Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REFS: 1410/07;

1486/07

CLAIMANT: Charles Richard Samuel Robinson

RESPONDENTS: 1. John Graham (Dromore) Limited

2. Harry Foster

3. Patricia Moley

4. Christine Boyd

DECISION

The unanimous decision of the tribunal is that the claimant did not suffer discrimination on the basis of his age, at the hands of the respondents, when he applied to the first named respondent for employment.

Constitution of Tribunal:

Chairman: Mr Cross

Panel Members: Mr Archer

Mr Brewster

Appearances:

The claimant represented himself.

The respondents were represented by Mr J Kennedy, Barrister-at-Law, instructed by McGrigors Solicitors.

1. At the outset of the hearing it was agreed that the first named respondent was the appropriate respondent and that the other named respondents, who are all employees of the first named respondent, should be dismissed from the proceedings. The parties agreed that both sets of proceedings could be dealt with together. The second proceedings had been instigated by the claimant to make sure that all appropriate respondents were included in the claim.

The Evidence

2. The tribunal were furnished with witness statements and heard oral evidence from the claimant and from Mr Harry Foster, Ms Patricia Moley and Ms Christine Boyd on behalf of the first named respondent.

Findings of Fact

3. The first named respondent, (hereinafter called "the respondent"), which ran a training organisation, for amongst others, young adults, had a need to recruit Essential Skills Tutors, one full time and one part time/ temporary. The respondent also wished to recruit a temporary Training Consultant. Advertisements were placed in the Belfast Telegraph on 13 February 2007 for these posts. The advertisement for the Essential Skills posts stated that applicants "should have a NVQ Level 4 Teaching and Management of Essential Skills qualification and at least one year's experience of delivering Essential Skills qualifications".
4. The other post advertised was for the Training Consultant. This advertisement in the same edition of the paper as above mentioned, stated that the Training Consultant "should have good communication skills, experience of working with the 16-25 age group and preferably a knowledge of Government funded training programmes." The successful applicant for this post was Ruth Liggett who was born in 1948 and had a qualification as an internal assessor and verifier for NVQ.
5. The claimant applied for the full time post of Essential Skills Tutor and on the same application form, for the Post of temporary Training Consultant. Unfortunately the respondent failed to realise that the claimant had applied for the two posts and only considered him for the full time post of Essential Skills Tutor. After the claimant had spent some time getting confirmation that his qualification in teaching NVQ literacy skills was a sufficient qualification for the post, without the other qualification that he might have had, namely numeracy teaching, the claimant completed an application form for the post.
6. The respondent received 12 applications for this post and short listed 10 applicants for interview. A number of the applicants had the NVQ Level 4 qualification that was referred to in the job advertisement. A number had a degree of a similar nature, which the respondent considered to be of the same level as the NVQ Level 4 qualification. One applicant, who was the successful applicant, had a degree and was about to receive a NVQ Level 4 teaching qualification in literacy. All these people were short listed for interview.
7. The applicant for the Essential Skills post was, as mentioned above, still studying for the required NVQ Level 4 qualification. This applicant was Karin Greene, who the claimant named as his comparator in his claim that he was discriminated against on the basis of his age.
8. The interviews were held over two days in March 2007. The interviewers were the respondent's Training Manager, Ms Patricia Moley and the Training Manager (Qualifications), Ms Christine Boyd. Neither of these interviewers had received any training in interviewing. The room where the interviews took place was not large but adequate for a meeting of three people. The questions put to the applicants for the post were the same for each person and were put by the interviewers alternately.
9. The claimant stated that the body language of the interviewers and their failure to develop lines of questioning in a probing manner, gave him the impression that they were not interested in his application and that they had decided against him from the outset. He told the tribunal that he felt that they considered him; not to be a "team player". The tribunal having examined the evidence and the recorded answers to the interview questions do not find these allegations proven.
10. Another line of questioning pursued by the interviewers was aimed at finding out how the claimant identified with his students. The claimant mentioned sports and games which he had always enjoyed and taken part in. The interviewers appear to have picked up this answer wrongly and this led to an unfortunate misunderstanding. However the tribunal do not consider that it had any bearing on the age discrimination claim, but may have added distance between the interviewers and the interviewee.
11. The interviewers did not adopt a scoring system in respect of the answers to the questions, but made their appointment decision on the interview linked with the CV and presentation of the applicants at the interview.
12. The claimant was asked a question relating to his employment in a college, which was more lucrative than teaching at an establishment such as that of the respondent. There was some debate as to whether the claimant was asked a question concerning any experience that he might have in bidding for resources at his college. The tribunal believe that a question of this nature was asked.
13. One of the questions was introduced by a sentence, on the lines of, "we are a small team at Graham Training". The tribunal found that this was a reasonable introduction to a question.
14. The two interviewers stated in their evidence, that the claimant had left the interview, when it terminated, in an agitated manner. He shut the door abruptly and stormed out of the building. The claimant denied this. The tribunal found it difficult to decide which version of the event to accept, but, on balance hold that the claimant was somewhat annoyed at what he considered to be an inadequate interview and may have given the impression of impatience with his interviewers.

The Law

15. Regulation 3 of the Regulations states in 3(1) the definition of Age Discrimination

3(1) For the purpose of these Regulations, a person ("A") discriminates against another person ("B") if—

(a) on the grounds of B's age, A treats B less favourably than he treats or would treat other persons,

(b) [this subsection deals with indirect discrimination which is not relevant to this case]

3(2) A comparison of B's case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different in the other.

3(3) In this regulation-

(a) "age group" means a group of persons defined by reference to age, whether by reference to a particular age or a range of ages; and

(b) the reference in paragraph 1(a) to B's age includes B's apparent age.

16. Regulation 42 has the effect of reversing the burden of proof in age discrimination cases. If the claimant can prove facts, from which the tribunal could draw inferences of discrimination, in the absence of an adequate explanation, then the tribunal will uphold the complaint, unless the tribunal is satisfied, on the evidence of the respondent that the respondent did not discriminate against the claimant.
17. In this case the tribunal had in the first instance to decide whether there were any facts that suggested that the respondent had discriminated against the claimant.

The Decision

18. The tribunal could not find any facts that could lead to a presumption of discrimination that would in turn trigger the reversal of the burden of proof in this case. The only finding of fact by the tribunal that might have been sufficient in this respect did not stand up to careful scrutiny. This was the fact that the claimant already had the qualification referred to in the advertisement for the job, namely, "Applicants should have a NVQ Level 4 Teaching and Management of Essential Skills qualification". The comparator Ms Greene had not yet acquired that qualification. However the tribunal was aware that all the applicants for the post were short listed with the exception of two. Some of the applicants, like Ms Greene, did not have the NVQ Level 4 qualification but had a somewhat similar degree, as did Ms Greene. The tribunal hold that it was reasonable for the respondent to throw the interview process open to this larger group of applicants, in an attempt to recruit from a larger pool. The words in the advertisement were, "should have", not "must have". It would have been a different matter if the claimant had not been short listed, despite having the sought after qualifications and the comparator had been short listed without them. The tribunal hold that the claimant had his chance at interview to impress the interviewers and therefore this difference in qualifications between the claimant and the comparator, was not a finding of fact from which the tribunal could draw inferences of discrimination.
19. The tribunal then examined the other facts that had been found but could see no prima facia evidence of discrimination. There were some points where the tribunal was critical of the respondent's procedures; for instance in not having a balanced interview panel, male and female. The interviewers did not have a scoring system, which would have shown more clearly and objectively the difference between the claimant and the comparator. The fact that the interviewers had had no training in recruitment procedures and interview techniques and no one from the respondent's Human Resources department was present to assist with the interviews. However none of these shortcomings, which were consistent throughout all the interviews, were of such a nature as to persuade the tribunal to invoke the reversal of the burden of proof provisions.
20. The tribunal is satisfied that the claimant was treated correctly at his interview and given the opportunity to expand on his abilities, strengths and considerable experience. Unfortunately his experience and strengths, in the joint view of the interviewers, were more suited to a college environment than to a training set up such as that operated by the respondent. Furthermore the courses attended by and qualifications achieved by Ms Greene were more appropriate to the respondent's needs, than the management based qualifications that were offered by the claimant.
21. The tribunal did not consider that the claimant had made out any case of discriminatory treatment in his allegations concerning the way that the interviewers conducted the interview, namely their alleged negative body language, their failure to probe into issues in their questioning and his feeling that they had made up their mind on a successful candidate and were merely going through a pretence of interviewing him trying to bring it to an end as soon as possible. The tribunal hold that nothing turns on the display of temper by the claimant at the end of the interview.
22. The tribunal would be critical of the respondent in not realising that the claimant had applied for both the advertised posts. However it accepts that this was a genuine mistake and not evidence of any discriminatory intent. In any event it does appear to the tribunal that the successful candidate for the Training Consultant post was better qualified than the claimant and indeed any other applicants, in that she was qualified to act as a registered verifier and internal assessor for the NVQ system. She was also of a similar age to the claimant. The tribunal hold that the claimant's claim of discrimination in respect of his failure to secure this post is dismissed.
23. For these reasons, the claimant's claims under the above mentioned case references, of discrimination, by the respondent, in contravention of the Regulations are dismissed.

Chairman:

Date and place of hearing: 31 March 2008 and 1 April 2008, Belfast.

Date decision recorded in register and issued to parties: