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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Woods v System Operator for Northern I... [2009] NIIT 865_08IT (10 August 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/865_08IT.html
Cite as: [2009] NIIT 865_8IT, [2009] NIIT 865_08IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 865/08
CLAIMANT: James Woods
RESPONDENT: System Operator for Northern Ireland (SONI)
DECISION
The decision of the Tribunal is that the claimant was not discriminated against on the ground of his age and his claim fails.
Constitution of Tribunal:
Chairman: Ms P Sheils
Panel Members: Mr D Hampton
Mr J Patterson
Appearances:
The claimant appeared and represented himself.
The respondent was represented by Mr Conor Hamill, Counsel, instructed by Ms Adrienne Brock of Elliott Duffy Garrett, Solicitors.
1. THE CLAIM AND DEFENCE
The claimant lodged a claim form on 13 June 2008 claiming that the respondent had discriminated against him on grounds of his age in their failure to appoint him to the post of Grid Operations (Near Time) Engineer, SONI.
The respondent lodged a detailed response on 31 July 2008 denying that the claimant had been discriminated against on the grounds of age or at all.
2. SOURCES OF EVIDENCE
(a) Witnesses
On behalf of the claimant the Tribunal heard from;
(1) The claimant, Mr James Woods
(2) Mr Glenn Flannagan, Grid Operations (Near Time) Engineer SONI
On behalf of the respondent the Tribunal heard from;
(1) Ms Liz Burnside, Human Resource Advisor, Northern Ireland Electricity Plc
(2) Mr Michael Preston, SEN TSO Day 1 Plus Readiness Manager, SONI
(3) Mr Alexander Baird, Grid Operations Manager (Near Time), Northern Ireland Electricity Plc
(4) Mrs Gillian McAuley, Human Resource Manager, NIE Plc (2008)
(5) Mr Robin McCormick, General Manager of SONI
(6) Mr Alistair Dawson, Commercial Engineer (2006) Power Team Electrical Services
(b) Documents
The Tribunal was given a bundle of some 289 pages at the outset of the hearing and received a number of miscellaneous documents throughout the hearing.
3. RELEVANT FACTS
3. 1 The tribunal found the following relevant facts as agreed or proven, on a balance of probabilities:
3. 2 The claimant applied for the post of Grid Operations (Near Time) Engineer in SONI in January 2008. The closing date for applications was 1 February and the claimant was subsequently short-listed for this post.
3. 3 The respondent advertised for a number of posts at this time. Specifically two related to Grid Engineer. The first of these was Grid Planning Engineer and the second was Grid Operations Engineer. Five candidates were interviewed and of those candidates two applied for both positions.
3. 4 At interview there were two sets of interview questions used: one set to test candidates for the planning post and the other to test the candidates who had applied for planning and operations.
3. 5 There were four interviewers in total. Liz Burnside, Michael Preston, Alec Baird, and Raymond Skillen. Mr Baird scored those candidates who had applied for the operations post and Mr Skillen scored those candidates who applied for the planning post.
3. 6 The claimant was interviewed for this post on 19 February 2008 by Liz Burnside, Michael Preston and Alec Baird.
3. 7 By 19 March 2008 the claimant had had no word from the respondent in relation to his interview. At that point the claimant contacted the respondent’s HR Department by telephone and made an enquiry as to what was happening. The person who answered stated that the claimant would be contacted shortly thereafter. On 20 March 2008 the claimant was contacted by telephone and invited to attend for second interview the following day, 21 March 2008.
3. 8 Subsequent to the first interview and by letter dated 17 March 2008 the respondent offered the post of Grid Operations (Near Time) Engineer to Ms Emma Connolly. However, the respondent was unable to reach a decision in relation to the appointment of the second post.
3. 9 To this end the respondent decided to interview two candidates a second time. These were the claimant and Mr Glenn Flanagan. The second interview took place on 21 March. Mr Flanagan was offered the post by letter dated 27 March 2008. When the claimant had received no communication from the respondent he contacted the Human Resource Department on 21 April 2008 and subsequently received a telephone call from the respondent on 22 April 2008 advising him that he had been unsuccessful.
4. OVERVIEW
4.1 The claimant alleged that he had been discriminated against on the grounds of his age on the basis that both the successful candidates were younger than he was and less experienced than he was. The claimant alleged that this discrimination had taken a number of forms throughout the entire recruitment process including:-
· that to a lesser or greater extent all interview panellists over scored the successful candidates;
· that the respondent failed properly to apply their recruitment and selection Code of Practice;
· that the respondent failed to take up the claimant’s references as an external candidate and used instead an out of date performance review summary that the respondent queried the claimant in respect of this performance review summary at first interview;
· that the respondent failed to appoint him at the end of the first interview when he had attained a second decision;
· that the respondent changed the criteria for the second interview to the significant advantage of Mr Flanagan;
· and that the respondent enabled Mr Flanagan to prepare for and address the criticisms of him in his performance review summary at the second interview and ultimately by failing to appoint him to either post at the end of the first interview or the second interview stage.
5. THE FIRST INTERVIEW
5.1 The claimant stated that the respondent discriminated against him at the first interview in a number of ways. These included the misuse of their recruitment Code of Practice throughout the process; over-scoring one of the successful candidates, Emma Connolly, at first interview; the use of only his performance review summary at the first interview; the failure to appoint him to one of the two positions at first interview when he attained second to position; changing the criteria for the second interview by removing criteria on which the claimant had scored above the second successful candidate, Glenn Flanagan, enabling Mr Flanagan to prepare for and address weaknesses in his performance review summary at second interview.
The Tribunal concluded relevant facts in relation to each of these as follows:
5.2 Misuse of internal Code of Practice
5. 2.1 The claimant stated that the failure to adhere to their own internal Code of Practice on recruitment occurred when the respondents failed to contact his given external referees for references and treated him instead like an internal candidate and used an out of date PRS instead.
5. 2.2 The Code of Practice indicated at paragraph 9.4 that external candidates were required to give details of two references, “one of whom must be your current or most recent employer, the other to be a previous employer or someone who has knowledge of your capabilities and past work experience”.
5. 2.3 The Code went on to say “panels will only use information supplied as part of an application. For internal candidates the Performance Review Summary (PRS) will automatically be sought to provide interview panels with relevant factual information on previous performance.”
5. 2.4 The respondent accepted that they had not contacted the claimant’s external referees but otherwise the evidence in relation to this conflicted. According to Ms Burnside she believed that Mr Woods’ previous employment in the Viridian Group meant that the Code of Practice was applied to him. However Ms McAuley stated that she decided not to obtain references from the claimant’s referees on the basis that she believed that these would be positive and self-serving but instead directed Ms Burnside to obtain a Performance Review Summary (PRS) from the claimant’s file. Ms Mc Auley believed that this PRS would give a more relevant account of the claimant’s work and performance capabilities.
5. 2.5 Further Ms McAuley stated that on receipt of the claimant’s application from the Human Resource Manager she realised immediately that the claimant had previously worked for NIE for some years up until 2004 when he had left under a Voluntary Severance Scheme. Ms Mc Auley recalled her experience of the claimant when he had worked in NIE which included her working with the claimant’s managers to provide them with advice on dealing with his poor performance issues.
5. 2.6 The claimant’s additional complaint was that he was the only candidate to have had to deal with questions relating to a PRS at interview. The Code of Practice and the interview scheme indicated that the PRS for internal candidates would be sought before interview and considered after interview, prior to appointment. However Ms Mc Auley directed Ms Burnside to raise the PRS issues with the claimant at interview.
5. 2.7 During his interview the claimant answered the questions put to him in respect of the negative remarks and stated that if the panel was willing to contact any one of his other managers that another PRS would contain positive remarks about his performance.
5. 2.8 The Tribunal noted further conflict in the respondent’s evidence in that in her witness statement Ms Burnside stated that the PRS forms in respect of Ms Connolly and Mr Flanagan were not available at the date of the interviews but that she had subsequently requested them. This contrasted with her evidence at hearing when she stated she had sought all PRSs prior to the interviews, in line with the Code of Practice to this effect.
5. 2.9 The interview scores showed that Ms Connolly received the highest overall score and was 23 points ahead of the next highest score, the claimant. The claimant in turn was 23 points ahead of the next highest score, Mr Flanagan’s.
5. 2.10 The claimant stated that the respondent’s failure to appoint him at this point was also outwith the terms of the Code of Practice which stated, at paragraph 9.5, “candidates who are suitable for appointment but have not been ranked first will be ranked in order of the next most suitable and identified as reserved candidates. The reserve list will be used to fill any similar vacancies within a maximum of six months of the closing date of the initial vacancy.” The claimant suggested that this wording of the Code of Practice indicated that he ought to have been “ranked in order of the next most suitable” and selected as second candidate.
5. 2.11 The respondent stated that they had not done so nor had they sought to appoint the claimant at this point because the claimant had not satisfactory addressed their concerns about his performance.
5. 2.12 The Tribunal noted the specific part of the Code of Practice referred to candidates being “ranked in order of the next most suitable”. It was clear to the Tribunal that the process appointment involved the numeric ranking of candidates plus an assessment of their performance in view of either external reference or an internal PRS. This process was followed in relation to the appointment of Ms Connolly and was not challenged by the claimant as being incorrect.
5.3 Scoring
5. 3.1 The claimant stated that at his first interview he had been discriminated against through a combination of the over scoring of the other candidates and the underscoring of him. He stated that Ms Connolly had been over scored by Ms Burnside, Mr Baird and Mr Preston and that Ms Burnside had also over scored Mr Flanagan. He stated that he had been under-scored by Ms Burnside and Mr Preston.
5. 3.2 The claimant’s evidence in his witness statement challenged the scoring of both Ms Connolly and Mr Flanagan by stating that their marks had been given even where they had no, or limited experience, in the areas in question. However, the Tribunal noted that in cross-examination the claimant conceded that both candidates had more experience in each of the areas than the claimant had originally suggested and in some instances the experience was substantial and significant.
5. 3.3 The claimant further claimed that Ms Burnside had over scored Mr Flanagan for his experience in planning, stating that Mr Flanagan had limited or no experience in these areas. However, again in cross-examination the claimant conceded that Mr Flanagan had more experience in these areas than the claimant had originally suggested.
5. 3.4 In relation to Ms Connolly the claimant had a specific allegation that Mr Baird had treated Ms Connolly in a biased and preferential way. Mr Baird was Ms Connolly’s mentor and manager at work and was one of her nominated referees on her application form. Mr Baird agreed that in Ms Connolly’s interview he was aware that her answers sometimes fell short of what he knew to be her actual capabilities. The Tribunal found that he had scored Ms Connolly on the basis of his prior knowledge of her rather than on her answers at interview.
5. 3.5 The claimant also stated that Mr Baird had taken the claimant’s age into account in his assessment of the claimant’s answers at interview where he described the claimant’s answers as failing to meet his expectations given his “experience” and “background”. The claimant indicated that the fact that Mr Baird had this higher expectation of his performance than he had of the performance of the other candidates indicated that Mr Baird was taking the claimant’s age into account.
5. 3.6 However, the Tribunal found that on examination of Mr Baird’s evidence that his expectations of the claimant were related to the claimant’s previous specific work experience and not to the length of time the claimant had been doing that work, that he had been looking at the specific previous work context of each the candidates and comparing these and not comparing the length of time that any of them had been working.
6. SUBSEQUENT TO FIRST INTERVIEW
6. 1 On receipt by Ms Burnside of the PRS forms in relation to Ms Connolly and Mr Flanagan, Ms Burnside contacted the other panel members and advised them that Ms Connolly’s PRS was fine but that Mr Flanagan’s PRS was problematic. Accordingly, the respondents offered one of the posts to Ms Connolly on 17 March 2008.
6. 2 The respondent decided to hold a second interview on the basis that although there had been a clear first successful candidate in Ms Connolly there had been no clear second candidate. The respondent further stated that their decision was taken on the basis that the panel had not been unanimous in its choice of second candidate, that the results between the claimant and Mr Flanagan had been close and inconsistent between the interviewers. The respondents also decided that because the PRS forms for both the claimant and Mr Flanagan were of concern they would make no appointment at that stage but to move to second interview.
6. 3 Ms Gillian Mc Auley of human resources spoke to Mr Robin McCormick who agreed that as there was no unanimous choice of second candidate and that both candidates had negative performance issues that it would be appropriate to hold a second interview.
7. THE SECOND INTERVIEW
7.1 The Second PRS
7. 1.1 When the claimant had received no notification from the respondent subsequent to his interview before 18 March he contacted the respondents’ Human Resource Department. The claimant was subsequently contacted the following day to invite him for a second interview on 21 March 2008.
7. 1.2 The claimant stated that there were two aspects to the second interview that evidenced the respondent’s’ discrimination of him on the grounds of his age. The first of these was that Mr Flanagan had become aware of the contents of his PRS from his manager Mr Alistair Dawson ahead of the second interview. On the other hand the claimant had not been told prior to interview that a second PRS had been obtained for him from one of his other former managers, Mr Roger Henderson.
7. 1.3 Like his first PRS the claimant’s second PRS contained negative remarks about the claimant’s performance. The claimant stated that he was at a clear disadvantage at the second interview as Mr Flanagan was in a position to bring documents and evidence to his interview to refute Mr Dawson’s negative remarks but the claimant was not in a position to do the same at his second interview.
7. 1.4 Mr Flanagan stated to the Tribunal that he had come across his PRS quite by chance. This had occurred as a result of computer repairs being carried out in the office which had necessitated his line manager Mr Dawson using Mr Flanagan’s computer terminal in the interim. Mr Flanagan stated that on his return to his own computer terminal he discovered that Mr Dawson had left that terminal open at Mr Dawson’s desktop and that Mr Flanagan could not resist the temptation to click on a folder marked PRS and read the contents of his form.
7. 1.5 On the other hand Mr Dawson denied that he ever used Mr Flanagan’s computer in any such circumstances or at all and stressed that he kept all PRS forms in a secure folder and not on his desktop. In addition he stated that access to the secure folder would have required a security code.
7. 1.6 However it was clear that Ms Mc Auley knew that Mr Flanagan had become aware of the contents of his PRS prior to the second interview. Mr Flanagan had approached Ms McAuley on hearing that there was to be a second interview and sought to discuss the matter with her. Ms McAuley stressed to Mr Flanagan that she was unable to discuss the second interview with him as she was on the panel.
7. 1.7 Ms McAuley stated that Mr Flanagan had approached her in an agitated state, that she had sought to claim him down and had told him to focus on the upcoming interview. However, Ms McAuley went on to state that she had advised Mr Flanagan that if he had issues about the validity of the negative comments contained in his PRS that he could raise this matter as a separate issue after the interview had taken place.
7. 1.8 On the basis of the evidence before it the Tribunal remained sceptical of Mr Flanagan’s account of his obtaining his PRS form. The Tribunal accepted that a document as sensitive as a PRS was more likely than not to have been placed in a secure folder by a manager and that thus Mr Flanagan was unlikely to have been able to access his PRS form in the way described. In addition the Tribunal noted a degree of unease in the manner in which Mr Flanagan gave his evidence on this point which contributed to the Tribunal’s conclusion that Mr Flanagan’s account lacked conviction.
7. 1.9 In any event it was agreed by all parties that Mr Flanagan had possession of his PRS form prior to his second interview and was well prepared to deal with the questions that were put to him in relation to it.
7. 1.10 The claimant’s second PRS was written by Mr Henderson prior to the second interview. It Mr Henderson had managed the claimant five years previously and his comments were based on the claimant’s performance at that time. The PRS was not signed or dated and the claimant stated that he had never seen it.
7. 1.11 At the second interview both the claimant and Mr Flanagan were challenged on the negative comments that had been made about the performances in their respective PRS forms. Mr Flanagan successfully refuted the negative comments made of him by Mr Dawson with reference to documents he had brought with him to show that his performance had attracted a series of bonus enhancements.
7. 1.12 The Tribunal noted that although the claimant had not been given a proper opportunity to refute the comments in his PRS at his interview the claimant produced at hearing documentation on which he would have relied to do so. These included letters of commendation which lauded the claimant’s contribution to the respondents’ efforts in the Duke of Edinburgh Award Scheme and other charitable works. At hearing the claimant confirmed that he had no work related references or commendations to demonstrate that the negative comments in his PRS were invalid. Accordingly the Tribunal concluded that the contents of the claimant’s PRS remained unchallenged
7. 1.13 Further, during his second interview Ms McAuley noted that in his response to the negative comments in the PRS the claimant failed to recognise any failings on his own part, to take any ownership of, or responsibility for, the poor performance issues or indicate that he had identified learning points from his performance review. In fact Ms McAuley noted that the claimant had gone on to add that the faults noted against him in his PRS were in fact faults of his then manager.
7.2 Questions at the Second Interview
7. 2.1 The second aspect of discriminatory treatment at the second interview stage as alleged by the claimant was the fact that the panel removed questions in relation to the first two criteria relating to competency and IT knowledge and experience. The claimant stressed that as he had scored highly in relation to both these criteria and certainly more than Mr Flanagan the removal of them at the second interview advantaged Mr Flanagan given the fact that Mr Flanagan’s scores on IT and knowledge and experience at the first interview had been ascribed to him without his having been tested on these issues. The respondent accepted that this had been the case because Mr Flanagan’s first interview had outrun its allotted time and the panel had attributed scores to Mr Flanagan on the basis of his application form.
7. 2.2 However, the respondent stated that they had removed the questions in relation to these criteria on the basis that both candidates had “met the bar” in relation to them. The respondent stated that the questions asked focused on those competencies that fell to be tested as between the claimant and Mr Flanagan and on performance in particular.
7. 2.3 On the evidence before it the Tribunal concluded that the questions asked at the second interview had been chosen to probe the performance issues that had arisen in relation to both the claimant and Mr Flanagan.
8. AFTER THE SECOND INTERVIEW
8. 1 The claimant did not get the post, Mr Flanagan did. The claimant stated that, in her telephone conversation with him advising that he had been unsuccessful, Ms McAuley had suggested that the post in question would not fit into the claimant’s “lifestyle”. The claimant alleged that this was a reference to the fact that he was older than the successful candidates. Ms Mc Auley denied making this remark or any remark of the same ilk that could be construed as amounting to suggestion that the claimant would not “fit in” in any way or for any reason. The Tribunal could not agree with the claimant’s argument that a remark like this could be construed as being age related but in any event the Tribunal accepted Ms Mc Auley’s evidence on this point that no such remark had been made.
8. 2 At the hearing the respondent sought to rely on a series of documents that made up a “performance improvement plan” in relation to the claimant. This document had not been attached to the claimant’s second PRS form at the second interview. There was no suggestion that any of the interview panel members had seen it at that stage or discussed it. The respondent sought to rely on the document to indicate the extent of the respondents’ concerns about the claimant’s performance.
8. 3 The performance improvement plan ran to several pages. One half of each page set out a number of performance criteria and the second half of the page indicated three columns of scores. The first of these was self-assessment, the second was the line manager’s assessment and the third column was the agreed score. Other parts of the document had scores of four columns being self assessment, management assessment, agreed assessment, weighting and product after weighting. The performance scores indicated that the claimant’s self assessment marks consistently exceeded the assessments made of him by his manager.
8. 4 The claimant stated that he had never seen the performance improvement plan until it had been sent to him in discovery. The respondent contended that the claimant had seen the performance improvement plan on its completion as he was responsible for completing the first column entitled “self assessment.” However the first column scores were typed onto the document produced the respondents and the original document not produced. The Tribunal found therefore that that there was no evidence to confirm that the claimant had ever seen the document and attached very little weight to it.
9. THE LAW
The Tribunal considered the relevant statutory provisions and case law.
9.1 The Legislation
Age Discrimination
The Employment Equality (Age) Regulations (Northern Ireland) 2006 Article 7, Applicants and Employees.
7.─1 It is unlawful for an employer, in relation to employment by him at an establishment in Northern Ireland, to discriminate against person:-
(a) In the arrangements he makes in the purpose of determining to whom he should offer employment;
(b) In the terms in which he offers that person employment; or
(c) By refusing to offer or deliberately not offering him employment.
Article 3 Discrimination on Grounds of Age:-
3 ─ (1) For the purposes of these regulations, a person (“A”) discriminates against another person (“B”) if –
(a) On the grounds of “B’s” age a treats b less favourably than he treats or would treat other persons,
(2) A comparison of “B’s” case with that of another person under paragraph 1 must be such that the relevant circumstances in the one case, are the same or nor materially different in the other.
(3) In this regulation ─
(a) Age group means a group of persons defined by reference to age whether by reference to particular age or ranges of age;
(b) The reference in paragraph 1a to “B’s” age includes “B’s” apparent age.
9.2 The Case Law
The Tribunal also noted the relevant case law and in particular:-
Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332 EAT
Igen v Wong [2005] IRLR 258.
Shamoon v Chief Constable of the Royal Ulster Constabulary (2003) IRLR 285,
Chief Constable of West Yorkshire Police and West Yorkshire Police Authority v Home [2009] ICR 223
10. BURDEN OF PROOF
10. 1 The Tribunal also took into account the guidance on the Burden of Proof regulations as set out in the leading cases of Barton v Investec Henderson Crosthwaite Securities Ltd and Igen v Wong 2005 IRLR 258.
10. 2 In the Igen case, a sex discrimination case, the Court of Appeal set out the guidance to be used in applying the Burden of Proof regulations which also apply to age discrimination. These include the following;
10. 3 It is for the claimant who complains of discrimination to prove on the balance probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant which is unlawful (the relevant legislation is to be treated as having been committed against the claimant. These facts are referred to below as “such facts”
(1) If the claimant does not prove such fact he or she will fail
(2) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of discrimination. Few employers would be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be an intention but merely based on an assumption that (the claimant) “would not have fitted in”.
(3) In deciding whether the claimant proved such facts it is important to remember that the outcome of this stage of the analysis by the Tribunal will therefore usually depend on what inference it is proper to draw from facts found by the Tribunal.
(4) It is important to note the word “could”. At this stage the Tribunal does not have to reach a definitive determination that such facts would lead to the conclusion that there was an act of unlawful discrimination. At this stage the Tribunal is looking at the primary facts for it to see where inferences of secondary fact could be drawn from them.
(5) In considering what inferences or conclusions can be drawn from the primary facts, the Tribunal must assume that there is no adequate explanation for those facts.
(6) These inferences can include in an appropriate case any references that it is just inequitable to draw from an evasive or equivocal reply to questionnaire or any other questions.
(7) Likewise the Tribunal must decide whether any provision of any relevant Code of Practices relevant and if so take it into accounting determining such facts. This means that inferences may also be drawn from any failure to comply with any relevant codes of practice. When the claimant has proved facts from which conclusions could be drawn that the employer has treated the claimant less favourably on the grounds of (age) then the burden of proof moves to the employer.
(8) It is then for the employer to prove that he did not commit or, as the case may be, is not to be treated as having committed, that act. To discharge that burden it is necessary for the employer to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of (age) since “no discrimination whatsoever” is compatible with the burden of proof directive.
(9) That requires the Tribunal to assess not merely whether the employer as proved an explanation for the facts from which such inferences can be drawn but further that it is adequate to discharge the burden of proof on the balance of probabilities that (age) was not the ground for the treatment in question.
(10) Since facts necessary to prove an explanation would normally be in the possession of the respondent a Tribunal would normally expect cogent evidence to discharge that burden of proof. In particular the Tribunal will need to examine carefully explanations for failure to deal with a questionnaire procedure and/or a Code of Practice.
11. The Comparator
As stated above the claimant must establish that he has been treated less favourably than another person was treated or less favourably than another person would have been treated. Therefore a comparator may be a real person or a hypothetical person. The comparison must only be made where the relevant circumstances in the one case are the same or not materially different in the other.
The Tribunal took note of the guidance in relation to comparators in the sex discrimination case Shamoon v Chief Constable of the Royal Ulster Constabulary (2003)IRLR285, ”relevant circumstances” are those which the alleged discriminator takes into account when deciding to treat “B” as he does or when deciding to treat or would treat A.
In the recent case Chief Constable of West Yorkshire Police and West Yorkshire Police Authority v Homer [2009] ICR 223 of the Employment Appeals Tribunal confirmed that the guidance on comparators in the Shamoon case were relevant and to be applied to age discrimination cases.
12. THE TRIBUNAL’S CONCLUSIONS
12.1 Comparators
The First Interview
12.1.1 The Tribunal concluded that the comparators identified by the claimant are not appropriate in that neither meets the test of their circumstances being the same or not materially different. Both Ms Connolly and Mr Flanagan were current employees, internal candidates while the claimant was a former employee and was an external candidate with a particular type of experience about whom the respondent had prior knowledge of his previous poor performance within the respondent company. It was their prior knowledge of the claimant and an awareness of his previous poor performance that triggered the respondents to discount the claimant’s referees and obtain instead a previous PRS.
12.1.2 The Tribunal concluded that the comparator should have been a young, former employee with the same type of experience as the claimant about whom the respondents had prior knowledge of previous poor performance.
12.1.3 In identifying the correct comparator the issue for the Tribunal was whether the respondents would have treated that person in the same way as they treated the claimant. The Tribunal concluded that the claimant did not produce any evidence to show that the respondents would not have treated that person in the same way as they treated him.
12.2 The Second Interview
12.2.1 The Tribunal concluded that the comparator chosen by the claimant in this instance was appropriate. Mr Flanagan was a current employee who had knowledge of the concerns about his performance before the interview. The claimant was an external candidate who had knowledge of the concerns about his performance before the interview. The Tribunal concluded that the fact that Mr Flanagan was a current employee was not a materially different circumstance at this stage. In reaching this decision the Tribunal took into account the fact that when the claimant had been made aware of the concerns about his performance in the first interview he had told the respondent that they could go to any of his other managers and they would get a good PRS for him. The claimant did not seek to rely on his references or seek to ensure that they would be taken up prior to the second interview.
12.2.2 It was therefore for the claimant to show that he had been less favourably treated than Mr Flanagan on the ground of his age. The less favourable treatment was the fact that Mr Flanagan had been appointed to the post where the claimant had not. However the Tribunal concluded that the claimant failed to produce any evidence that this treatment had been on the ground of his age.
12.2.3 However the Tribunal additionally took account of the fact that the claimant had performed badly at this second interview and concluded that this had been the reason for the difference in treatment between the claimant and Mr Flanagan. There were two aspects to the claimant’s poor performance at the second interview. The first of these was the fact that both the claimant and Mr Flanagan were aware prior to the second interview that the respondents had concerns about their performance. The second interview was designed to examine these performance issues further. Mr Flanagan addressed the performance issues ahead of the interview and was well prepared to deal with them at interview. The claimant, on the other hand had not only directed the respondents to obtain a second PRS from any of his other previous managers, he failed to take any other steps to ensure that he could properly address these performance concerns at the second interview. Accordingly the claimant was not prepared to deal with the performance concerns and performed badly.
12.2.4 The second aspect of the claimant’s poor performance at the second interview was the content of his response to the panel’s work-related performance concerns. The Tribunal took into account the fact that the claimant not only disputed the adverse comments about his performance but sought to ascribe his poor performance behaviours onto his manager. This contributed to the panel’s view that the claimant had not properly addressed the concerns they had about his work performance and their decision not to appoint him to the post.
In light of these conclusions the Tribunal concluded that the claimant had not been discriminated against on the ground of his age and that his claim should fail.
Chairman:
Date and place of hearing: 5 May, 7-15 May 2009, Belfast
Date decision recorded in register and issued to parties: