Industrial Tribunals Northern Ireland Decisions

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Cite as: [2008] NIIT 66_06IT, [2008] NIIT 66_6IT

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 66/06

67/06

CLAIMANTS: Beatrice Debast

Caroline Sara Flynn

RESPONDENTS: 1. Dr J Malcolmson

2. Laurelhill Community College Board of Governors

3. South Eastern Education and Library Board

DECISION

The unanimous decision of the tribunal is that the claimants were not subjected to any detriment by the respondents' failure to appoint them to the post of Head of the Modern Languages Department for the sole or main purpose of preventing or deterring them from being members of the NASUWT, preventing or deterring them from taking part in the activities of the NASUWT or penalising them from doing so.

Constitution of Tribunal:

Vice President: Mrs P Smyth

Members: Ms T Madden

Mr J Kinnear

Appearances:

The claimants were represented by Mr David Bell.

The respondents were represented by Ms Anne Finnegan, Barrister-at-Law, instructed by The Education & Library Board's Legal Services.

The background

1 In 2002, a pupil at Laurelhill Community College made an allegation of indecent assault against a teacher, Mr David Bell. The teacher was suspended pending criminal proceedings. The charge of indecent assault was subsequently withdrawn and the teacher pleaded guilty to assault. Upon his return to work in October 2004, staff who were members of the NASUWT took part in industrial action over a period of four days in protest over the Board of Governors' handling of the matter and in particular their failure to remove the child who had made the allegation from the school. The industrial action was brought to an end when the child was removed from the school by her parents.

2 At the time of the industrial action there were 65 teachers at the school in addition to the principal. 53 members of staff took part in the industrial action. Teachers involved in the industrial action either failed to turn up at the school or took part in a picket at the school premises.

3 There was widespread media coverage of the industrial action, and some photographs of the picket line were published in the press. In addition, Mr Mason, Human Resources Manager with the S.E.E.L.B, took one photograph of the picket line which was subsequently destroyed as part of a Labour Relations Agency negotiated settlement of the dispute.

4 Teachers involved in the industrial action were informed that such action was in breach of their contracts of employment. The names of all staff who took part in the industrial action were subsequently provided to the Board to enable deductions to be made to their salaries.

The claim

1 Ms Flynn and Ms Debast (the claimants) are teachers in the Modern Languages Department in the school and are members of the NASUWT. Both claimants took part in the industrial action in 2004 and in particular took part in the picket line. Ms Flynn is married to Mr Bell, the teacher at the centre of the dispute. Ms Flynn also acted as Secretary at union meetings within the school.

2 In September 2005, almost one year after the industrial action, both claimants applied for the post of Head of the Modern Languages Department. At that time there were four permanent members of teaching staff in the Department including the claimants. The others were Mrs Sarah Gray and Mrs Rebecca Miskelly (the successful candidates) who taught on a job-share basis and who were also members of the NASUWT. Mrs Miskelly took part in the industrial action but was not on the picket line. Mrs Gray was on maternity leave at the relevant time. All four members of the teaching staff applied for the post of Head of Department with Mrs Gray and Mrs Miskelly applying on a job-share basis. Mrs Gray and Mrs Miskelly were appointed to the post.

3 The claim is brought under Article 73 of the Employment Rights (Northern Ireland) Order 1996 as amended. The issue for the tribunal is whether the claimants were subjected to a detriment by not being appointed to the post of Head of Department for the sole or main purpose of:-

(a) preventing or deterring them from being or seeking to become a member of an independent trade union, or penalising them for doing so;

(b) preventing or deterring them from taking part in the activities of an independent trade union at an appropriate time, or penalising them from doing so;

(ba) …

(c) compelling them to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions.

Mr Bell on behalf of the claimants contended that although all four candidates were members of the NASUWT, and all except Mrs Gray who was on maternity leave, had taken part in the industrial action, the claimants were perceived as being candidates who had very publicly and openly supported the union and all its actions because they had been on the picket line and were therefore not selected by the panel. Mr Bell alleged that over the past decade NASUWT candidates were successful in only three of the 15 occasions they competed against non-NASUWT candidates for promotion. He contended that there was evidence of a bias against NASUWT members. He pointed to the fact that a relatively low number of staff held management posts and stated that the school could not increase the number without also promoting more members of the NASUWT 'which they were clearly at pains to avoid'. The claimants' case therefore is that where all candidates were members of the NASUWT the respondents saw their choice as one limited to candidates who had clearly dissociated themselves from the NASUWT through opting not to be seen supporting the industrial action and candidates who had very publicly and openly supported the union and all its actions.

The tribunal heard evidence from the claimants and Mr McClean, Mr Magill, Mr McClelland and Mr Mason on their behalf. The tribunal heard evidence from Mr Cromie, Canon Irwin, Mrs Jones, Dr Malcolmson and Mrs McQuiston on behalf of the respondents. Having heard the evidence, and considered the documents referred to it, the tribunal found the following facts proved on a balance of probabilities:-

(3.1) Ms Debast was appointed a teacher at the school in 1989. Ms Flynn was appointed in 1992. Mrs Gray was employed as a teacher on a temporary full-time basis from 1999 and appointed in September 2002. Mrs Miskelly was appointed in 2002, and in September 2005, she had not completed her Early Professional Development (EPD) which is induction training for all teachers. Her training would have been completed in June 2006.

(3.2) The post of Head of the Modern Languages Department became vacant as a result of the retirement on ill-health grounds of Ms Madeleine Trimble. Ms Trimble gave formal notice of her retirement on 26 May 2005 with three months notice. Her retirement was therefore effective from 28 August 2005.

The alleged 'grooming of the successful candidates'

(3.3) The claimants alleged that the successful candidates' application forms confirm that they were afforded the opportunity of working closely with the Head of Department in the run-up to her retirement in August 2005 and also that the successful candidates had been given prior notice of Mrs Trimble's retirement. The successful candidates were thus familiarised with a number of duties normally seen as those of a Department Head. The claimants alleged that they were not afforded such an opportunity.

The tribunal is satisfied that there is no evidence that the successful candidates were given prior notice of Mrs Trimble's retirement. The tribunal is further satisfied, that a proper reading of the successful candidates' application forms does not justify the assertions made by the claimants. Mrs Gray's application form states that she had worked closely with the former Head of Department since 1999 – not just in the months leading to her retirement. Mrs Miskelly's application form states that the previous Head of Department gave her opportunities to develop schemes and units of work. In the tribunal's view there is nothing recorded in the application forms which suggests that the successful candidates were singled out by Mrs Trimble to advantage them in the selection process for her post. Furthermore the claimants did not suggest that in the small Modern Languages Department they did not have the opportunity to work closely with Mrs Trimble. In any event there is no evidence before the tribunal of Mrs Trimble's union affiliation or that she may have acted for the purpose of causing the claimants detriment on grounds related to union membership or union activities.

(3.4) The claimants alleged that the successful candidates were advised of, and afforded training in the areas of 'citizenship', 'information and communication technology development in languages' and 'assessment in modern languages'. They alleged that they had not been given the opportunity to attend this training.

The tribunal is satisfied that all members of staff were advised of the opportunity of undertaking training in citizenship in 2003, one year before the industrial action occurred and two years before the selection process for Head of the Modern Languages Department. The tribunal is further satisfied that Mrs Miskelly was selected by Mrs Trimble in June 2003 to attend SEELB training in ICT Development in Languages as part of her early professional development because she was studying the topic of 'the use of ICT in the classroom. Mrs Gray attended 'Assessment in Modern Languages' as part of induction training in 1999/2000. These training courses also took place prior to the industrial action and at a time when the retirement on ill-health grounds of Mrs Trimble could not have been anticipated.

(3.5) The claimants alleged that the successful candidates were deliberately given a GCSE class to teach in September 2005, five weeks prior to the interviews taking place to enable them to gain experience for the interviews.

The tribunal does not accept that allegation. The facts are that the GCSE class was due to be taught by Mrs Trimble. Following notice of her retirement in May 2005, the class was allocated to a temporary teacher in the Modern Languages Department, Ms Paula Cowan, by the members of staff responsible for timetabling. Mr McClelland was the Vice Principal responsible for timetabling, he was a member of the NASUWT and took part in the industrial action in 2004. The claimants had complained to Dr Malcolmson at the end of August 2005 that Ms Cowan was not suitable to teach the class because she had only been employed on a one year contract, the GCSE course runs over two years and also because they did not consider her to be sufficiently experienced. The class was subsequently removed from Ms Cowan and allocated to Mrs Gray and Mrs Miskelly. The tribunal accepts the unchallenged evidence of Dr Malcolmson that he had no part either in allocating the class originally to Ms Cowan, or in reallocating the class to the successful candidates. The tribunal accepts that this was a matter entirely within the authority of the timetablers.

(3.6) The claimants also alleged that the selection process for the new Head of Department was delayed from June until October to enable the successful candidates to gain experience in teaching a GCSE class. The tribunal does not accept that allegation. Mrs Trimble gave notice of her retirement on ill-health on 26 May 2005. Whilst it is correct that Dr Malcolmson could have dealt with the appointment process in June rather than in the new term, the evidence does not suggest that his motive in delaying the process for what amounted to six teaching weeks was improper. This is because at the time he decided that the process could wait, the GCSE class in question, which Mrs Trimble was due to teach had been allocated to the temporary teacher, Ms Cowan – not to the successful candidates. The weakness in the allegation lies in the fact that Dr Malcolmson had no part to play either in originally allocating the class to Ms Cowan nor in subsequently reallocating the class to the successful candidates.

(3.7) The claimants alleged that the successful candidates were given the task of inducting Paula Cowan, in the absence of Mrs Trimble, and that they were therefore given preferential treatment.

The tribunal does not accept this allegation. Neither successful candidate purports to have been given responsibility for the induction of Paula Cowan. It is clear from their application forms, that they voluntarily 'took Paula under their wing'. The tribunal accepts the unchallenged evidence of Dr Malcolmson that at no time was any member of staff instructed to carry out what is essentially a HOD function and ultimately the responsibility of Mr McReynolds in the school.

(3.8) The claimant alleged that the successful candidates were allocated responsibility for making requisitions in the absence of a Head of Department.

The tribunal accepts the unchallenged evidence of Dr Malcolmson that no member of staff was allocated that responsibility in the Modern Languages Department. There is nothing in the successful candidates' application forms to suggest that they were given this task and the tribunal accepts that the majority of the requisitions were made before Mrs Trimble's retirement. Furthermore, in the absence of a Head of Department any member of staff would have been permitted to make requisitions.

(3.9) The claimants alleged that the successful candidates were allocated to the classroom formerly used by the Head of Department, and thus a signal was sent out that they were the preferred candidates.

The tribunal accepts the unchallenged evidence of Dr Malcolmson that responsibility for the allocation of rooms lies with the timetablers and not the Principal. In any event, the decision to appoint the successful candidates was made by the Board of Governors, and there is no evidence they would have known which classroom any of the candidates had been allocated.

(3.10) The claimants alleged that the successful candidates had a meeting with the Principal prior to the interview process. The tribunal accepts that a meeting did take place and that the purpose of the meeting was to explain to Mrs Gray and Mrs Miskelly who were applying for the post as job-share partners, that their scores would be averaged after interview. There is no evidence of any impropriety on Dr Malcolmson's part.

The personnel specification

(3.11) The claimants alleged that they were disadvantaged in that they did not receive a copy of the personnel specification prior to the interviews taking place, and furthermore that the specification lacked the usual essential criteria for a Head of Department post thus enabling the less experienced successful candidates to be short listed.

(3.12) The tribunal is satisfied that none of the candidates received a copy of the personnel specification, although Dr Malcolmson had drawn up such a document. The tribunal is also satisfied that it was not Dr Malcolmson's practice to issue personnel specifications for internal trawls, however since proceedings were issued in this case he has issued personnel specifications for internal trawls. The Vice Principal, Mr McClelland, has always held the view that personnel specifications should be issued for internal trawls.

(3.13) The main thrust of the claimants' complaint however concerned the content of the personnel specification. The claimants compared the essential experience required for other Head of Department posts with the Head of Modern Languages Department post. In particular it was pointed out that:-

(i) Head of Senior College (temporary acting-up) required 'a minimum of four years experience as a year head/Head of Department' and 'experience of delivering many elements of the job description'.

(ii) Head of Science (temporary acting-up) required 'a minimum of four years experience in preparing and entering pupils for GCSE single award and double award science' and 'experience of delivering many elements of the job description'.

(iii) Head of Science (permanent) required 'a minimum of three years experience in preparing and entering pupils for GCSE science' and 'experience of delivering many elements of the job description'.

(iv) Head of History required 'a minimum of five years teaching experience' under essential qualifications.

(v) Head of Geography required 'experience in preparing and entering pupils for GCSE geography'.

(vi) Temporary Acting Head of Art required 'experience in preparing and entering pupils for GCSE art'.

(vii) Head of Art and Design required 'experience in preparing and entering pupils for examinations'.

(viii) Co-Ordinator of Duke of Edinburgh Award Scheme (Temporary, acting-up capacity) required that the candidate –

have taken part in the Duke of Edinburgh Award Scheme;

hold a Duke of Edinburgh Award;

minimum of two years experience in the Duke of Edinburgh Award Scheme as a leader;

experience of delivering many elements of the job description.

However in respect of the Head of Modern Languages Department post no essential experience was required for the post. The claimants alleged that essential experience was deliberately removed from the personnel specification in order to advantage Mrs Gray and Mrs Miskelly who did not have the experience normally required for such a post.

(3.14) Dr Malcolmson gave evidence that his approach to internal trawls had evolved through experience and his current view is that personnel specifications should enable as many internal candidates to apply as possible. Staff should be given career opportunities, and the Board of Governors could be relied upon at interview to determine the best candidate, taking into account experience and knowledge. The tribunal accepts his unchallenged evidence that in respect of the Head of Geography Department post, although there was an essential requirement of 'experience in preparing and entering pupils for GCSE geography', all teachers in the Geography Department could satisfy this criterion. Similarly, in respect of the temporary, Acting Head of Art post, the tribunal accepts Dr Malcolmson's unchallenged evidence that the essential qualifications were revised once Dr Malcolmson realised that one member of the Department would otherwise be excluded. The original essential qualification was a 'degree in Art or a degree in which Art has played a part'. That was revised to read 'a degree in Art or a degree in which art has played a part or a qualification in which art or an art-related subject has played a part'. This enabled all members of the Department to apply for the post.

(3.15) Dr Malcolmson told the tribunal that in line with his approach to the Head of Geography and Acting Head of Art he had deliberately drafted the personnel specification to allow all four members of the Modern Languages Department to apply for the Head of Department post. In his view, each candidate could demonstrate her relative experience at the interview. The tribunal heard evidence from Mr McClelland the Vice Principal on behalf of the claimants on this issue. Mr McClelland also agreed that personnel specifications for internal posts should be drafted widely so as to enable staff to have career opportunities. However, in his view it was essential that all eligible staff should have the experience to carry out the role, and he disagreed that a teacher who had not completed her EPD training (such as Mrs Miskelly) would be suitable for such a post as Head of Department.

(3.16) Dr Malcolmson accepted that he was aware that all four members of the Modern Languages Department were members of NASUWT, and that three of them had been involved in the industrial action in 2004, Mrs Gray having been on maternity leave. He also accepted that he was aware that the claimant, Ms Flynn, was married to Mr Bell, the teacher at the centre of the dispute. He denied however that he had any direct knowledge of which members of the union had taken part in the picket line.

(3.17) It is clear to the tribunal that there may be different views as to the appropriateness of drafting personnel specifications widely to enable all members of a Department to apply. In particular, views may vary according to the size of the Department to be managed and in this case the Modern Languages Department is a small Department consisting of only four permanent members of staff. However, that is not an issue for this tribunal. The issue for this tribunal is whether the claimants suffered a detriment for reasons related to trade union activity. There is simply no evidence that Dr Malcolmson drafted the personnel specification in this case in order to subject the claimants to a detriment for the sole or main purpose of preventing or deterring them from being members or taking part in the activities of the NASUWT or penalising them from doing so.

. The job share application

(3.18) The post was internally trawled in September 2005. Mrs Gray and Mrs Miskelly applied for the post on a job share basis. The 'Job Share Scheme for Teachers' is contained in Circular TNC 1998/1. The circular sets out the procedure which should be followed where an application is received from two teachers to undertake the duties of a post of responsibility:-

9.3 Stage 1 – Suitability of the Post

9.3.1 The Board of Governors should meet to determine if the post is:-

(i) able to be fully and effectively carried out within the available hours of one job share arrangement; and/or

(ii) suitable to be allocated on a proportional basis.

9.3.2 The Board of Governors should apply the principles outlined in Section 7.1 and 7.2 of the Notes of Guidance when arriving at a determination in relation to the above.

1 of the Notes of Guidance states:-

"7.1 When considering application(s) for job sharing the Board of Governors should give cognisance to the objectives of the Scheme and the advantages of job sharing as detailed in paragraph 3 of this document."

2 of the Notes of Guidance states:-

"7.2 When assessing the suitability of the post, consideration should be given to:-

(i) the needs of the school, eg how the duties and responsibilities of the post might be defined and divided; and the qualifications, experience, knowledge and skills required for the effective performance of the duties of the post;

(ii) the welfare and educational needs of the pupils."

There may also be other factors relevant to the circumstances of each case.

Having determined that the post is suitable for job sharing the Board of Governors will be required to give consideration to the needs of the prospective job sharer(s).

It is important that the decision in relation to the viability of a job sharing arrangement is based on objective measures which are able to be justified and defended.

(3.19) The Board of Governors did not meet to determine if the post of Head of the Modern Languages Department was suitable to be carried out on a job share basis.

The short listing process

(3.20) The 'Procedures for the Appointment and Promotion of Teachers in Controlled Schools' states at section 2 paragraph 3.2:-

"3.1 Where –

(a) responsibility point(s) become(s) available from allocations the Principal will consult with the Senior Management Team of the school and prepare a draft job description and personnel specification for submission to the Board of Governors for approval. The recommendation will reflect the school salary policy and agreed management structure."

At paragraph 3.3 the Procedures state:-

"3.3 The Board of Governors will carry out the short listing and the selection process in accordance with the procedure outlined in section 1, paragraphs 6 and 13 of the Procedures and will forward their recommendations to the Human Resources Unit for submission to the Teaching Appointments Committee for approval."

(3.21) The draft job description and personnel specification were not submitted to the Board of Governors for approval. Nor did the Board of Governors carry out the short listing process. The Principal, Dr Malcolmson, prepared the documents and carried out the short listing process.

The interview process

(3.22) The selection panel comprised Mr Colin Cromie, Canon Irwin and Mrs Hannah Jones all of whom were members of the Board of Governors. All three panel members gave unchallenged evidence that they did not know any of the candidates in advance of the interviews, did not know of any union affiliation which any candidate may have had, did not know what part, if any, each candidate had played in the industrial action one year earlier, nor did they have any knowledge of whether any of the candidates had taken part in the picket line. The members of the panel also gave unchallenged evidence that they did not know that Ms Flynn was married to Mr Bell the teacher at the centre of the dispute. On behalf of the claimants, Mr Bell did nothing other then show the panel members photographs of the picket line and ask whether they could identify the claimants.

(3.23) The questions asked at the interview were chosen by the selection panel from a list of questions prepared by the Principal, Dr Malcolmson. The focus of the five questions chosen by the panel was on maintaining and improving GCSE results and leading and managing the Modern Languages Department. The tribunal is satisfied that the questions ought to have advantaged the claimants since they had most experience of teaching GCSE classes and preparing and entering pupils for GCSE examinations. The tribunal also notes that two of the questions which the selection panel did not choose were of a much more general nature and could have benefited the less experienced successful candidates if there had been a motive to do so.

(3.24) Dr Malcolmson was in attendance at the interviews, but took no part in the decision-making process. In addition, Mrs McQuiston, Curriculum Adviser at the South Eastern Education & Library Board, was invited by Dr Malcolmson to attend the interviews. The tribunal is satisfied that it was not usual to have a Curriculum Adviser in attendance at promotion interviews. There was a conflict of evidence between Dr Malcolmson and Mrs McQuiston regarding the purpose of her attendance. Dr Malcolmson stated that he had invited Mrs McQuiston to attend because it was unusual to have job-share applicants for such a post. Mrs McQuiston stated that she understood the purpose of her attendance was to provide guidance and advice, if requested by the selection panel, regarding the revised curriculum, and the qualities necessary for a Head of Department in the Modern Languages Department. The tribunal accepts that she genuinely understood her role to be that of providing curriculum advice and acted accordingly during the interview process.

(3.25) All three members of the Board of Governors gave evidence that Mrs McQuiston offered guidance prior to the interviews but none of them took a note, nor could they recall the detail of the guidance.

The evidence of Mrs McQuiston

(3.26) Mrs McQuiston knew all of the candidates and had worked with them in the course of her duties as the South Eastern Board's Curriculum Adviser. The tribunal accepts Mrs McQuiston's unchallenged evidence that she was not aware that Ms Flynn was married to Mr Bell. The tribunal also accepts that she was not aware which teachers took part in the industrial action or stood on the picket line one year earlier. She herself had been a member of NASUWT as a young teacher. It is conceded that both claimants enjoyed a good working relationship with Mrs McQuiston prior to these interviews.

(3.27) The tribunal accepts Mrs McQuiston's evidence that at the meeting arranged to interview the candidates she provided the Board of Governors with an overview of the curriculum requirements for Modern Languages for Key Stage 3 with a focus on skill development and new areas of employability and citizenship, as well as ICT (Information Computer Technology). Mrs McQuiston also gave the panel an overview of Key Stage 4 and the requirement of schools to offer both academic and vocational options which would be new to some subjects. She explained that the panel should be looking for someone with a understanding of those requirements and who could lead, motivate and develop a team.

(3.28) Mrs McQuiston played no part in the decision-making process and was not party to the panel's deliberations. She was present for each interview, and took notes for her own benefit only.

(3.29) Mrs McQuiston gave evidence that she was disappointed with Ms Debast's performance at interview. She described how on occasions she did not answer parts of a question, and was not forthcoming in some of her answers. Mrs McQuiston did not consider that Ms Debast did herself justice.

(3.30) In respect of Ms Flynn, Mrs McQuiston described how parts of her answers were excellent but then another part of a question would not be answered. In respect of some answers however she considered Ms Flynn to be on an equal level with Mrs Gray.

(3.31) Mrs McQuiston explained that when a candidate had expanded on an answer she reflected this by placing a 'tick' beside the answer. In describing Mrs Miskelly's answers she stated how she had discussed GOMEL which is a qualification for less able children as a parallel qualification to GCSE. Mrs Gray had also discussed the piloting of a 'short' French course which is worth half a GCSE as part of the vocational route.

(3.32) Both claimants were critical of the successful candidates gaining credit for discussing vocational routes since, as they correctly pointed out, the questions asked focused entirely on GCSE results. However, these were clearly matters relevant to the post of Head of Department and which had been drawn to the panel's attention by Mrs McQuiston prior to the interviews. The claimants were also critical of credit being given for references to citizenship which Mrs Gray had made in view of the focus of the question. It is clear however from Mrs McQuiston's evidence that she had outlined to the panel in advance of the interviews the content of the revised curriculum, including the new requirement to teach citizenship. It is not surprising therefore that reference to citizenship in answers to questions would have been recorded by the panel. In effect, Mr Bell criticised Mrs McQuiston for explaining issues pertinent to the revised curriculum to the selection panel when the questions to be asked of the candidates focused on GCSE results. The tribunal does not accept that such criticism is justified in view of Mrs McQuiston's role as Curriculum Adviser.

(3.33) The claimants were also critical of credit given to Mrs Miskelly for discussing her previous management experience in Marks & Spencer because it was not in the context of teaching experience which was the focus of the question. Whilst the tribunal appreciates the claimants' sense of grievance, the reality is that the successful candidates took the opportunity to demonstrate the breadth of their knowledge and experience which related to the post, if not the questions asked at interview.

The evidence of the Board of Governors

(3.34) The Board of Governors awarded the successful candidates higher marks than the claimants and accordingly the successful candidates were offered the post on a job-share basis. All three members recorded notes of answers given to questions at the interview. However despite probing by counsel for the respondents to explain why the panel preferred the answers of the successful candidates the members of the panel were unable to recall specific details, Mr Cromie eventually conceded that he could only tell the tribunal that "on the night", the successful candidates "demonstrated that higher marks were justified". Mrs Jones emphasised repeatedly that the successful candidates' answers were "more complete" and "more comprehensive" but she could not be more specific. Canon Irwin also said that the successful candidates provided more information but very little detail was provided to explain his conclusions.

The grievance process

(3.35) Both claimants requested feedback on their individual performance at interview. Dr Malcolmson, having sought advice from Mr Mason at the S.E.E.L.B declined to give individual feedback. The tribunal considers that feedback is an essential part of self-development, and particularly where internal candidates have been unsuccessful it should be good practice to explain where performance has been found wanting to enable candidates to improve in the future.

(3.36) Subsequently, both claimants indicated their wish to pursue a grievance. Whilst the tribunal accepts that TNC 1998/4 may not be invoked for grievances relating to internal promotion of teachers, it is unfortunate that neither the S.E.E.L.B nor Dr Malcolmson recognised the need to find a mechanism for resolving this matter. It was not until the claimants' trade union representative raised the requirements of the statutory dispute resolution procedures that a grievance procedure was put in place. Furthermore, the tribunal considers that the delay in proceeding with the grievance process was unacceptable. Whilst there may have been difficulties in arranging a quorum of Governors, the tribunal does not consider that the grievance was dealt with in the expeditious manner to which the claimants were entitled.

The law

(4.1) Chapter II of the Employment Rights (Northern Ireland) Order 1996 deals with 'detriment on grounds related to union membership or activities'. Article 73 of the Employment Rights (Northern Ireland) Order 1996 as amended states:-

"73.—(1) A worker has the right not to ^,be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of—

(a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so,

(b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so,

(ba) preventing or deterring him from making use of trade union services at an appropriate time, or penalising him for doing so, or

(c) compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions.

(4.2) The tribunal accepts that the failure to promote is a detrimental omission for the purposes of the legislation (Gallagher v Department of Transport [1994] IRLR 23). The issue for the tribunal is whether the failure to promote either of the claimants to the post of Head of Department was done for the improper purpose set out in Article 73 above. The tribunal further accepts that the onus is on the employer to prove that the purpose was not an improper purpose.

The tribunal's conclusion

(5.1) In order to conclude that the failure to promote the claimants took place for the sole or main purpose of preventing or deterring them from being members of the NASUWT, taking part in the activities of the NASUWT or penalising them for doing so, the tribunal must be satisfied that the Board of Governors had knowledge of their union affiliation and in particular of their involvement in the picket line in 2004. There is simply no evidence that any member of the Board of Governors had such knowledge. All three members denied knowing any candidate's union affiliation, whether or not they had taken part in the picket line and the fact that Ms Flynn was married to Mr Bell. The mere fact that the claimants can produce statements of media coverage and photographs showing approximately 30 of the teachers taking part in the picket including the claimants is not evidence of knowledge at the time of the interviews. The tribunal is not permitted to speculate about this issue. It may only reach proper findings of facts based on evidence. These claims must therefore inevitably fail.

(5.2) Furthermore, all four candidates were members of the NASUWT, three of the four candidates had taken part in the industrial action whilst the fourth was on maternity leave at the relevant time. Although the tribunal accepts in principle that an employer may take action or fail to take action in order to deter or penalise specific members of a union, there is no evidence before the tribunal that either claimant was perceived as being more openly supportive of the NASUWT within the school than other teachers who were also members. The height of the evidence in relation to Ms Flynn is that she was Secretary at union meetings. There is no evidence in relation to Ms Debast. Approximately 30 of the 65 teachers in the school took part in the picket line, and it is not possible to ascertain the identity of all the teachers from the photographs of the picket provided to the tribunal. Although the tribunal accepts the claimants' evidence that Mrs Miskelly did not take part in the picket line, there is no evidence that the Board of Governors would have known that, or indeed would have known that Mrs Gray did not take part either.

(5.3) Although the tribunal was not impressed with the inability of the Board of Governors to recall their reasons for preferring the answers of the successful candidates, the tribunal was impressed with the evidence of Mrs McQuiston. The claimants conceded that they had enjoyed a good working relationship with Mrs McQuiston prior to these interviews, and there is no reason why the tribunal should not accept her evidence regarding the performance of each candidate as honest and credible. In short, the claimants did not perform as well as they might have been expected at interview.

(5.4) Mr Bell contended that the Burden of Proof Regulations applied to this case. However, the Regulations do not apply to a claim under Article 73 of the Employment Rights (Northern Ireland) Order 1996.

(5.5) The claims are therefore dismissed.

Vice President:

Date and place of hearing: 22 – 26 October 2007;

26 – 30 November 2007;

7 – 9 January 2008, Belfast

Date decision recorded in register and issued to parties: