Industrial Tribunals Northern Ireland Decisions

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Cite as: [2008] NIIT 1200_05IT, [2008] NIIT 1200_5IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 01200/05

CLAIMANT: James Robert Peifer

RESPONDENTS: 1. Castlederg High School

2. Western Education & Library Board

DECISION

The unanimous decision of the tribunal is that a reference to the European Court of Justice is refused and that the claimant's claims of direct discrimination on the ground of sex and indirect sex discrimination are dismissed against both respondents. The claimant's application for costs is also refused.

Constitution of tribunal:

Chairman: Mr S A Crothers

Members: Mr J Nicholl

Mrs S Doran

Appearances:

The claimant was present and represented himself.

The respondents were represented by Mr A Colmer, Barrister-at-Law, instructed by the Education & Library Board's Legal Service.

The claimant claimed that he had been the subject of unlawful discrimination on the ground of sex in not being short-listed for the post of classroom assistant at Castlederg High School. He also claimed indirect sex discrimination. The respondents denied all such allegations.

The tribunal heard evidence from the claimant and from Mr Desmond Williamson, principal of Castlederg High School, Miss Helen Duffy, Head of Human Resources, Western Education and Library Board, Mrs Emer Palmer, Senior Manager-Central Services for the Human Resources Division of the Western Education and Library Board, Mrs Jean Fletcher, Governor of Castlederg High School, Louise Wiltshire, Recruitment, Appointments and Contracts Management, Human Resources Western Education and Library Board, Mr Robert Montgomery Chairman of the Board of Governors at Castlederg High School, the Reverend David Skuce, Governor of Castlederg High School, Mr Gerald Sproule, member of the appointments committee of the Board of Governors of Castlederg High School, Mr Edward Stevenson, member of the Board of Governors of Castlederg High School, Reverend David William Reid member of the Board Governors of Castlederg High School, and Miss Molloy, Equal Opportunities Officer at the Western Education and Library Board. The tribunal was also presented with bundles of documentation.

The claimant in correspondence dated 6 December 2007 renewed his request for a reference to the European Court of Justice.

In conducting the proceedings the tribunal reminded itself of the tribunal's overriding objective as set out in Regulation 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 which reads as follows:-

"3 – (1) the overriding objective of these Regulations and the rules in Schedules 1, 2, 3, 4, 5 & 6 is to enable tribunals and Chairman to deal with cases justly.

(2) Dealing with a case justly includes, so far as practicable –

(a) ensuring that the parties are on an equal footing;

(b) dealing with the case in ways which are proportionate to the complexity or importance of the issues;

(c) ensuring that it is dealt with expeditiously and fairly; and

(d) saving expense.

(3) A tribunal or Chairman shall seek to give effect to the overriding objective when it or he –

(a) Exercises any powers given to it or him by these regulations or the rules in schedules 1, 2, 3, 4, 5 and 6; or

(b) Interprets the Regulations or any Rules in Schedules 1, 2, 3, 4, 5 and 6.

(4) The parties shall assist the tribunal or the Chairman to further the overriding objective".

The tribunal also reminded itself of the comments of Lord Justice Mummery in the case of Bache –v- Essex County Council 2000 IRLR 251, CA as follows:-

"(1) At the hearing the tribunal must follow a procedure which is fair to both sides. It must normally allow each party to call relevant evidence, to ask relevant questions of the other side's witnesses and to make relevant submissions on the evidence and the law.

(2) The tribunal is responsible for the fair conduct of the hearing. It is in control. Neither the parties nor their representatives are in control of the hearing.

(3) Procedural fairness applies to the conduct of all those involved in the hearing. Just as the tribunal is under a duty to behave fairly, so are the parties and their representatives. The tribunal is accordingly entitled to require the parties and their representatives to act in a fair and reasonable way in the presentation of their evidence, in challenging the other side's evidence and in making submissions. The rulings of the tribunal on what is and is not relevant and on what is the fair and appropriate procedure ought to be respected even by a party and his representative who do not agree with a ruling".

In the light of the above the tribunal was unanimously of the view on 13^th day of the hearing that it must point out to the claimant that it was becoming increasingly exasperated by his failure to respond effectively to its repeated requests to ask questions of witnesses in cross-examination and not to make comments, introduce pre-ambles, and make submissions. The tribunal felt strongly that the claimant must take these requests seriously in order for it to proceed in accordance with its overriding objective which it had referred to previously. In light of these remarks it saw little reason as to why the case should not be completed on the 14^th day of hearing. The tribunal also ruled after the evidence on 7 December 2007, that it was unnecessary for the Department of Education and Mr Curran to be joined to the proceedings. Furthermore, it ruled, having also taken into account submissions by the respondent, that all relevant discoverable documentation had been provided which was necessary for the fair disposal of the proceedings. The tribunal also ruled that it did not consider it either relevant or necessary to recall the Reverend David Skuce regarding who the first person was to spot the claimant's unsigned application form. It subsequently transpired that the respondent had not made available all relevant discovery. The tribunal was critical of the respondents and issued an Order for Discovery. It also ordered that a list of documents accompanied by sworn affidavits should be provided. It called for and received an explanation from the respondents which it carefully considered and on balance accepted. The tribunal also considered the claimant's application for a wasted costs order relative to 4 January 2008, when, due to adverse weather conditions, the respondent's legal representatives were unable to attend the hearing. The tribunal is satisfied that in the circumstances it would be inappropriate to accede to the claimant's application, and the application is therefore refused.

The claimant had proceeded to record the proceedings of the tribunal without permission for several days of hearing. As a result of correspondence forwarded to the tribunal Office in which he quoted the tribunal Chairman verbatim, the tribunal enquired as to whether he was recording the proceedings. Having confirmed that this was the case, the tribunal, after due consideration, allowed him to proceed on certain conditions. At a later stage in the tribunal hearing, the tribunal read out Section 9 (1)-(3) of the Contempt of Court Act 1981 where the claimant's responsibilities are clearly set out.

The Issues

The issues before the tribunal were as to whether the claimant was unlawfully discriminated against on the ground of his sex in the recruitment for the post of classroom assistant at Castlederg High School, and if he was also the subject of indirect sex discrimination.

Findings of Fact

Having carefully considered all of the evidence insofar as same was relevant to the issues before it, the tribunal made the following findings of fact on the balance of probabilities:-

(1) The claimant applied for the post of classroom assistant at Castlederg High School ("The School"). The closing date for the application was 27 June 2005. His application was received by the Western Education and Library Board ("The Board") on 22 June 2005. At the end of the form the following words appear:-

"I declare that I have not canvassed in any way and that the information contained in this form is true and accurate.

Signed: _________________ Date __________________

Completed application forms should be returned to the:

The Equal Opportunities Section, Western Education & Library Board, 1 Hospital Road, Omagh, County Tyrone, BT79 0AW."

The form was unsigned and undated. Prior to the claimant's application form being received, Mr Williamson, as principal of the school, completed a Human Resources requisition form (RS1) for the post of permanent full-time classroom assistant. Under the heading of "Any Special Terms and Conditions Applicable to this post", the wording, as amended by Mr Williamson reads:-

"Qualified status. Recent relevant experience is essential".

The tribunal is satisfied that the form was received by the Board on 6 June 2005. A note is placed on the form by Miss Wiltshire and reads, "advise principal not to use the word "recent" LW". This form was then used to advertise the post. The job description under the title of "Qualifications and Experience" reads:-

"Applicants must have attained qualified status and have experience of working with special needs children preferably those with physical disability".

The short-listing panel comprising Reverend Reid, Reverend Skuce, Mr Sproule, Mr Stevenson, Mrs Fletcher and Mr Montgomery, met on 29 June 2005. The report of proceedings of the short-listing panel (RS3) signed by Mr Montgomery as Chairman contains the following note by Mr Montgomery:-

"MR J PEIFER HAS NOT SIGNED HIS APPLICATION FORM. DID NOT CONSIDER HIS APPLICATION".

This form also contains a note, dated 30 June 2005 by Miss Wiltshire which reads as follows:-

"Advise Principal I should be included because she has an HNC in caring services. B of G took that certificate is lower than diploma – not the case – as per equivalent paper.

LW

30/6/05".

"I" refers to a female candidate.

(2) The essential criteria on this RS3 form were as follows:-

(i) Applicants must have attained qualified status;

(ii) Applicants must have recent experience of working with special needs children.

The tribunal noted that other RS2 and RS3 forms had the word 'recent' deleted. However the tribunal is satisfied that the word 'recent' is not relevant to the issues before it.

(3) The tribunal carefully examined the short-listing assessment forms "RS2s" completed by each panel member and accepts the respondent's evidence that the criteria were established before any application forms were examined. In that process, it was noticed that the claimant's application form was neither dated nor signed and, in accordance with an established unwritten policy, the form was not considered further as being unsigned and incomplete. The claimant accepted during the course of the hearing that the criteria were not applied to him in any way. The tribunal also accepts the respondents' evidence that both criteria were examined against the remaining candidates and that it was normal practice for the second criterion to be considered against a candidate even if that candidate had not met the first criterion. Furthermore the tribunal accepts that in addition to the successful candidate, there was a reserve candidate who was offered a post, without interview, within the 12 month period established by the appointment's panel. She took up this post after the 12 month period but the tribunal is satisfied that this was normal procedure.

(4) The tribunal carefully examined the evidence in relation to the claimant's claim that in 2002 a female candidate for a similar post had been rejected at short-listing not because of her failure to sign the application form but on the basis that she had not met the short-listing criteria. The tribunal accepts the consistent oral evidence given by the Governors who were responsible for the 2002 short-listing, that the real reason for not short-listing the relevant female candidate was for the same reason as in the claimant's case, namely that she had not signed her application form. In accordance with the same unwritten policy the form was rejected as being unsigned and therefore incomplete. In so finding, the tribunal also considered the legislative basis for the appointments procedure and the provisions of the relevant codes of practice. The respondents' representative had already made it clear at the outset of the hearing that the respondents conceded that the claimant would have met the short-listing criteria if they had been applied to him but that factually, in their contention, the criteria were never considered in relation to the claimant.

(5) The tribunal, in arriving at its finding in relation to the policy regarding unsigned application forms, examined carefully the exchange of correspondence between Mr Williamson and the Board. In his correspondence to Miss Duffy, Head of Human Resources at the Board, dated 7 November 2005, Mr Williamson states as follows:-

"As I am sure you are well aware, one of the candidates for a recent appointment to Classroom Assistant for our school, Mr Peifer, referred a claim to the Industrial tribunal on grounds of sex discrimination (in common with many other schools) because he had not been short-listed.

At a meeting with the Board of Governors on 21/9/05 the members had requested me to seek clarification on this matter. Our appointments committee did not consider his application because he had not signed his form and because of the need to achieve a manageable shortlist. They believed this to be correct according to their training. However, it has been suggested, that perhaps a candidate should be given a chance to sign the form. Is this correct and is it written down somewhere that they may have overlooked. An early response would ease their anxiety".

(6) In conjunction with the correspondence the tribunal also considered the minutes referred to dated 21 September 2005 and the evidence given on behalf of the respondents in regard to same. The reply furnished by Mrs E Palmer, Senior Manager (Central Services at the Board) dated 14 November 2005 to Mr Williamson states, inter alia:

"I am writing in reply to your letter of 7 November 2005 in which you query the acceptance of unsigned application forms.

As failure to sign an application form can often be due to an oversight on the applicant's behalf, the Board would advise that if a candidate meets the criteria specified he/she should be short-listed for interview and given an opportunity to sign the form at interview.

This view is supported by the Board's Joint Legal Service.

I hope this has answered your query."

(7) The Governors of the School were consistent in their evidence in referring to the fact that this correspondence from the Board contained the word "should" and not "must". This meant that up to the date of hearing they would apply the same policy as in the claimant's case on 29 June 2005, and would continue to do so until a specific direction in writing is received from the Board to the effect that in circumstances such as those pertaining to the claimant, the candidate is considered against the short-listing criteria and if called to interview is given an opportunity of signing and dating the application form at that point in time. Furthermore, the tribunal accepts that candidate "1" was short-listed for the reasons specified by Miss Wiltshire on the RS3 form (supra).

(8) The tribunal accepts that the essential criteria for classroom assistants posts are contained in a document known as "Circular 34" in which lists of qualifications are set out. This is a jointly negotiated document as between management and the Trade Unions spanning the 5 Education Boards operating in Northern Ireland.

The Law

The Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001 substituted a new Article 3 in the Sex Discrimination (Northern Ireland) Order 1976 ("The Order"). This was the relevant law at the time of the circumstances giving rise to the claimant's claim and the presentation of his claim to the tribunal. Article3(2) of the Order provided as follows:-

"(2) In any circumstances relevant for the purposes of a provision to which this paragraph 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, or

(b) he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but –

(i) which is such that it would be to the detriment of a considerably larger proportion of women than of men,

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

(iii) which is to her detriment".

These provisions relating to sex discrimination against women are to be read as applying equally to the treatment of men. Indirect discrimination will occur where a person applies an apparently neutral provision, criterion or practice to the detriment of (in this instance) a man and to a substantially higher proportion of men than women, unless that criterion, provision or practice can be justified by objective factors unrelated to sex.

The Order was further amended with effect from 5 October 2005 by the Employment Equality (Sex Discrimination) Regulations (Northern Ireland) 2005. These regulations, which were made under Section 2(2)(a) and (b) of the European Communities Act 1972 implemented in Northern Ireland, Council Directive 2002/73/EC of 23 September 2002 by further amending Article 3(2) of the Order in respect of the definition of indirect discrimination as follows:-

"(b) he applies to her a provision criterion or practice which he applies or would apply equally to a man, but –

(i) which puts or would put women at a particular disadvantage when compared with men,

(ii) which puts her at that disadvantage, and

(iii) which he cannot show to be a proportionate means of achieving a legitimate aim".

Again the wording is to be read as applying equally to the treatment of men.

Article 7 of the Order states that a comparison of the cases of persons of different sex under Article 3(1) or 1(2) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

The Burden of Proof Regulations

Article 63 A of the Order states:-

"(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 or harassment 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 or harassment against the complainant, the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, he is not to be treated as having committed that act".

In Igen Ltd (formerly Leeds Carers Guidance) and Other –v- Wong, Chamberlains Solicitors and Another –v- Emokpae; and Brunel University –v- Webster (2006) IRLR 258, the Court of Appeal in England and Wales set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race and disability discrimination as follows:-

"(1) Pursuant to section 63A of the SDA, it is for the claimant who complains of sex discrimination to provide 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 by virtue of Part II or which by virtue of s. 41 or s. 42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as "such facts".

(2) If the claimant does not prove such facts he or she will fail.

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

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

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

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

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

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

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

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

(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex since "no discrimination whatsoever" is compatible with the Burden of Proof Directive.

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

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

The tribunal also considered the following authorities, McDonagh and Others –v- Hamilton Thom trading as The Royal Hotel, Dungannon (2007) NICA. Madarassy –v- Nomur International Plc (2007) IRLR 246 ("Madarassy"), Laing –v- Manchester City Council (2006) IRLR 748 and Mohmed –v- West Coast Trains Ltd (2006) UK EAT 0682053008. It is clear from these authorities that in deciding whether a claimant has proved facts from which the tribunal could conclude in the absence of an adequate explanation that discrimination had occurred, the tribunal must consider evidence adduced by both the claimant and the respondent, putting to the one side the employer's explanation for the treatment. As Lord Justice Mummery stated in Madarassy at paragraphs 56 and 57:-

"The Court in Igen –v- Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent "could have" committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal "could conclude" that on the balance of probabilities the respondent had committed an unlawful act of discrimination.

"Could conclude" in s.63A(2) must mean that "a reasonable tribunal could properly conclude" from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory "absence of an adequate explanation" at this stage ……., the tribunal would need to consider all the evidence relevant to the discrimination complaint; for example evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by S5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment".

The above relates mainly to direct discrimination. In relation to the burden of proof in indirect sex discrimination cases, useful guidance is to be obtained from the case of Nelson -v- Carillion Services Ltd (2003) IRLR 428 CA, where Simon Brown LJ viewed the state of the law in light of the changes made by the 2001 Regulations and concluded:

"It seems to be tolerably clear that the effect of s.63A was to codify rather than alter the pre-existing position established by the case law. The burden of proving indirect discrimination under the 1975 Act was, ……… always on the complainant, and there pursuant to s.63A it remains, the complainant still having to prove facts from which the tribunal could conclude that he or she has been unlawfully discriminated against "in the absence of an adequate explanation from the employer." Unless and until the complainant establishes that the condition in question has had a disproportionate adverse impact upon his/her sex the tribunal could not in my judgement, even without explanation from the employer, conclude that he or she has been unlawfully discriminated against".

The tribunal also considered the case of Rutherford -v- Secretary of State for Trade and Industry (No. 2) [2006] UKHL.19, [2006] IRLR 551 where Baroness Hale at paragraph 72 states as follows:-

"It is of the nature of such apparently neutral criteria or rules that they apply to everyone, both the advantaged and the disadvantaged groups. So it is no answer to say that the rule applies equally to men and women, or to each racial or ethnic or national group, as the case may be. The question is whether it puts one group at a comparative disadvantage to the other. However, the fact that more women than men, or more whites than blacks, are affected by it is not enough. Suppose, for example, a rule requiring that trainee hairdressers be at least 25 years old. The fact that more women than men want to be hairdressers would not make such a rule discriminatory. It would have to be shown that the impact of such a rule worked to the comparative disadvantage of would-be female or male hairdressers as the case might be".

Conclusions

(i) In coming to its conclusions the tribunal also had the extensive written submissions furnished by the claimant together with the respondents' written submissions. Both parties had an opportunity of further addressing the tribunal at the hearing held on 15 February 2008. Because of the extensive nature of the written submissions they are not reproduced in this decision but are to be treated as if they were annexed hereto.

(ii) It is recorded in the record of the Case Management Discussion of 17 May 2007 that the claimant requested the tribunal to make a reference to the European Court of Justice. The Chairman at that stage had regard to the factual situation in the case, and the respondents' defence (which did not deny that the claimant met the criteria for the post) and the claimant's persistent failure to specify, or identify any provision, criterion or practice which was allegedly indirectly discriminatory and refused to make such a reference. Article 234 of the EC Treaty states that a National Court or tribunal may refer an appropriate question to the European Court of Justice as long as it regards a ruling on that question as being necessary. The tribunal does not consider such a reference to be necessary to enable it to give a decision in this case. It is also mindful of the considerable delay and expense which in the tribunal's view will be unnecessarily incurred in making such a reference. The claimant's application is therefore refused.

(iii) In the context of the claimant's claim of direct discrimination on the grounds of sex, the tribunal is not satisfied that the claimant has proved facts from which conclusions could be drawn that the respondents have treated him less favourably on the ground of sex. The female candidate who was not short-listed for a post of classroom assistant in 2002 was excluded for the same reason as the claimant when he applied for a similar post in 2005, that is because she had not signed the application form for the post and it was therefore incomplete. There is therefore no evidence that there was any difference in treatment at all as between the claimant and this comparator.

(iv) Similarly, in the context of his indirect discrimination claim, the tribunal is not satisfied under either of the definitions of indirect discrimination referred to at paragraph 10 (supra) that the claimant has proved such facts from which the tribunal could conclude in the absence of an adequate explanation that he was subjected to unlawful indirect sex discrimination. The reason why he was excluded from short-listing was because he had not signed and completed the application form. The short-listing criteria were not applied to him in any way. The respondents accepted that had the short-listing panel considered his application form, he would have met the short-listing criteria. Therefore, despite the agreed statistical evidence furnished to the tribunal, the claimant fails in this claim as well.

The claimant's claims against both respondents are therefore dismissed.

Chairman:

Date and place of hearing:

4-7 September 2007, Strabane;

26-30 November 2007, Strabane;

3-7 December 2007, Strabane;

21 December 2007, Belfast;

4 January 2008, Strabane;

22 January 2008, Strabane;

15 February 2008, Strabane.

Date decision recorded in register and issued to parties: