Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 851/06

CLAIMANT: Jennifer Johnston

RESPONDENT: Royal Group of Hospitals and Dental Hospitals Health & Social Trust

DECISION

The unanimous decision of the tribunal is that:-

(1) The claimant was not discriminated against by the respondent on the ground of her disability, contrary to the Disability Discrimination Act 1995, as amended.

(2) The claimant was not discriminated against for a reason which related to the claimant's disability, contrary to the Disability Discrimination Act 1995, as amended.

(3) The claimant was discriminated against by the respondent by the failure of the respondent to comply with its duty to make reasonable adjustments imposed on it in relation to the claimant, contrary to the Disability Discrimination Act 1995, as amended.

(4) The tribunal orders the respondent to pay to the claimant the sum of £3,133.00.

Constitution of Tribunal:

Chairman: Mr N Drennan QC

Members: Mr J Lyttle

Mr J Nicholl

Appearances:

The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by Equality Commission for Northern Ireland.

The respondent was represented by January J Dunlop, Barrister-at-Law, instructed by MSC Daly, Solicitors.

Reasons

1.1     The claimant presented a claim form to the tribunal on 4 July 2006, in which she made a claim against the respondent of unlawful discrimination, pursuant to the Disability Discrimination Act 1995, as amended ('the 1995 Act'). The claimant also made a claim on the said claim form of unlawful discrimination pursuant to the 1995 Act against Queen's University Belfast ('the University'). The claim against the University was subsequently withdrawn by the claimant and, by a decision registered and issued to the parties on 23 January 2008, the claimant's claim against the University was dismissed, following the said withdrawal.

1.2     By a decision on a pre-hearing review, registered and issued to the parties on 15 August 2007, the tribunal found that the claimant, who suffers from dyslexia, was a disabled person within the meaning of Section 1 of the 1995 Act.

1.3     The claimant's claim, as set out in her claim form, related to her failure to be appointed by the respondent, following a recruitment and selection process, which took place in or about 2005/2006, for the post of a Paediatric Staff Nurse Grade D at the Royal Belfast Hospital for Sick Children, which hospital is part of the respondent. The respondent, in its response form, presented to the tribunal on 15 August 2006, denied liability and stated, inter alia, that the claimant's dyslexia had no bearing on the decision not to appoint her to the said post; but related to the contents of a reference, which had been received by the respondent, in relation to her application for the said post.

1.4     In relation to her said claim, the claimant made a number of claims under the 1995 Act, which may be summarised as follows:-

(a) a claim of disability-related discrimination;

(b) a claim of direct disability discrimination; and

(c) a claim of a failure to make reasonable adjustments.

It will be necessary to consider the relevant statutory provisions under the 1995 Act, relating to each said claim, in more detail elsewhere in this decision.

1.5     At the conclusion of the hearing of this matter, the tribunal reserved its decision. Before the tribunal could issue its said decision, the House of Lords gave its judgment in the case of London Borough of Lewisham v Malcolm [2008] IRLR 700, which shall be referred to later in this decision. This decision has had considerable implications for the law relating to disability discrimination; and, in particular, in relation to a claim of disability related discrimination. It was agreed by the representatives, at a Case Management Discussion with the Chairman, following the said judgment of the House of Lords, and in light of the submissions already made by the representatives, that the tribunal should, in the circumstances, not issue its said decision; but rather it should allow the representatives to consider the said decision of the House of Lords and the implications thereof for the claimant's claims against the respondent; and, before issuing its decision, the tribunal should give the representatives an opportunity to make further written and/or oral submissions to the tribunal in light of the said judgment – which opportunity both representatives subsequently exercised.

Following a further hearing in this matter to consider the judgment in London Borough of Lewisham v Malcolm, and before issuing its decision, the tribunal again became aware of the recent decision in the Employment Appeal Tribunal in the case of Eastern and Coastal Kent PCT v Grey [2009] IRLR 429 and also the recent decision of the Northern Ireland Court of Appeal in the case of SCA Packaging Ltd v Boyle [2009] IRLR 54. It was agreed by both representatives, at a Case Management Discussion with the Chairman, that these decisions were relevant to the tribunal's decision in this matter in relation to the claimant's claim of a failure to make reasonable adjustments and the issue of knowledge (to which further reference shall be made later in this decision); and that, having regard to the terms of the overriding objective, the tribunal should not issue its decision until both representatives had been given an opportunity to make further oral submissions, in light of the dicta set out in the said decisions – which opportunity both representatives subsequently exercised at a further hearing of the tribunal.

1.6     The tribunal heard oral evidence, on behalf of the claimant, from the claimant herself and Mr John Eakin, Chartered Educational Psychologist; and, on behalf of the respondent, from Alison Kearney, Barbara Carlisle, Brenda Creaney and Paula Forrest.

2.1     The tribunal having heard the said evidence and considered the written and oral submissions made to it by the representatives, made the following findings of fact, as set out in the following sub-paragraphs, insofar as relevant and material to the determination by the tribunal of the claimant's said claims under the 1995 Act.

2.2     The claimant was born on 4 July 1980 and, as set out above, suffers from dyslexia, which had been found in a decision on a pre-hearing review registered and issued to the parties on 15 August 2007 to be a disability within the meaning of Section 1 of the 1995 Act. Thus, for the purposes of these proceedings, the claimant was, at all material times, a disabled person. After her 'A' Levels the claimant began a course in nursing at Canterbury University College; but, in September 2003, she transferred to Queen's University Belfast ('the University') to study for a qualification in children's nursing, joining the course in the second year. At that time, she was in contact with the disability services of the University and, after assessment by the said services, was given support with her studies in relation to her dyslexia. Her University tutors were made aware of her dyslexia and measures were put in place to help her meet her academic requirements. In addition, as part of her course, she was required to take part in practical placements, as part of her training, at various medical establishments in Northern Ireland. The claimant's dyslexia did not cause her any particular difficulty on any such placement until her final placement, which took place at Altnagelvin Hospital, Londonderry, in or about May 2005. At that final placement, issues were raised by her mentor, a nurse at the said hospital, with regard to her handwriting under pressure. Having informed her mentor of her dyslexia, the claimant was given further time to carry out any writing that she was required to do in the course of her work on the said placement. A further issue was raised during her said placement, in or about June 2005, regarding the documentation of time on an observation chart by the claimant; and, as a consequence, Ms Orla McAlinden, the claimant's link lecturer at the University, was so informed. The final clinical assessment of the claimant was postponed to allow the above issues, raised by the staff at Altnagelvin Hospital, to be addressed in conjunction with the University. As a consequence, the claimant, at her final clinical assessment, was required to exhibit her competencies in relation to spelling, drug chart reading, dose calculation and to demonstrate an ability to write clearly. The claimant was found to be competent at the conclusion of this final assessment. In September 2005, the claimant submitted the final written component of her studies and received a 'R' grade, which required her to re-submit some of this work. At a meeting with Ms McAlinden, she was told her problems lay with the presentation of her said work. Following re-submission of her work, the claimant was awarded a 'pass' mark in November 2005; and she subsequently graduated with a diploma in nursing science and thereafter obtained her registration as a nurse.

2.3     Mr Eakin, who is a Chartered Educational Psychologist, with experience in giving advice to those engaged in the training and employment of nurses, recognised, in his evidence to the tribunal, that there have been concerns/anxieties raised about potential risks to patient's safety arising from nurses with dyslexia; and, in particular, concerns and anxieties raised about misreading of prescriptions or drug names, miscalculating drug doses (eg in paediatric wards) and of nurses making errors in notes or on charts. He himself, however, was not aware, in his experience, of any basis for these anxieties/concerns. He made clear that, in his opinion, it was essential that, if dyslexia was diagnosed, which in essence is an impairment of language, mostly in written language, that such diagnosis is disclosed to line management and colleagues; and that, as a consequence, a system of monitoring and checking procedures is drawn up and implemented. He also referred, in evidence, to possible adjustments that could be made to such a nurse's ward placement/allocation of duties to avoid pressurised time-limit conditions; but he was of the opinion that each case would require to be considered on its own merits and having regard to any particular difficulty, if any, encountered. He accepted that, if the claimant was successful in an application for a position as a nurse, it would be prudent for any employer of the claimant, in such circumstances, to arrange to have closer than usual monitoring and supervision of the claimant's work during her first few months in post, so that the nature and extent of any required adjustments could be determined and any risk of harm, no matter how small, removed.

2.4     The claimant applied for the position of Staff Nurse Grade D in the Royal Belfast Hospital for Sick Children on or about 10 May 2005. In the application form she stated, inter alia, she did not have a disability and did not require any special arrangements to be made for her to attend her interview. She also did not disclose her dyslexia in the Equal Opportunities Monitoring Form, attached to the application form. At the time of writing the application form and the Equal Opportunities Monitoring Form, in or about early May 2005, she had not encountered the difficulties, referred to previously, which she had subsequently encountered in Altnagelvin Hospital in her final placement. She therefore did not consider her dyslexia relevant, as it had not been a problem on any of her placements prior to that date. In addition, she did not require any particular assistance at the interview arising from her dyslexia. She also named on her application form two referees, namely Ms Orla McAlinden; and Ms Gilli Lewis; who were nurse lecturers at the University.

2.5     The claimant was subsequently short listed and an interview was arranged for 20 July 2005. However, the claimant did not attend for interview on that date, as she had been delayed, as indicated above, in completing her University course. In the meantime, despite the above, letters had been sent out dated 10 August 2005, by the respondent, to the claimant's two referees. Ms Lewis declined to write a reference, as she did not personally know the claimant and the claimant had not asked her to provide such a reference. Ms McAlinden, who personally knew the claimant as one of her teachers on her course, completed a reference for the claimant on or about 8 August 2005, indicating the claimant's course was due to finish in or about September 2005. The reference was provided on a proforma, which stated, inter alia, under the categories, set out below, 'excellent/good/satisfactory/fair/poor':-

"4.1 Ability to use initiative – satisfactory.

4.2 Co-operation with others – good.

4.3 Dependability – satisfactory.

4.4 Attitude towards work – satisfactory.

4.5 Quality of performance – satisfactory.

… ."

In addition, she answered the following questions, as set out below:-

"6 Do you have reason to believe he/she would not be suitable for the position? – Yes/No [ie – she did not answer by circling either Yes or No]

7 Have you any other comments to make? Declared dyslexia problem. This caused concern in Year 3 – final management assessment – and passed re-sit (issues around spelling, legibility, clarity, safe effective communication, writing skills)."

2.6     It would seem that, following the refusal of Ms Lewis to provide a reference, Ms McAlinden provided a further reference dated 15 September 2005 - at a time when the claimant's course, by then, was due to conclude. It was in similar terms to the previous reference save that in Paragraph 4.1 (ability to use initiative), Ms McAlinden stated 'good' (previously satisfactory) and in Paragraph 4.2 ('co-operation with others'), she stated this was 'satisfactory' (previously good).

In Paragraph 6, again, she did not answer either Yes or No.

In Paragraph 7 she stated:-

"Clinically okay but has dyslexia. Failed clinical summative assessment first attempt, passed this on second attempt (issue re dyslexia) referred on final submission of written portfolio and to re-submit this written work before pass grade can be given."

This paragraph was starred/asterisked; and there was also an entry at the bottom of the form, which stated:- 'employer you would need to consider how Jennifer's needs can be supported in clinical practice'.

2.7     The claimant's application form, although she did not attend for interview, was then held by the Human Resources Department of the respondent in an 'open file', together with both references received from Ms McAlinden.

In July 2005, there were some 20/30 nurses to be interviewed. However, due to a shortage of suitable paediatric nurses, the respondent kept an 'open file', so any person could apply at any time and it was not necessary to respond to a particular advertisement. Indeed, the claimant had initially applied following an Open Day. The tribunal was informed, which was not disputed, that there was considerable difficulty in recruitment for such nursing staff at the Royal Belfast Hospital for Sick Children. Given the continuing shortage of such nurses, following the July interviews, it was agreed, by the respondent, that those who had been previously short listed (but who had not attended the interviews), would be subsequently invited to a further interview, when the respondent next carried out interviews for such a post, and without the necessity to be again the subject of the short listing process.

Any 'new' applications for the post were also placed in the said 'open file'; but such 'new' applicants for the post were the subject of a short listing process, before any invitation for interview. The claimant, having previously been short listed, was not therefore required to be the subject of this short listing process. By letter dated 2 December 2005, the claimant was invited to an interview for the post of Staff Nurse D at the said hospital to be held on 16 December 2005.

2.8     Following the said interview, on 16 December 2005, which she attended, the claimant was sent a letter by Barbara Moneypenny, Acting Nurse Manager, which stated, inter alia:-

"I am pleased to offer you the position, pending satisfactory medical examination, vetting and references."

As became clear, during the course of this hearing, an issue subsequently arose in relation to the claimant's references. It was not disputed that the claimant was able to satisfy the condition in relation to 'occupational health requirements', following medical examination; and similarly no issue arose in relation to her vetting (PECS check) or in relation to her registration as a nurse.

2.9     By letter dated 2 February 2006, the claimant was informed by the respondent, following the said interview, the respondent was unable to offer her a place immediately and that her name had been placed on a waiting list, subject to health references and a health assessment. She was also informed the waiting list would expire on 16 September 2006; and, if she was not offered an appointment during that time, she would have to re-apply in response to any future advertisement.

2.10     There were two further references obtained by the respondent. These appeared to have been sought by the respondent, following the said successful interview of the claimant held on 16 December 2005.

2.11     Ms McAlinden provided a further reference dated 4 January 2006. In this reference, in Paragraphs 4.1 to 4.4 she stated 'good' against each said criteria; whereas previously in her reference, dated 15 September 2005, she had only done so in relation to Paragraph 4.1 (ability to use initiative). In Paragraph 4.5 (quality of performance) this remained as 'satisfactory'.

However, in Paragraph 6, which has to be contrasted with her earlier references, she circled 'No', in answer to the question 'do you have any reason to believe that he/she would not be suitable for that position?' In Paragraph 7, she stated in answer to the question - 'have you any other comments to make?' (with a, star/asterisk) "please see attached details for background information"'. The tribunal concluded that the attached details referred to were contained in a document, which stated, inter alia:-

"For use with standard reference form.

Jennifer received support from Disability Services and Occupational Health during her course. At the point of completion of the course she had met the NMC competencies for first level registration as a children's nurse. Jennifer failed the module 310 NUS 222 Branch practice Two but was successful at the second attempt."

This document was signed by Ms McAlinden on 11 January 2006 and received by the respondent on 16 January 2006. In the judgment of the tribunal, this said document, if not actually attached to the reference dated 4 January 2006, was subsequently sent by Ms McAlinden, to be attached, as indicated, to the reference. This reference was written by Ms McAlinden, after the claimant had finished her course. In contrast, her earlier references were written when she was still involved in her course, where she had, as seen previously, difficulties arising from her dyslexia.

2.12     The further reference obtained by the respondent was a reference from Ms Heather McKee, Teaching Fellow/Course Director at the University, dated 8 March 2006. Someone, not the referee herself, has stated on the front of the reference that this is an academic reference. Ms McKee indicated that she had known the claimant for approximately two years, having acted as the claimant's course director during the child branch programme. The claimant herself appears to have had little or no personal contact with Ms McKee during her time at the University, in contrast to Ms McAlinden, who clearly had considerable contact, as one of the claimant's lecturers on her course.

In relation to the criteria in Paragraphs 4.1 to 4.5, Ms McKee assessed the claimant as 'satisfactory' in relation to 'ability to use initiative' (4.1); 'dependability' (4.3); and 'quality of performance' (4.5).

But, significantly, in the context of these proceedings, Ms McKee assessed the criteria, 'co-operation with others' (4.2) and 'attitude towards work' (4.4) as 'fair'. Further, the tribunal noted that Mr Eakin, but also the claimant herself, accepted in evidence that, in relation to these two criteria, namely 'co-operation with others' and 'attitude towards work', neither considered her dyslexia would have affected her ability to comply with such criteria.

However, in addition, in answer to the question at Paragraph 6 – 'do you have any reason to believe that he/she would not be suitable for the position?, Ms McKee circled 'Yes', with an asterisk, stating 'further details can be obtained by contacting Mary McCartney at QUB'.

There was no dispute that Mary McCartney was a Disability Officer at the University and, in particular, in the School of Nursing and Midwifery, who looked after disabled students in the said school; and who, in that role, had had contact with the claimant, in relation to her dyslexia, while she studied at the University, as indicated previously. Ms McCartney was not called to give evidence by either party to the tribunal.

Further, in answer to the question at Paragraph 7 – 'have you any other comments to make?' Ms McKee stated:-

"Received support from Disability Services and Occupational Health during her course. Has met the NMC competencies for admission to the register."

2.13     In a subsequent letter, dated 21 June 2006, Mrs M Moutray, Associate Head of School Director of Education (Nursing) at the University informed the respondent that Ms McKee, when giving the above reference, had stated, in error, 'Yes' in answer to the question at Paragraph 6 on the reference form; and, in particular, that the correct answer should have been 'No' to the question at Paragraph 6 - 'do you have reason to believe that he/she would not be suitable for the position?'. The letter was in the form of an apology, and there was no reason given for how or in what circumstances this said error had been made; but Ms Moutray had explained, in an earlier conversation with Brenda Creaney, Directorate Manager/Principal Nurse at the hospital, Ms McKee had misread the question. This was not confirmed in the said letter, as promised at the time of the conversation.

2.14     The tribunal had some initial concern how Ms McKee had come to provide the said reference; but it concluded it had been sought by the respondent, after it was realised by the respondent, following the interview in December 2005, that another referee was required, other than Ms McAlinden, given the earlier refusal by Ms Lewis to provide a reference. As stated previously, Ms Lewis had been the other referee referred to by the claimant in her original application form. The tribunal concluded that this further reference from Mrs McKee was obtained by the respondent, with the assistance of the University, in the circumstances set out below, given Ms McKee's position in the University and her said involvement in the claimant's course, following Ms Lewis' previous refusal to provide a reference. The tribunal was also satisfied that the claimant herself had not sought, in the circumstances, such a reference from Ms McKee.

After Ms Lewis refused to provide a reference, the claimant was informed by a member of the Human Resources Department of Ms Lewis' refusal and the claimant then nominated Barbara Carlisle, Ward Sister in Children's Haematology at the Royal Belfast Hospital for Sick Children. Unfortunately, she too refused to give a reference as she had no knowledge of the claimant's current practice. Ms Moneypenny, Lead Nurse for Inpatient and Ambulatory Paediatrics, then took upon herself to approach the University, who identified Ms McKee, the claimant's course director; and, as a result, Ms McKee then subsequently agreed to provide the reference dated March 2006, as referred to previously.

The tribunal was further satisfied that, under the respondent's recruitment and selection procedures, the respondent required to obtain a reference from more than one referee; and that, under the said procedures, references were used to provide two types of information. Firstly, they were used to confirm information provided by an applicant (on the initial application form or at an interview), and, secondly, to obtain information on an applicant's previous work performance, or perceived ability to carry out the job. Given that the claimant at the relevant time was a student completing her course, albeit with various placements, the tribunal could understand that it was difficult for the claimant to obtain a further reference, as she was asked to do by the respondent. The claimant therefore did not have any 'previous employer' who could provide such a reference and, in those circumstances, the tribunal could see how the respondent came, in the circumstances set out above, to ask the University to provide the reference from Ms McKee, given her responsibility for the claimant's course at the University.

2.15     As stated previously, the claimant was called for interview by the respondent on 16 December 2005. The members of the interview panel were:-

Alison Kearney (Chair of the interview panel);

Paula Forrest; and

Barbara Carlisle

Ms Forrest had previously been Chair of the interview panel, which had met in July 2005; but which interview the claimant had not attended.

2.16     The tribunal was satisfied, as indicated previously, that, before the said interviews in December 2005, the claimant's application form together with Ms McAlinden's August and September 2005 references, were kept in an 'open file' held by the Human Resources Department of the respondent. This department was responsible for making the relevant arrangements for interviews and, in particular, the provision of relevant documentation for use by the members of an interview panel. Despite the foregoing, the respondent did not call anyone to give evidence from the Human Resources Department. The tribunal was prepared to accept, as stated in evidence by the members of the interview panel, that no one from the Human Resources Department, prior to the interview, spoke to the members of the interview panel about the claimant and, in particular, the entries in Ms McAlinden's August and September 2005 references, which referred to the claimant's dyslexia. However, the tribunal is satisfied, given that the claimant's application form had been retained, following the July 2005 interview, and kept in the said 'open file', together with Ms McAlinden's August and September 2005 references, that the Human Resources Department of the respondent, by reason of their said custody of the said documents, prior to the interview in December 2005, therefore had knowledge of the claimant's dyslexia, as referred to by Ms McAlinden in her said references.

2.17     All the members of the interview panel in December 2005 were experienced nurses, with considerable experience and training in the recruitment and selection of nursing staff, using the respondent's recruitment and selection procedures. Unfortunately, the tribunal found the evidence given by the members of the interview panel less than satisfactory and at times contradictory, in relation to what documents, in particular the references received by the respondent during the course of this process, were provided to them by the Human Resources Department and/or were examined by them during the course of this selection process and/or at what stage they did so.

2.18     In light of the foregoing, the tribunal had particular regard to the terms of the respondent's recruitment and selection policy and procedure.

The respondent's policy was to provide employment equality for all, irrespective of disability, and that the procedure was required to be read in conjunction with, inter alia, the document Recruitment and Selection of People with a Disability – a Guide to Best Practice.

The tribunal also noted, in particular, that, for short listing, the file is collected from the Personnel Directorate (ie the Human Resources Department) and after short listing is returned to the Personnel Directorate. Following short listing and notification of the interview date, the Chairperson of the panel is required to arrange collection of the job file from the Personnel Directorate prior to interview and to return the file to the Personnel Directorate after interview. This confirmed, in the judgement of the tribunal, that, prior to the interview, the claimant's application form and the references obtained from Ms McAlinden in August/September 2005 had been, at all material times, in the custody of the Human Resources Department and, in particular, in the 'open file' retained for this particular recruitment exercise. In light of the fact that the Chairperson of the interview panel was required to collect the relevant job file from the Personnel Directorate, it was necessary for the tribunal to have particular regard to what the Chairperson of the panel was given for the purposes of the interview, when she went to collect the relevant documents; and, in particular, whether or not the August and September 2005 references were contained in the file given by the Human Resources Department to the Chairperson of the interview panel, Ms Kearney, prior to the said interview. As indicated above, the references were contained within the 'open file' kept by the Human Resources Department.

In this context, the tribunal also noted that the procedures, with reference to retention of records, provided that the Personnel Directorate would retain all records, application forms, referee's report and all other papers including panel member's notes and assessments relating to recruitment for at least 12 months. This again supported the tribunal's conclusion that the August and September 2005 references were retained in the 'open file' by the Human Resources Department.

2.19     At the conclusion of the interview, the interview panel concluded, as set out in the letter of 16 December 2005, that the claimant had carried out a successful interview and, subject to the conditions set out in the said letter, should be offered the post. References following the said interview were again sought by the University from Ms McAlinden; but on this occasion also from Ms McKee, in the circumstances referred to above. There was no suggestion, before the tribunal, that the claimant's dyslexia affected her performance at the interview; and, indeed, there was no evidence that the issue of dyslexia was raised during the course of the interview with the claimant by either the claimant herself or any member of the panel.

As seen above, the reference from Ms McKee was not provided until 8 March 2006, with the consequence that the interview panel were not in a position to consider the said references until in or about March 2006. The respondent's procedures provided that referee reports should not be considered until all interviews had been completed, but also that only references, relevant to the potentially successful candidate, should be discussed. Further, the procedures provided no offer of appointment could be made until the panel were in receipt of two 'satisfactory' reference reports [tribunal's emphasis].

2.20     The claimant, as set out above, satisfied the conditions, set out in the letter of offer, relating to the necessity for a satisfactory medical examination, vetting and also confirmation of registration as a nurse. The tribunal was further prepared to accept that, in reaching its decision at the interview on 16 December 2005 to offer the claimant the post, subject to the said conditions, that the interview panel had not considered or read any references at that stage. Firstly, the letter of 16 December 2005 had referred to the condition of obtaining satisfactory references; but secondly, the procedures provided, as set out above, for the referee reports not to be considered until all interviews had been completed. However, in reaching that conclusion, the tribunal remained, in the absence of any evidence from the Human Resources Department, unclear whether the August and September 2005 references from Ms McAlinden had in fact been included in the papers given by the Human Resources Department to Ms Kearney, as the Chairperson of the interview panel, for use at that interview. Ms Kearney was unclear, in her evidence as were the other members of the interview panel, about whether the said references had been included; though all were firm, in their evidence, the references were not discussed or considered at the time of the interview. Even if they had been included in the papers, the tribunal came to the conclusion they were not considered or examined by the panel at the time of the interview. It so concluded because their decision to offer the claimant the post had been subject to the said conditions including provision of satisfactory references. Even if they had been included in the papers given by the Human Resources Department to the panel, and had not been considered or examined, at the time of the interview, the references still were required to be returned by the Chairperson of the panel, with all other interview papers, to the custody of the Human Resources Department, pending the further meeting of the panel to discuss the references received in relation to the claimant. The further meeting of the panel, to consider the references, took place in or about March 2006, following receipt of the reference from Ms McKee.

The letter of offer had been subject to receipt of satisfactory references. The application form sought the names of two referees and the respondent's procedures, as previously stated, made clear 'no letter of appointment is made until the panel are in receipt of two satisfactory reference reports'. Thus, it would have been normal for the panel to expect that, at any such meeting, arranged to discuss references, the panel would only have been required to consider two references, which would have been sought after the interview. There is no doubt two such references were sought after the interview, namely the reference from Ms McKee given on 8 March 2006 and the further reference from Ms McAlinden, dated 4 January 2006. However, the procedure in this particular matter, as indicated previously, was somewhat unusual as references had already been sought, in relation to the claimant, following the earlier short listing and her earlier non-attendance for interview in July 2005. This had resulted in the Human Resources Department holding the two further references received from Ms McAlinden in August and September 2005. Despite her non-attendance at the interview, the claimant's application, and these references from Mrs McAlinden in August and September 2005 had been retained and kept in the 'open file' by the Human Resources Department.

2.21     It was therefore necessary for the tribunal, as set out below, to consider whether the two references from Ms McAlinden in August and September 2005 were also before the interview panel at its meeting to discuss references in March 2006.

Other than what was provided in the respondent's procedures, referred to above, and the terms of the proforma itself and covering letter sent to each referee, there was no guidance given to the interview panel how to evaluate any references which had been received. There was no guidance given how to evaluate between an assessment of 'excellent/good/satisfactory/fair/poor' given in relation to any of the said criteria and/or any answers given to the questions set out in the said form. In essence, in the absence of any such guidance, the task of how to evaluate the references and whether they could be considered as "satisfactory references", (tribunal's emphasis,) to satisfy any condition of appointment, was left to the judgment of the members of the interview panel. For example, there was no system suggested of 'weighting' between the various criteria.

2.22     The tribunal concluded that, at the meeting in March 2006, the reference provided by Ms McKee dated 8 March 2006 and the reference provided by Ms McAlinden dated 4 January 2006, including the attachment signed by her on 11 January 2006, were physically before the interview panel at that meeting; together with the earlier references provided by Ms McAlinden in August and September 2005.

All the members of the interview panel were unclear in their evidence in relation to what took place at this meeting and, in particular, what references were before them. However, in essence, their evidence in relation to those issues can be summarised to the effect that – either they had not seen and/or could not recollect seeing the references given by Ms McAlinden in August and September 2005 and that their consideration of references related solely to the reference given by Ms McKee and the reference given by Ms McAlinden in January 2006. As indicated previously, there was no relevant note or memorandum of what had taken place at the meeting. No evidence was given by any member of the Human Resources Department of what was given to Ms Kearney, for the purposes of her further meeting with the panel to consider references.

However, the tribunal concluded, on the evidence before it, that all four references, both 2005 and 2006 references, were held in the Human Resources Department in March 2006 (the time of the meeting) and would have been part of this 'open file', insofar as it related to the claimant's application for the said post. There was no specific evidence given how the Human Resources Department organised this 'open file'; but the tribunal assumed, in the absence of any other evidence, that all documents relevant to the claimant's application, including all references received in connection with that application, would have been filed under the claimant's name in that said 'open file'. Further, in the absence of any other evidence from the Human Resources Department to confirm that the earlier 2005 references were not excluded when the relevant file was given to Ms Kearney for the meeting in March 2006, and if excluded for what reason, the tribunal came to the conclusion, not without some hesitation, that all four said references were provided by the Human Resources Department to the interview panel at its meeting in March 2006. No evidence was given to the tribunal that members of staff in the Human Resources Department, before sending papers to an interview panel to consider references, following an offer of a job subject to references, would look at the file to be sent to the interview panel and exclude all material which they considered not to be relevant to the decision, to be taken by the panel; such as earlier references received from the same person, after an interview which had not taken place and/or where no job offer had been made.

The tribunal was further confirmed in its finding that all four references were provided to the panel, by what occurred at the said meeting in March 2006 and, in particular, thereafter. In accordance with the normal practice of the respondent at that time, each panel member was not provided with individual copies of what had been provided to Ms Kearney by the Human Resources Department. Each, in turn, had to read the file so provided. At the said meeting, the interview panel decided that the claimant had not satisfied the condition in relation to the provision of two satisfactory references. As a result, the claimant was so informed in a telephone call by Ms Kearney on or about 10 April 2006. The claimant subsequently applied to the Human Resources Department for access to the references that resulted in her non-selection for the post. She obtained access on 16 May 2006 and the Human Resources Department produced to her, from her file, four references, namely the 2005 and 2006 references. This again clearly indicated that, at all material times, the Human Resources Department held together, in a specific file relating to the claimant, all the references relating to the claimant's application; and further all four references were therefore likely to have been provided to the interview panel for their meeting in March 2006 and returned thereafter, following the meeting, to the custody of the Human Resources Department. If the earlier references had been separated in any way, during the course of this process, for example as not relevant, the tribunal concluded that this would have been noted and a record kept on the file and the claimant so advised when she sought access. There was no such evidence given of such separation.

2.23     The claimant, having had sight of the four references, in a letter dated 25 May 2006 raised queries about the decision not to select her for the post because of unsatisfactory references; and, in essence, she sought feedback in relation to the process and, in particular, in relation to the references which had resulted in her failure to be selected for the post, to which further reference shall be made later in this decision.

2.24     The tribunal, having concluded that the four references (ie including the August and September 2005 references by Ms McAlinden) were in the file given to Ms Kearney by the Human Resources Department, for the use of the interview panel, when they met to consider the claimant's references in March 2006; it was also satisfied they were therefore physically available to them to read at the time of the meeting. Given the absence of individual copies of the file for each member of the panel, the tribunal could understand that, at such a meeting, the panel might have concentrated on what appeared to them to be relevant and/or had not noticed or regarded any other documents in the file. The lack of individual copies, at the time of the meeting, may also have been a factor in the unsatisfactory nature of the recollection of the panel members of what took place at this meeting, as indicated above.

The tribunal, not without some hesitation, came to the conclusion that the members of the interview panel, despite the fact that the earlier references in August and September 2005 from Ms McAlinden were contained in the file, which they had the opportunity to read at the meeting, did not in fact read or have any regard to them. All were firm in their evidence to the tribunal, despite other uncertainties, that they had not done so and had either not seen them and/or had no recollection of seeing them. In addition, given that the interviews were in December 2005 and the reference from Ms McAlinden was obtained in January 2006 and from Ms McKee in March 2006, following that interview, the tribunal could accept that any concentration by them was on those later references, in the file supplied to them. Those references had been obtained in the normal way under the procedures, following that interview; and the tribunal, in the above circumstances, was prepared to accept they had read and/or had not looked at any other references contained in the file. Under the procedures, there required to be satisfactory references from two persons. Clearly there were two references, as required before the panel - one from Ms McKee and a (2006) reference from Ms McAlinden. Both these references had been recently obtained in the normal way, following the recent interview, which had resulted in the offer of a post, subject to satisfactory references.

2.25     The tribunal further concluded, in light of the evidence of the members of the interview panel, that each member, at all times, considered Ms McAlinden's reference in January 2006 to be a satisfactory reference; and their real and only concern at their meeting in March 2006 was the reference given by Ms McKee. The tribunal could understand that the interview panel, in such circumstances, would have had no reason to look beyond Ms McAlinden's January 2006 reference; since the panel, at all times, considered it was satisfactory. It must be noted this 2006 reference was written after the claimant had completed her course – whereas the 2005 references were written when she had had the specific difficulties referred to previously, arising from her dyslexia. In such circumstances, it was not surprising Ms McAlinden's January 2006 reference, which was relied on by the interview panel, was in fact the most impressive of all the references given by her (Paragraphs 4.1 to 4.4 was assessed by Ms McAlinden as 'good'; only Paragraph 4.5 was assessed as 'satisfactory'). Further, she had expressly answered Paragraph 6 and stated that she did not have any reason to believe the claimant was not suitable for the position. The attached details, which form part of the reference, made clear she had received support from Disability Services; albeit, unlike the earlier references, Ms McAlinden had not expressly referred to the claimant's dyslexia. The attached details, including the reference to Disability Services, were seen and read by the members of the panel; but were not considered of any relevance to their decision and which required them to alter their conclusion the reference was satisfactory.

The tribunal was therefore satisfied that the panel, having looked at the January 2006 reference from Ms McAlinden and noted the above scores and the express answer given to Paragraph 6, it did not consider it further; and, as stated above, did not look behind it and, in particular, did not look at/read any of the other references given by Ms McAlinden; albeit they were on the file. Indeed, the tribunal suspected that the panel's study of Ms McAlinden's 2006 reference was somewhat perfunctory, given its satisfactory contents; and that the meeting was largely devoted to consideration of the reference from Ms McKee of March 2006 – in view of the fact that, in order for the claimant to be selected for the post, there had to be satisfactory references from two different people.

2.26     For the reasons set out above, the tribunal did not find the interview panel considered, at the March 2006 meeting, the earlier references of Ms McAlinden of August and September 2005. Although, as indicated previously, there were some minor differences in the assessments given, in each reference, in relation to Paragraphs 4.1 and 4.5, these were minor. In both references the assessments remained as satisfactory or above. In light of their consideration of the January 2006 reference, the tribunal were of the opinion, even if the panel had taken them into account, the panel would have considered those references satisfactory.

2.27     It was not disputed by the respondent that the Human Resources Department at no time, prior to the interview in December 2005 or at the meeting to consider references in March 2006, informed or made known to the members of the interview panel that the claimant was dyslexic.

2.28     It was accepted by the tribunal, as indicated previously, at the meeting in March 2006, the members of the panel concentrated on the reference given by Ms McKee, having clearly considered that Ms McAlinden's January 2006 reference was satisfactory and did not require to be considered in any further detail. It further accepted, in the absence of any dispute between the members of the interview panel, they each had concluded that Ms McKee had not provided a satisfactory reference; and that, in the absence therefore of two satisfactory references, the claimant had not satisfied the conditions set out in the letter of offer; and therefore could not be appointed to the post. She was therefore, as indicated previously, so informed by the telephone call in April 2006.

The tribunal was further satisfied that the interview panel accepted that Ms McKee's assessment of satisfactory in respect of Paragraph 4.1 ('ability to use initiative'); 4.3 ('dependability'); and 4.5 ('quality performance') were sufficient, for the purposes of assessing whether a satisfactory reference had been provided; and the crucial issue, for the members of the interview panel in determining whether the reference was satisfactory or not, related, in particular, to Ms McKee's assessment of 'fair' in respect of Paragraphs 4.2 ('co-operation with others'), and Paragraph 4.4 ('attitude towards work') and also her answers to the questions in Paragraphs 6 and 7. In Paragraph 6 she had stated in answer to the question – 'do you have any reason to believe that he/she would not be suitable for the position?' – she had circled 'Yes' and provided an asterisk/star stating 'further details can be obtained by contacting by Mary McCartney in QUB'. In Paragraph 7, in answer to the question 'have you any other comments to make?' she had stated 'Received support from Disability Services and Occupational Health during her course. Has met the NMC competencies for admission to the register.'

2.29     The interview panel did not contact Mary McCartney, the Disabilities Officer for Queen's University Belfast. Her said role at QUB was not known to any member of the interview panel at that time or that she had been involved in the support given to the claimant by Disability Services, which was referred to in Paragraph 7 of Ms McKee's reference. The panel did not seek any further clarification from Ms McKee about the contents of her reference. It was further not known, at the time of the meeting and the making of the said decision, that Ms McKee, in answering Paragraph 6 of the reference form, had answered, in error, 'Yes' rather than 'No' (see Paragraph 2.13 of this decision).

2.30     The tribunal, however, had some difficulty in concluding upon what basis the members of the interview panel had determined Ms McKee's reference was not satisfactory. It was apparent, in the absence of any memoranda/documentation written at the time of the meeting and given the period of time that had elapsed since, that the members of the interview panel had some difficulty in recalling, in evidence to the tribunal, precisely why each of them had decided that the reference of Ms McKee was not satisfactory. On this issue, they were, at times, uncertain and contradictory in their evidence. In this context, it was to be noted, as set out previously, there was no guidance how the reference form should be assessed and how the specific criteria referred to therein were to be evaluated by the panel and/or whether any particular criteria was to be, in terms, more or less important than another (see further Paragraph 2.21 of this decision). In the absence of such guidance, the tribunal therefore came to the conclusion that the issue, whether a reference was satisfactory or not, was a matter for the judgment of the members of the interview panel after consideration of the terms of the particular reference. There was nothing stated, either by the format of the form itself or what had been stated by Ms McKee to show whether or not the assessment by Ms McKee of 'fair' in Paragraphs 4.2 and 4.4 was relevant and/or linked to her later answers to the questions in Paragraphs 6 and 7. Ms McKee was not called by either party and, as indicated above, it was not known at the time of the meeting she did not intend to answer 'Yes'.

2.31     The tribunal, taking into account the uncertainties and contradictions of the evidence of the members of the panel, in relation to the issue why each concluded Ms McKee's reference was not satisfactory, decided each panel member, firstly, had had serious concerns and/or doubts, in view of the 'fair' assessment set out in Paragraphs 4.1 and 4.4. It was apparent, from their evidence, the panel members would each normally have expected to find, in evaluating these criteria, for a satisfactory reference for this post, an assessment of at least satisfactory or better in relation to each of these criteria. The tribunal, in the absence of any weighting guidance, concluded such concerns would still have been in the mind of each member of the panel, who were each experienced in selecting nurses, even if an assessment of 'fair' had been assessed against only one of the said criteria. It was not disputed each of these criteria were properly considered relevant for suitability for appointment to this post. Any assessment of 'fair', in respect of even one relevant criteria, was therefore likely to have raised serious concerns/doubts as to the suitability of an applicant for the post, in the minds of the members of the interview panel. However, the tribunal did not consider that such concerns/doubts, arising from the above assessments given by Ms McKee, were immediately determinative of the issue, by themselves, for the members of the panel; albeit, they were highly relevant and, without more, were likely to lead to the conclusion the reference was unsatisfactory. Before coming to such a final determination, the tribunal concluded, the members of the interview panel had also considered and read the rest of the form to see whether there was anything of relevance contained elsewhere therein. Ms Brenda Creaney, the Directorate Manager/Principal Paediatric Nurse in the Royal Belfast Hospital for Sick Children, to whom earlier reference has been made. (See Paragraph 2.13 of this decision), was the person in overall charge of the interview process for the said post. In her evidence, Ms Creaney gave her opinion that such assessments of the said criteria, at Paragraphs 4.1 and 4.4, would have been sufficient in themselves to conclude that the reference was not satisfactory, without further consideration of the said answers. That indeed may be her opinion; but having heard the evidence from the actual members of the interview panel, the tribunal was not satisfied that was what the panel members did at the time of the meeting.

2.32     The tribunal concluded that, with the said serious concerns and doubts in mind, arising from the assessment of 'fair', as indicated above, the members of the panel looked at the rest of the reference form and, in particular, each considered the answers to the questions in Paragraphs 6 and 7 to see if there was anything of relevance stated. In particular, they noted the answer 'yes' to the question at Paragraph 6, namely 'do you have any reason to believe he/she would not be suitable for the position?'. Although this answer was the subject of an asterisk and an additional statement 'further details can be obtained by contacting Mary McCartney at QUB, the tribunal concluded the members of the panel did not consider it was necessary to look beyond the answer 'yes'; because the answer 'yes', of itself, did not appear to do anything to reduce their concerns and doubts, which had been raised by the 'fair' assessment in relation to the criteria set out in Paragraphs 4.1 and 4.4. In particular, in such circumstances, the members of the panel did not therefore seek the further details from Mary McCartney referred to. The tribunal was further satisfied, although the members of the panel noted the answer to the question at Paragraph 7, with its reference to support for the claimant from Disability Services and occupational health during her course and she had met the NMC competencies for admission to the Register, this answer played no part in the panel's final conclusion that the reference was not satisfactory. The tribunal noted there was nothing to expressly link this answer with the earlier fair assessment in Paragraph 4.1 and 4.4 of the form. Further, the reference in the attachment to Ms McAlinden's January 2006 reference was in very similar terms to the answer given in Paragraph 7 by Ms McKee and the panel had found, as seen above, that that reference, with the said attachment, was satisfactory. Thus, it was not surprising, in the judgment of the tribunal, the panel reached a similar conclusion, in relation to the answer at Paragraph 7 of Ms McKee's March 2006 reference, that what was stated therein was of no relevance in determining whether or not the reference was satisfactory.

2.33     Following the claimant's letter dated 25 May 2006 for feedback of the decision not to select her, in order for a reply to be given, Ms Miriam Gibson, the Employee Relations Equality Manager of the Human Resources Department, consulted with Ms Brenda Creaney, the Directorate Manager/Principal Paediatric Nurse in the Royal Belfast Hospital for Sick Children. Ms Gibson did not give evidence to the tribunal. Ms Creaney was never a member of the interview panel; but, following the decision of the panel not to select the claimant, on the basis that the panel considered she had not provided the necessary satisfactory references, her advice had been sought orally, by Ms Kearney, the Chairperson of the panel, as the person with overall responsibility for children's nursing and before any notification was given to the claimant of her failure to be selected. Ms Creaney did not see, at that time, any of the references received by the panel. Ms Kearney stated in her witness statement:-

" … This was to seek guidance from a more senior office holder. She agreed with the decision made by the panel in light of the nature of her references … ."

In the tribunal's view, Ms Creaney therefore clearly had some involvement and knowledge of this matter. Whilst, in evidence, Ms Creaney sought to downplay her role in giving such advice to Ms Kearney, the tribunal concluded that her discussion with Ms Kearney had focused on the interview panel's decision not to select the claimant, due to the interview panel's conclusion that Ms McKee's reference was unsatisfactory; and was prepared to accept that there probably was no discussion about any other reference – as it was only, as far as she was aware, Ms McKee's reference which was preventing the appointment of the claimant. However, by the time of her e-mail on 20 June 2006 Mrs Creaney knew an issue had arisen about the fact that there was not only a reference from Ms McKee but also that there were three references, on the file, from Ms McAlinden; and that the claimant was seeking feedback on her failure to be selected for the post.

Ms Creaney replied to Ms Gibson, insofar as relevant, as follows:-

"As I agreed when we spoke I would summarise our reasons for non-appointment of Jennifer Johnston.

This nurse's references were unsatisfactory as follows:-

Orla McAlinden 8^th August 2005 – in Section 4.1 – 4.5 all noted as 'satisfactory' except 4.2 which was noted as 'good', comments noted were issues around legibility, clarity and safe effective of communication in writing skills.

Orla McAlinden 15^th September 2005 – In Section 4.1 noted as 'good', 4.2 – 4.5 all noted as 'satisfactory' – comments made on failure to pass assessments and that it was noted the employer would need to consider how this candidate's needs may be supported.

Orla McAlinden 4^th January 2006 – in Section 4.1 – 4.4 all noted as 'good', 4.5 noted as 'satisfactory'.

Heather McKee 8^th March 2006 – in Section 4.1, 4.3 and 4.5 noted as 'satisfactory', 4.2 and 4.4 noted as 'fair'. This referee also stated 'Yes' to the question did you have any reason to believe this person would NOT be suitable for the position she had applied for.

As you know I met with QUB two weeks ago to express my concern this candidate had been given inconsistent references by Orla McAlinden – they are looking into this. Marianne Moutray came back to me last week and informed me that Heather McKee had made an error on her reference and had misread the question above – I've yet to receive this in writing. I would have to say though the summary in Section 4 would not constitute a satisfactory reference in my view, regardless of this comment."

Ms Creaney is a senior member of staff of the respondent and was fully aware, at the time of her reply to Ms Gibson, the claimant was unhappy about the decision not to appoint her; and that, when she replied, Ms Gibson was seeking information in order to give a full reply to the claimant. Ms Creaney told the tribunal, in evidence, that she did not check with the panel the contents of her reply before she sent the reply. She said she had not done so, as she was not a member of the interview panel, and had not attended the meeting in March 2006 and had only had a limited discussion, after the meeting in March 2006, with Ms Kearney which had focused on the reference from Ms McKee. Her involvement had been limited to advice, given by her to Ms Kearney, in relation to her support for the decision by the panel not to select the claimant – given Ms McKee's reference, which the panel did not consider satisfactory. The tribunal came to the conclusion, not without some hesitation, that, despite the context in which the e-mail had come to be written and her reference at the outset of her memo to providing a summary of the reasons for non-appointment, Ms Creaney had been attempting at that time to give her opinion, in her senior position, on the contents of the various references which were on the claimant's file, which were by this stage before her. In particular, by referring to each of the references in the e-mail, the tribunal accepted she had not intended to suggest, despite the unfortunate wording, that all the references referred to had been taken into account and considered by the interview panel when reaching its decision. Her involvement had been limited to advice given to Ms Kearney that the panel had been correct not to select the claimant – given Ms McKee's reference, which the panel did not consider satisfactory. Certainly, an experienced senior member of staff, such as Ms Creaney, should have made this clear and/or, before writing, should have consulted with the members of the interview panel if she was intending to give a detailed reason for non-selection to a post. The tribunal, in reaching this conclusion, took into account that Ms Creaney had never been a member of the interview panel. It was that panel which had decided not to select the claimant for the post, because of Ms McKee's reference. Ms Creaney had not taken that decision; but merely supported it, when asked for her oral advice; and, when doing so, had never seen the said reference of Ms McKee and merely relied upon the limited information given to her by Ms Kearney. Although Ms Creaney's reply to Ms Gibson did not, in the judgement of the tribunal, show that all four references were the reason for the non-selection of the claimant, it did confirm, as set out previously, that all four references were on the file and were therefore likely to have been included in the papers sent to the interview panel, for the meeting to consider references, in March 2006.

2.34     Following her failure to be appointed to the post, the claimant remained on the NMC Register, and still does, which allows her to practice as a Paediatric Nurse and to apply for positions as a Children's Paediatric Nurse. To do other types of nursing, eg adult nursing, the claimant would have required to re-train before obtaining the relevant registration for such nursing. The claimant, from 20 April 2006, following notification of withdrawal of the offer of employment, because she had not satisfied the conditions relating to references, obtained shift work as a Nursing Assistant/Care Assistant with the Trust Caring & Nursing Agency. She did not need her nursing qualification for such work; but, as she acknowledged, it was clearly an advantage given the experience/training she had gained in qualifying as a nurse. However, in this work, she was not able to carry out the duties which normally would be assigned to nurses.

2.35     The claimant, having failed to obtain the post with the respondent, was in a position to apply for similar posts in other hospitals. She applied for a nursing position in a children's ward at Altnagelvin Hospital in Londonderry, in or about June 2006. She also applied in or about June 2006 for a post in Edinburgh Children's Hospital and was interviewed for that post in August/September 2006. Apparently, following the interview, she was not contacted by the Edinburgh Hospital and clearly was unsuccessful. The tribunal initially found her lack of interest in the result of that interview somewhat surprising; but the claimant explained that she had not in fact done well at the interview and therefore had not expected to be successful at the interview for the post. In view of the result of the interview in Edinburgh, and what had occurred in relation to the Belfast post, she decided not to pursue her application for the post at Altnagelvin Hospital and withdrew her application, without attending the interview that she had been offered. At that time, for reasons which the tribunal could understand and accept, she found that her confidence, given her failure to be appointed to the post with the respondent, was at a low ebb and that she had been upset and distressed at the time by her said failure to be appointed. The tribunal could also accept that this played some part in her failure to pursue any other application for similar posts. But, as set out below, this was not the only relevant factor in her decision not to pursue any other similar applications.

There is a history of a shortage of applicants for children's nursing posts, in Northern Ireland, for which the claimant was qualified. Other than her application for the above posts, the claimant made no other applications; albeit the tribunal is satisfied that there would have been other paediatric nursing posts, for which the claimant would have been entitled to apply, at various hospitals throughout the United Kingdom in the period April 2006 onwards, and not just with the respondent. Although the respondent, due to the shortage of paediatric nursing posts, continued at all material times to operate an open application system for such posts, without the need for a specific application, the tribunal had some sympathy with the claimant's reluctance to re-apply to the respondent at any time, given her failure to obtain this post with the respondent, due to the unsatisfactory reference of Ms McKee. The claimant recognised that, if she had made an application for a children's nursing position and had been successful, she would always have earned more than she earned as a Nursing Assistant/Care Assistant from the agency. It was not disputed the respondent continued throughout the relevant period to have ongoing vacancies for similar posts, for which the claimant had been unsuccessful in 2006.

2.36     The claimant decided that, following her failure to obtain the post with the respondent and the post at Edinburgh Hospital and her decision, as seen above, in relation to the Altnagelvin Hospital application, she would no longer continue to apply for children's nursing positions; but would, in essence, make a career change to that of a Childminder and to operate her own business as a Childminder. It was apparent that she had taken steps to become registered as a Childminder at the same time as she was applying for the Edinburgh and Altnagelvin posts; and the tribunal considered that this decision to make such a career change was also a relevant factor in her decision not to pursue the Altnagelvin application or applications for any other posts. She was officially registered as a Childminder in September 2006, following appropriate interviews and safety checks. To be registered as a Childminder, she was not required to have or make use of her nursing qualification; but undoubtedly, as she fully acknowledged, she has, when asked by respective clients, informed them that she was trained as a Child Nurse. This undoubtedly has been an advantage to her in persuading clients to use her as a Childminder. It was apparent to the tribunal the claimant enjoyed her work as a Childminder and running her own business. The first child came to be looked after by her, as a Childminder in October 2006; and the claimant, to her credit, has taken steps to successfully build up her childminding business since then to the date of the hearing. Initially until in or about December 2007, the claimant continued to do some shift work for the agency as well as childminding.

3.1     The claimant in this matter has brought her claim, pursuant to the 1995 Act, which provides in relation to each said claim, as set out below:-

(i) Disability-related discrimination

Section 3A:-

(1) For the purposes of this Part, a person discriminates against a disabled person if –

(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and

(b) he cannot show that the treatment in question is justified;

…

(3) Treatment is justified for the purposes of Sub-section (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.

(ii) Direct disability discrimination

Section 3A:-

…

(4) But treatment of a disabled person cannot be justified under Sub-Section (3) if it amounts to direct discrimination falling within Sub-section (5).

(5) A person directly discriminates against a disabled person if, on the grounds of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.

Section 4:-

(1) It is unlawful for an employer to discriminate against a disabled person –

(a) in the arrangements which he makes for the purpose of determining to whom he should offer employment;

(b) in the terms on which he offers that person employment; or

(c) by refusing the offer, or deliberately not offering, him employment.

(iii) Failure to make reasonable adjustments

Section 3A:-

(2) For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.

Section 4A:-

(1) Where –

(a) a provision, criterion or practice applied by or on behalf of an employer; or

…

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled; it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice …having that effect.

(2) In Sub-section (1) "the disabled person concerned"

(a) in the case of a provision, criteria or practice for determining to whom employment should be offered, any disabled person who is, or has notified the employer that he may be, an applicant for that employment;

(b) in any other case, a disabled person who is -

(i) an applicant for the employment concerned.

(3) Nothing in this Section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know –

(a) in the case of an applicant a potential applicant, that the disabled person concerned is, or maybe, an applicant for the employment; or

(b) in any case, that that person had a disability and is likely to be affected in the way mentioned in Sub-section (1).

Section 18B:-

(1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had in particular to –

(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

(b) the extent to which it is practicable for him to take the step;

(c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;

(d) the extent of his financial and other resources;

(e) the availability to him of financial or other assistance with respect to taking the step;

(f) the nature of his activities and the size of his undertaking.

(g) …

[(2) Various examples of steps which a person may need to take in relation to a disabled person in order to comply with a duty to make reasonable adjustments are set out in this Sub-section.]

3.2     In relation to direct discrimination under the 1995 Act, it has to be noted that there is no justification defence to this category of discrimination. It had previously been considered to be a narrower concept than disability-related discrimination (but see later). The less favourable treatment requires to be 'on the ground of' the disabled person's disability - ie was the alleged discrimination on the prohibited ground? As the Disability Code of Practice, issued under the Act, makes clear less favourable treatment, which is disabled specific or which arises out of prejudice about either disability generally or about a particular disability, can amount to direct discrimination. The comparator may be actual or hypothetical - namely a person who does not have a disability at all or a person who has another kind of disability. The circumstances of the comparator need not be the same in every respect; but the relevant circumstances (including his/her abilities) must be the same or not materially different from those of the disabled person (see further the Disability Code of Practice and the case of High Quality Lifestyles Ltd v Watts [2006] IRLR 850 and also Shamoon v Chief Constable of the RUC (2003) IRLR 285 and in particular opinion of Lord Nicholls).

Knowledge that a person has a disability or is a disabled person does not appear to be required, since the treatment may not be conscious (see Brian Doyle Disability Discrimination Law and Practice, 6^th Edition, Page 58 and also the Disability Code of Practice).

3.3     The law relating to disability-related discrimination under the 1995 Act has been significantly altered, insofar as it was previously understood, following the recent House of Lords decision in the case of London Borough of Lewisham v Malcolm [2008] IRLR 700. Although this decision was not an appeal from a decision in Northern Ireland, the tribunal has no doubt it is a decision which must be followed by this tribunal, even if, in theory, it is not strictly binding on the tribunal. This was a case which was not an employment case but a housing disability-related discrimination case, where a mentally ill tenant sublet his council flat in breach of his tenancy agreement. He would not have done so but for his illness. The council, with no knowledge of his illness, gave notice to quit and sought possession from the tenant who claimed the eviction was disability-related discrimination on the part of the council. Although this was not an employment case, the tribunal has taken the view it has equal application to an employment case, such as the claim brought by the claimant, as the case considered, in particular, the proper interpretation of the meaning of disability discrimination under the 1995 Act, as set out in Section 3A(1). In fairness, neither representative in the course of their further submissions in this matter sought to suggest otherwise. Indeed the view adopted by the tribunal has been confirmed in the recent decisions of the Employment Appeal Tribunal in the cases of:-

The Child Support Agency (Dudley) v Truman [2009] IRLR 277;

Hose Express Thurrock Ltd v Jacomb [2009] UKEAT/0389; and

Stockton-on-Tees Borough Council v Aylott [2009] UKEAT/0401;

Carter v London Underground Ltd & Another [2009] UKEAT/0292

Although these decision are not binding on this tribunal, albeit very persuasive, the tribunal could see no reason why this tribunal should not follow them.

On the particular facts of the case, the House of Lords held, in Malcolm, that the reason for the possession action by the council was not disability-related and it was not less favourable treatment. In so doing, it also held that the long established decision in the of Clarke v Novacold [1999] IRLR 318 was wrongly decided.

The judgment of the House of Lords was a majority decision, with a strong dissenting decision by Baroness Hale on certain issues. In the circumstances, given the different opinions of their Lordships, albeit in the majority, it is difficult at times to discern the true ratio decided of the case. However, it is clear that the majority of the House of Lords considered that Section 3A(1) required to follow a four-stage process:-

(1) What was the treatment complained of? – namely the possession action.

(2) What was the reason for the treatment?

This, in their Lordships' view, following the decision in Taylor v OCS Group Ltd [2006] IRLR 613, required consideration of what operated on the mind of the respondent in acting as it did – which it found to be the fact the claimant had sublet the flat.

(3) The third and more controversial question related to – did that reason relates to the person's disability?

On this issue the majority did not speak with one voice and there is thus, in the circumstances, some debate about the precise parameters of the decision on this particular issue. For example, Lord Bingham said:-

"I take the expression to denote some connection, not necessary close (but then again not too remote) between the reason and the disability – and therefore suggested the requirement was more than simply 'but for' causal connection."

Lord Newberger stated:-

"A relevantly loose or indirect connection between the reason and the disability would suffice."

However, Lords Scott and Brown, who are part of the majority, said:-

"That it must be possible to say that the defendant knew of the disability."

Whilst Lords Bingham and Newberger and Baroness Hale said:-

That the defendant must know or ought to have known of the disability."

However, Lord Brown and Baroness Hale observed it was not necessary to know that it satisfied the statutory definition of disability. Again, this requirement of knowledge, whether actual or constructive, was a further revision of what had been previously understood to be the law in this area. Since the council did not know of the tenant's disability, the necessary connection could not be established.

(4) The fourth and final question to be determined, as set out by the majority, was – was it less favourable treatment than the treatment of others to whom that reason did not apply?

In answer, the majority found, contrary to the previous decision in Clark v Novacold [1999] IRLR 318, that the correct comparator, for the purposes of the relevant provisions of the 1995 Act, was a secure tenant of the Council without a mental disability who had sublet his property and who had gone to live elsewhere. Thus the Novacold approach was not followed; if it had been followed in Malcolm the appropriate comparator would have been a secure tenant who did not sublet his authority or who had gone to live elsewhere.

Thus, following Malcolm and the above case law, the appropriate comparator in a case of disability-related discrimination is somebody who has all the features of the claimant but who was not disabled within the meaning of the 1995 Act.

3.4     In relation to a failure to comply with a duty to make reasonable adjustments in respect of a disabled person, whilst it used to be that an employer could justify a failure to make a reasonable adjustment since the Disability Discrimination Act 1995 (Amendment) Regulations (Northern Ireland) 2004, where a duty arises, an employer cannot justify a failure to make a reasonable adjustment.

As set out in Section 4A(3)(a)(b) of the 1995 Act (see Paragraph 3.1) it is expressly provided, in the case of an applicant for employment, the employer and/or a perspective employer has a duty to make an adjustment if it knows or could reasonably be expected to know that the applicant has a disability and (tribunal's emphasis) is likely to be placed at a substantial disadvantage. This has been confirmed in the recent case of Eastern and Costal Kent PCT v Grey [2009] UKEAT 6454, where the EAT held that, for an employer or prospective employer to be exempt from the duty to make reasonable adjustments pursuant to Section 4A(3)(b) of the 1995 Act, each of the following four matters require to be satisfied, namely:-

(a) does not know that the disabled person has a disability;

(b) does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled;

(c) could not reasonably be expected to know that the disabled person had a disability; and

(d) could not be reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.

In further submissions to the tribunal the representatives did not suggest this tribunal should not follow the judgment in Eastern and Coastal Kent PCT.

The Northern Ireland Court of Appeal in the case of SCA Packaging v Boyle (2009) IRLR 54, the Court, albeit considering the interpretation of the use of the word 'likely' in relation to the definition of disability, found that 'likely', in that particular case, was used in the sense of 'could well happen' rather than the higher threshold of 'more probably than not' (ie balance of probabilities). The Court emphasised the meaning to be given to the word, 'likely', in any statute will depend upon the context in which it is used. SCA Packaging Ltd was not considering the use of the word 'likely' in the context of Section 4A; and the tribunal therefore did not find it of great assistance or relevance in determining the issues in these proceedings. This tribunal understands the case of SCA Packaging Ltd is presently the subject of appeal to the House of Lords.

In the EAT decision of Eastern and Coastal Kent PCT v Grey, which is not binding on this tribunal, albeit persuasive, the EAT considered that the use of the word 'likely', in the context of Section 4A(3)(b) of the 1995 Act, did not have the same meaning as the word 'might' and the draftsman intended some different meaning than may or might (see Paragraph 22 of the judgement). Both representatives, in further submissions to the tribunal, did not dissent from the above opinion, as expressed in Eastern and Coastal Kent PCT and did not seek to urge the tribunal to follow the judgment of the Court of Appeal in SCA Packaging Ltd. Both acknowledged that, in any event, the decision of the Court of Appeal was concerned with a different section of the Act and arose in a different context.

In light of the foregoing, the tribunal decided it should interpret, insofar as it was necessary to do so, the use of the word 'likely', in the context of Section 4A, as meaning something more than could/might well happen and more akin to more probable than not. This interpretation would also seem to be supported by the statutory guidance under the 1995 Act, where the word 'likely' is referred to.

The employer, however, must do all it can be reasonably be expected to do to find out whether the said exemption relating to knowledge under Section 4A(3) applies. Indeed in the Disability Code of Practice (for the elimination of discrimination in the field of employment against disabled persons or persons who have had a disability) issued under the 1995 Act provides (see Page 81) it is apparent that such knowledge, which may be actual, implied or constructive, can include, for example, a Human Resources Department:-

"If an employer's agent or employee (for example an Occupational Health Officer, a Personnel Officer or Line Manager) knows in that capacity of an employee's disability then the employer cannot claim that he does not know of that person's disability and he is therefore excluded from the obligation to make a reasonable adjustment. This will be the case, even if the disabled person specifically asks for such information to be kept confidential – employers will therefore need to ensure, for information about disabled people which may come through different channels – there is a means – suitably confidential – for bringing the information together to make it easier for the employer to fulfil its duties under the Act."

(See further London Borough of Hammersmith and Fulham v Farnsworth [2000] IRLR 69].)

3.5     In a recent EAT decision, Environment Agency v Rowan [2008] IRLR 20, it was held that an employment tribunal considering a claim that an employer has discriminated against an employee by failing to comply with the duty of reasonable adjustment must identify:-

(a) the provision, criterion or practice applied by or on behalf of an employer;

(b) ...

(c) the identity of non-disabled comparators (where appropriate); and

(d) the nature and extent of the substantial disadvantage suffered by the claimant.

It further held that, unless the tribunal had gone through that process, it could not go on to judge, if any proposed adjustment was reasonable, because it would be unable to say what adjustments were reasonable to prevent the provision, criterion or practice, placing the disabled person at a substantial disadvantage.

As was held in the case of Morse v Wiltshire County Council [1999] IRLR 352 EAT, once it is decided the provisions of Section 4A impose a duty on the employer, in the circumstances of the particular case, it is then necessary to decide whether the employer has taken such steps, as it is reasonable in all the circumstances of the case, for him to have to take in order to prevent the arrangements having the effect of placing the disabled person concerned at a substantial disadvantage in comparison with others who are not disabled. To do this, requires a tribunal to enquire whether the employer could reasonably have taken any of the steps set out in Section 18B(1), having regard to the factors as set out in Section 18B(2) (see Paragraph 3.1 of this decision). In the Court of Appeal decision in the case of Beart v HM Prison Service [2003] IRLR 238, it was held the steps set out in Morse do not require to be followed sequentially, provided it is apparent the requirements of the statute have been satisfied. In the case of HM Prison Service v Johnston [2007] IRLR 951 EAT it was held that, in deciding there was a breach of Section 4A of the 1995 Act, it is necessary for the tribunal to identify with some particularity the step the employer failed to take.

3.6     'Provision, criterion or practice' ('PCP') are not defined in the 1995 Act, except they include 'any arrangements'. This was the wording prior to the amendment of the 1995 Act under the Disability Discrimination Act (Amendment) Regulations (Northern Ireland) 2004. The Code of Practice makes clear this would include arrangements, for example, for determining to whom employment should be offered, and terms, conditions or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded. In the case of Archbold v Fife [2004] IRLR 651, the House of Lords (see Lady Hale) gave a very broad interpretation to arrangements. The duty to make reasonable adjustments applies, for example, to selection and interview procedures as well as to job offers, contractual arrangements and working conditions (see Page 77 of the Code).

Substantial disadvantage means "more than minor or trivial (see Goodwin v Patent Office (1999) IRLR4; and also further Code of Practice). The correct comparator in a reasonable adjustment case was held by the Court of Appeal, in the case of Smith v Churchill's Stairlifts PLC [2006] IRLR 41 to be readily identified by reference to the particular disadvantage caused by the relevant arrangements, and the comparison is not made with the entire non-disabled population. Thus, the comparison is to be made between 'the disabled person concerned' and persons who are not disabled. This case also made clear the test of reasonableness (for the purposes of the duty to make reasonable adjustments) is objective and not subjective.

3.7 Section 17A of the 1997 Act provides:-

(1) A complaint by any person that another person – has discriminated against him … in a way which is unlawful under this Part

…

may be presented to a tribunal.

…

(1C) Where, on the hearing of a complaint under Sub-section (1) the complainant proves facts from which the tribunal could, apart from this Sub-section, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves that he did not so act.

The English Court of Appeal, in the case of Igen v Wong [2005] IRLR 258 considered a similar provision under the Sex Discrimination legislation and approved with minor amendment, the guidelines set out in the earlier decision of Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332. In a number of recent decisions the Northern Ireland Court of Appeal has approved Igen v Wong and the two-stage process set out therein. (See Bridget McDonagh & Others v Samuel Thom T/A The Royal Hotel Dungannon [2007] NICA3); and that the guidance in Barton was the correct approach to be taken in relation to the said burden of proof, including under the 1995 Act. The decision in Igen v Wong has been the subject of a number of further decisions including Madarassy v Nomura International PLC [2007] IRLR 246, a decision of the Court of Appeal in England and Wales, and Laing v Manchester City Council [2006] IRLR 748, both of which decisions were expressly approved by the Northern Ireland Court of Appeal in the case of Arthur v NIHE and Another [2007]:-

"The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts 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 Section 63A(2) must mean that 'a reasonable tribunal could properly conclude' from all the evidence before it. This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, 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 needs to consider all the evidence relevant to the discrimination complaint, such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied up by the claimant to prove less favourable treatment, evidence as to whether the comparison being made by the claimant were of like with like as required by Section 5(3), and available evidence of the reasons for the differential treatment. The correct legal position was made plain by the guidance in Igen v Wong … .

Although Section 63A(2) involves a two-stage analysis of the evidence, it does not expressly or impliedly prevent the tribunal at the first-stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the claimant's evidence of discrimination. The respondent may adduce evidence at the first-stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the claimant; or that the comparators chosen by the claimant or the situations with which comparisons are made are not truly like the claimant or the situation of the claimant; or that, if there has been less favourable treatment of the claimant, it was not on the ground of her sex or pregnancy. Such evidence from the respondent could, if accepted by the tribunal, be relevant to showing that, contrary to the claimant's allegations of discrimination, there is nothing in the evidence from which the tribunal could properly infer a prima facie case of discrimination on the proscribed ground.

The approach of Elias J in Laing v Manchester City Council would be approved … ."

In Laing v Manchester City Council [2006] IRLR 748, which was approved by Campbell LJ in the Arthur case, Elias J said in relation to the two-stage process:-

"71 There seems to much confusion created by the decision in Igen v Wong [2005] ICR 931. What must be borne in mind by a tribunal, faced with a race claim, is that ultimately the issue is whether or not the employer has committed an act of race discrimination. The shifting of the burden of proof simply recognises that there are problems of proof facing an employee which would be very difficult to overcome if the employee had at all stages to satisfy the tribunal on the balance of probabilities that certain treatment had been by reason of race.

…

73 No doubt in most cases it would be sensible for a tribunal to formally analysis a case by reference to the two-stages. But it is not obligatory on them formally to go through each step in each case.

…

75 The focus of the tribunal's analysis must at all times be the question whether or not they can properly and fairly infer race discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a tribunal to say, in effect, 'there is a nice question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and is nothing to do with race'."

(See further Brown v London Borough of Croydon [2007] IRLR 259.)

As Lord Nicholls observed in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] NI 174 at Paragraph 8 of his judgment:-

"Sometimes a less favourable issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined."

(See further Curley v Chief Constable of the Police Service of Northern Ireland [2009] NICA 8.)

3.8     The EAT decision in the case of Project Management Institute v Latif [2007] IRLR 579 considered for the first time how the said burden of proof provisions should be applied for the purposes of a claim for failure to make reasonable adjustment.

It held the claimant must not only establish that the duty of reasonable duty has arisen, but there are facts from which it could be reasonably inferred, in the absence of an explanation, that it has been breached. By the time the case is heard by a tribunal, the EAT further held there must be evidence of some apparently reasonable adjustment that could be made, even though the claimant does not have to identify the proposed adjustment until after the alleged failure to implement it. In essence, the claimant must have put forward, for the burden to pass, at least the broad nature of the adjustment proposed, and to be given sufficient detail to enable the respondent to engage with the question of whether or not it could be reasonably achieved. If that is not done by the claimant it was considered, by the EAT, it would place an impossible burden on an employer to prove a negative, that there is no adjustment that could reasonably be made.

4.1     The tribunal then proceeded to consider, in light of the facts as found by it and the relevant legal authorities referred to, whether the claimant had been unlawfully discriminated against pursuant to the 1995 Act.

4.2     In relation to the claimant's claim that she had been directly discriminated against on the grounds of her disability the tribunal decided, applying the two stage process set out in Igen v Wong, that it could not properly conclude the respondent had unlawfully discriminated against the claimant.

The tribunal was satisfied that the reason why (see further Shamoon) the claimant was not appointed to the post was that she had not provided to the interview panel two satisfactory references. Although the reference from Ms McAlinden (January 2006) was satisfactory, the reference of Ms McKee was not found to be satisfactory. In particular, the interview panel found the said reference from Ms McKee was not satisfactory, because Ms McKee had assessed the criteria 'co-operation with others' (Paragraph 4.2) and 'attitude towards work' (Paragraph 4.4) as 'fair', which were not sufficient to meet the standard required by the interview panel of satisfactory or better. There was no evidence before the tribunal that Ms McKee's assessment of 'fair', in relation to each of the above criteria, was relevant to the claimant's dyslexia. Indeed, both the claimant and Mr Eakin accepted the claimant's dyslexia would not have affected her ability to comply with such criteria, namely 'co-operation with others' and 'attitude towards work'. It is correct the interview panel did, before reaching its decision, note the answer 'yes' to the question at Paragraph 6, namely 'do you have any reason to believe he/she would not be suitable for the position?'; but the panel decided this answer did nothing to reduce their serious concerns and doubts, which had already been raised by the 'fair' assessment in relation to the said criteria. In these circumstances, the panel did not consider it was necessary to look beyond the answer 'yes' and to contact Mary McCartney for further details at QUB in relation to disability. There was nothing on the reference form to link the answer at Paragraph 6 to the earlier assessment of 'fair' to the said criteria.

As Coghlin LJ emphasised in the case of Curley v Police Service of Northern Ireland and Another [2009] NICA 8, albeit a case of religious discrimination, the tribunal must keep in mind at all times the claim of the claimant is founded upon an allegation of [disability] and the need to retain such a focus when applying the burden of proof provisions. In the judgment of the tribunal, the decision not to select the claimant was, in the circumstances, nothing to do with her disability but solely because Ms McKee had assessed her on two criteria as 'fair', which resulted in the panel's conclusion the said reference was not satisfactory.

Further, the tribunal was satisfied that the claimant had not established, on the facts as found by the tribunal, that if a non-disabled person applying for the post, who had provided a similar reference to that provided by Ms McKee for the claimant, would have been treated in any different way to the claimant by the interview panel; and would have been similarly found to have provided a reference which was not satisfactory.

The tribunal therefore decided the claimant had not been discriminated against by the respondent on the ground of her disability, contrary to the 1995 Act, as amended.

4.3     In light of its conclusions, as set out in the previous sub-paragraph, in relation to direct discrimination and, in particular, the tribunal's conclusion that a non-disabled person applying for the said post and providing similar reference would have been treated in the same way, the tribunal, in light of the Malcolm decision, decided it could not therefore properly conclude the respondent had unlawfully discriminated against the claimant for a reason related to her disability. In the circumstances, it was therefore not necessary to consider this claim further.

The tribunal therefore decided the claimant had not been discriminated against by the respondent for a reason which related to the claimant's disability, contrary to Section 3A(1) and (3) of the 1995 Act, as amended.

4.4     In relation to the claimant's claim that the respondent had failed to comply with its duty to make reasonable adjustments, the tribunal was not satisfied that the respondent was entitled to rely on the exemption set out in Section 4A(3)(b) of the 1995 Act, and as interpreted in the Eastern and Coastal Kent PCT case. It so concluded because, although the individual members of the panel, as they contended, may not have known the claimant suffered from dyslexia and was disabled, the respondent's Human Resources Department did so; at all material times the said Department had the references provided by Ms McAlinden in 2005 and therefore the respondent, for the purposes of the Section, had the necessary knowledge. In such circumstances, it was not necessary for the tribunal to further consider the other elements, all of which require to be satisfied, as set out in the above Section of the 1995 Act. In addition, the members of the panel had at the meeting in March 2006 the opportunity to read the 2005 references of Ms McAlinden, albeit they did not do so and/or have regard to same. The panel therefore also had the said knowledge, for the purposes of the said Section of the 1995 Act.

4.5     The members of the panel did not take any steps to contact Mary McCartney at QUB for further details as invited to do so, as set out in the answer given in Paragraph 6 of the reference form, provided by Ms McKee. This was undoubtedly a failure by the panel and a failure which could have been very easily dealt with by either a phone call/e-mail or letter, with little or no cost to the respondent. Indeed the respondent did not suggest otherwise.

The tribunal concluded that the failure to follow-up such an answer given on a reference, where the referee was inviting the recipient of the reference to do so, was 'a provision, criterion or practice' (PCP) applied by the respondent. However, given the broad interpretation given by the meaning of PCP (see Paragraph 3.6 of this decision) the tribunal decided a practice not to follow-up such an invitation to obtain further details by a referee could be a PCP, for the purposes of the 1995 Act.

The tribunal accepted that, if this further contact had been made, it was most unlikely that any further details obtained from Ms McCartney would have added anything of significance to the panel's knowledge, which had not already been given in Ms McAlinden's 2006 reference and indeed the answer given at Paragraph 7 of Ms McKee's reference – none of which had had any relevance to the panel's decision that two satisfactory references had not been provided. Ms McCartney, as the Disability Officer at QUB and, in particular, in the School of Nursing and Midwifery, who looked after disabled students in the said school, clearly would have been able to give details of the difficulties relating to her dyslexia which the claimant encountered during her course and thereby expand on/clarify the answer in Paragraph 7 of the reference, ('received support from Disability Services and Occupational Health during her course. Has met the NMC Competences for admission to the register'), which was in similar terms to Ms McAlinden's 2006 reference attachment. By failing to follow-up the invitation to obtain such further details, the claimant did, in the judgment of the tribunal, suffer a substantial disadvantage, which, as defined previously, means 'more than minor or trivial'. The claimant therefore did not get the opportunity, as she was entitled, to have her reference considered fully in its entirety. The reference had suggested obtaining these further details as part of her reference. To fail to do so meant the reference was not fully considered. The reference to obtaining the further details was clearly intended by the referee, by use of the asterix, to be part of the answer given in Paragraph 6.

4.6     In the circumstances, the tribunal concluded, applying the burden of proof provisions (see Project Management v Latif [2007] IRLR 579), the claimant had shown, in the absence of an explanation, that the respondent was under a duty to make a reasonable adjustment, namely to contact Ms McCartney; and that it had failed in its duty to do so. There was no dispute that to contact Ms McCartney would have been easily carried out and, if required to be done, would have been a reasonable adjustment. The members of the panel, as found by the tribunal, did not consider it was necessary to look beyond the answer 'yes' in Paragraph 6 of Ms McKee's reference, because the said answer 'yes', of itself, did nothing to reduce their concerns and doubts, which had been raised by the 'fair' assessment, in relation to the criteria set out in Paragraph 4.1 and 4.4. In such circumstances they did not go on to seek the further details from Ms McCartney referred to. In essence, the members of the panel ignored it. The tribunal did not consider it was entitled to do so. It was not to know at that time what further details would have been given, and their relevance to the issue of whether or not Ms McKee's reference was a satisfactory reference. The tribunal therefore concluded the respondent had not, in light of the above explanation, discharged the burden; and the claimant was thereby discriminated against by the respondent by the failure of the respondent to comply with its duty to make reasonable adjustments, imposed on it in relation to the claimant, contrary the 1995 Act, as amended.

The tribunal has no doubt that, if such details had been obtained from Ms McCartney, she, in essence, would have said little if anything more than was already set out in Paragraph 7 of Ms McKee's reference and the attachment to Ms McAlinden's January 2006 reference – neither of which were of any relevance to the interview panel's decision. However, at the time, the panel did not know this and therefore it could not be a proper explanation for a failure to comply with the duty to make reasonable adjustment. To suggest otherwise, in the judgment of the tribunal, would have been to determine the issue, with the benefit of hindsight. However it was, as set out below, relevant to the issue of remedy.

5.1     The tribunal, having concluded the respondent had been unlawfully discriminated against by reason of the failure to comply with its duty to make reasonable adjustments, when it failed to contact Ms McCartney at QUB for the said details, as set out in Ms McKee's reference, then considered the remedy to which the claimant was entitled.

5.2     Since the tribunal accepted that, even if the said contact had been made, it would have not made any difference to the decision made by the respondent that the claimant had not satisfied the condition in relation to the provision of a satisfactory reference and was therefore not selected for the post, the tribunal did not therefore require to consider further any issue relating to any loss of earnings claimed by the claimant, arising out of her failure to be so selected.

5.3     However, the tribunal was satisfied that, as a result of the said unlawful discrimination, the claimant had suffered injury to her feelings. But, in the judgment of the tribunal, a considerable part of her upset, distress and loss of confidence arose from her failure to be selected for the post, which is not relevant to any award of compensation in the circumstances, set out above, rather than from any failure to comply with the duty itself. Clearly these matters were interlinked and difficult to separate for the purposes of this exercise. Having regard to the various bands set out in the case of Chief Constable of West Yorkshire Police v Vento [2003] IRLR 102, the tribunal came to the conclusion that the appropriate award for the said injury to the claimant's feelings was in the lower band, referred to in the said case, taking into account the said case was decided in 2003. The tribunal decided the claimant should be awarded the sum of £2,500.00.

5.4     The tribunal considered whether to award interest under the provisions of the Industrial Tribunal (Interest and Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996 ('the Regulations') and concluded it should include interest on the sum so awarded in relation to the injury to the claimant's feelings.

For the purposes of the Regulations:-

Date of the first act of discrimination 10 April 2006

Calculation date 10 June 2009

The tribunal therefore awards compensation as follows:-

(a) Injury to the claimant's feelings £2,500.00

(b) Interest @ 8% per annum from

10 April 2006 to 10 June 2009 £ 633.00

(c) Total award of compensation (a) and (b) £3,133.00

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

Chairman:

Date and place of hearing: 3 – 7 March 2008;

10 March 2008;

3 October 2008;

5 November 2008;

14 February 2009; and

16 March 2009

Belfast

Date decision recorded in register and issued to parties: