th March 2006 he lodged a complaint to the Office of Industrial Tribunals and the Fair Employment Tribunal on the 29^th March 2006 naming Mr Iweida, Dr Bouridane and the Belfast Islamic Centre as respondents, alleging racial discrimination and victimisation. In this he set out the basis of his complaint of victimisation as "I am the husband of Rym Akhonzada who has lodged legal proceedings with the Industrial Tribunal against BIC".

(3.24) On the 6^th April 2006 Dr Bouridane wrote to the claimant to advise that he only acted on the interview panel, that he did not tell the claimant to contact the president and told him to approach the Centre for any clarification. On the 10^th April 2006 the claimant served a statutory questionnaire under Article 74 of the Sex Discrimination Northern Ireland Order 1976 as amended. No response was ever furnished to the claimant by the respondent.

Relevant Law

4. It is unlawful for a person to victimise another person for carrying out a "protected act" by reference to legislation prohibiting discrimination on grounds of sex and/or race.
4.1 Article 6 of the Sex Discrimination (Northern Ireland) Order 1976 as amended (the SDO) prohibits victimisation in a number of circumstances:

6. — (1) A person ( "the discriminator") discriminates against another person ( "the person victimised") in any circumstances relevant for the purposes of any provision of this Order if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has—

(a) brought proceedings against the discriminator or any other person under this Order or the Equal Pay Act, or

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Order or the Equal Pay

(c) otherwise done anything under or by reference to this Order or the Equal Pay Act in relation to the discriminator or any other person, or

(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Order or give rise to a claim under the Equal Pay Act

or by reason that the discriminator knows the person victimised intends to do any of those things, or suspects the person victimised has done, or intends to do, any of them.

(2) Paragraph (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.

Article 4 of the Race Relations (Northern Ireland) Order 1997 as amended (the RRO) is expressed in almost identical terms:

- (1) A person ("A") discriminates against another person ("B") in any circumstances relevant for the purposes of any provision of this Order if -

he treats B less favourably than he treats or would treat other persons in those circumstances; and

he does so for a reason mentioned in paragraph (2).

(2) The reasons are that -

B has -

(i) brought proceedings against A or any other person under this Order; or


(ii) given evidence or information in connection with such proceedings brought by any person; or

(iii) otherwise done anything under this Order in relation to A or any other person; or

(iv) alleged that A or any other person has (whether or not the allegation so states) contravened this Order; or

(b) A knows that B intends to do any of those things or suspects that B has done, or intends to do, any of those things.

(3) Paragraph (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.

Liability of employers and principals

1. Article 42(2) of the SDO and Article 32(2) of the RRO provide in almost identical

terms that anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that other person shall be treated for the purposes of this Order as done by that other person as well as by him.

The correct burden of proof

4.3 In claims of victimisation under the SDO, the statutory reversal of the burden of proof applies:

    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.

The Court of Appeal in Igen provided detailed guidance as to the application of the statutory reversal, which was summarised by Elias J in the Laing case as follows:

"First, the onus is on the complainant to prove facts from which a finding of discrimination, absent an explanation, could be found. Second, by contrast, once the complainant lays that factual foundation, the burden shifts to the employer to give an explanation. The latter suggests that the employer must seek to rebut the inference of discrimination by showing why he has acted as he has. That explanation must be adequate, which the courts have frequently had cause to say does not mean that it should be reasonable or sensible but simply that it must be sufficient to satisfy the tribunal that it had nothing to do with race." This dicta was approved by the Court of Appeal in Madarassy.

However, it would appear, following the decision of the EAT in the Oyarce case, that the common law burden of proof applies to cases of alleged cases of victimisation under the RRO and that the statutory shift does not apply. The burden remains on the claimant at all times to prove on a balance of probabilities that the reason for the less favourable treatment was that (s)he committed a protected act under the RRO. The tribunal reminded itself of the principles and guidance enunciated by Neill LJ in the case of King v Great Britain-China Centre 1991 IRLR 513 approved by Browne Wilkinson LJ in the Zafar case:

(a) "It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on a balance of probabilities he or she will fail.

(b) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers would be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill intentioned but merely based on an assumption that he or she would not have fitted in.

(c) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include in appropriate cases, any inferences that it is just and equitable to draw in accordance with S65 (2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire.

(d) Though there will be some cases where, for example, the non selection of the applicant for the post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law…. but 'almost common sense'.

(e) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to primary facts and draw such inferences as they consider proper from these facts. They should then reach a conclusion on a balance of probabilities, bearing in mind the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case."

The tribunal was mindful that in the present case the claimant was claiming that he had been victimised contrary to the provisions of both the SDO and the RRO.

4.4 The tribunal was referred to and considered the following case law:

St Helen's Borough Council v Derbyshire[2007] UKHL 16; National Probation Service v Kirby [2006] IRLR 508; Nagarajan v London Regional Transport [1999] 572; Igen v Wong (2005) IRLR 258; Oyarce v Cheshire County Council UKEAT/0557/06/DA; Strathclyde Regional Council v Zafar [1997] UKHL 54; Laing v Manchester City Council (2006) IRLR 748; Madarassy v Nomura International plc [2007] IRLR 246; Vento v Chief Constable of West Yorkshire Police (No.2) [2003] !RLR

CONCLUSIONS:

5.1 The tribunal was satisfied that at all times the first and second named respondent were acting as the agents of the third named respondent. The third named respondent did not seek to argue that they were not liable for the acts of the first and second named respondent. In all the circumstances the tribunal determined that the third named respondent was the correct respondent and dismisses the first and second named respondents as parties to these proceedings. The title of the proceedings is amended to reflect the correct name of the third named respondent which is the "Trustees for the time being of the Belfast Islamic Centre".
5.2 The tribunal considered that the correct comparator in this case was a hypothetical comparator with similar qualifications and experience to the claimant and who was appointed reserve candidate but who was not suspected by the respondents of having assisted another person with their complaints of unlawful discrimination to the Industrial Tribunal on grounds of sex and race against the respondent. The tribunal did not consider that the circumstances of the successful candidate were the same or materially different from those of the claimant as he had been adjudged by the interview panel to have fund raising experience. However the tribunal considered that the manner in which the respondent treated the successful candidate was relevant to the issue of how the hypothetical comparator would have been treated.
5.3 The tribunal was satisfied that there was a "protected act" as set out above in the legislative provisions because the claimant's wife had lodged complaints of sex and racial discrimination to the Industrial Tribunal and Mr Iweida suspected that the claimant had assisted her with those complaints and that he was involved in a campaign in the community on behalf of the his wife. Consequently Mr Iweida regarded the claimant to be his opponent.
5.4 Under both the common law position and the statutory reversal, the tribunal must first consider the primary facts and the inferences which may be drawn from those facts. If the facts point to a possibility of unlawful victimisation, then the tribunal must consider the respondent's explanation.

The tribunal concluded that there were facts from which it could conclude or infer the claimant had been victimised. Those facts are:

(a) There was a protected act under both the SDO and RRO.

(b) Mr Iweida acknowledged that he had a conflict of interest and sought to give the appearance that after the claimant had applied for the position he had distanced himself from the appointments process when in fact he was still very much involved in the process.

(c) All of the members of the interview panel were aware that the claimant's wife had made a complaint against the Centre and Mr Iweida. The chairman of the interview panel had a close working relationship with Dr Iweida.

(d) The claimant was less favourably treated than the successful candidate in that he was interrupted by Dr Bouridane when he was giving his answers to the questions relating to fundraising. The interview panel may have awarded the claimant higher marks had he not been so interrupted.

(e) The successful candidate did not demonstrate any fundraising experience on his application form and on paper the tribunal considered that the claimant was the better candidate.

(f) Despite being interrupted by Dr Bouridane when giving his answers, the claimant had performed well at interview to the extent that he was designated reserve candidate and was therefore appointable to the position of Director.

(g) When the successful candidate did not return to his post, the claimant was not appointed to the position. Indeed the claimant was not even informed that he had been made reserve candidate.

(h) The respondent failed to respond to the statutory questionnaire served by the claimant.

5.5 The tribunal was satisfied that it could be inferred from these primary facts that the respondent did not appoint the claimant to the position of Executive Director because it was suspected that he had assisted his wife in her claims of sex and racial discrimination. Applying the common law test the tribunal inferred from these facts that the respondent and particularly Mr Iweida had no intention of appointing the claimant to the position of Director. The tribunal was further satisfied that the above amounted to facts from which, applying the Igen principles, without explanation, unlawful victimization could be inferred.
5.6 It was the respondent's case that the reason why the claimant was not appointed was because the OFMDFM would not permit his appointment. Mr Iweida told the tribunal that the third named respondent wished to appoint the claimant but was prevented from so doing. The tribunal has found that Mr Iweida was not telling the truth in this regard and therefore this was not the true reason why the claimant was not appointed. No other reason for the claimant's non appointment was advanced by the respondent. In these circumstances and weighing all the relevant facts in applying the common law burden of proof, the tribunal does not find the respondent's explanation to be adequate and therefore it infers that there has been unlawful victimisation contrary to the provisions of the RRO. The tribunal is satisfied that the claimant would have been appointed to the position of Director had the respondent not suspected the claimant of assisting his wife.
5.7 Further, the tribunal is satisfied that logically it must follow that the respondent has not discharged the statutory burden imposed by the SDO of showing that the non appointment of the claimant had nothing to do with the fact that the claimant was suspected of assisting his wife with her complaint of sex discrimination.

Therefore the tribunal is satisfied that the claimant's complaint of victimisation under the SDO and RRO is well founded.

Award

6. Having considered the evidence and submissions the tribunal decided to award the claimant compensation. The tribunal's calculation is based on the agreed figures in the Schedule of Loss. The tribunal however considers that the claimant's net loss should be calculated as from the date that it became apparent to the respondent that the successful candidate did not intend to return to the post of Director. The tribunal has taken this date for the purpose of calculating the claimant's net loss of income as 1^st February 2006. The tribunal considered that it is proper to award the claimant three months future loss of income as it is incumbent on the claimant to mitigate his loss. The Tribunal did not have any evidence before it that the claimant had made efforts to seek more highly paid employment whether by way of a promotional post or with another employer. The tribunal determined that the claimant should be compensated for his demonstrated injury to feeling which the tribunal was satisfied fell within Band 1 of the guidance contained in the Vento (No.2) case. Further the tribunal was satisfied that it is appropriate to award interest on the award for actual loss and injury to feeling pursuant to the Industrial Tribunals (interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996.

Actual Loss £7,157.00

Net earnings if appointed to post = £28 333.39

1^st February 2006 – June 2007

£1,666.67 per month x 17 months

LESS

Actual net earnings = £21,176.39

QUB February 2006 – August 2006

£1,573.17 per month x 7 months= £11,012.19

Plus

NICS September 2006 – June 2007

£10,16.42 per month x 10 = £10,164.20

Future Loss of Earnings £1,950.75

£1,666.67 - £1,016.42 x 3 months

Actual loss plus future loss £9,107.75

PLUS

INJURY TO FEELING £3,000.00

Interest at 8% on award to injury to feeling

from 1^st February 2006 until 17^th November 2007 £ 431.17

Interest on the sum of £7,157 from "midway point"

between 1.02.06 and 17.11.07 ie 24^th December 2006 £ 616.08

TOTAL COMPENSATION PAYABLE £13,155.00

This is a relevant decision for the purposes of the Industrial Tribunals (Interest) (Northern Ireland) Order 1990.

Chairman:

Date and place of hearing: 29 January 2007 – 1 February 2007

23 April 2007 – 26 April 2007

7- 8 June 2007

10 September 2007