Industrial Tribunals Northern Ireland Decisions

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Cite as: [2010] NIIT 7357_09IT, [2010] NIIT 7357_9IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 7357/09

CLAIMANT: David Davidson

RESPONDENT: The Chairman and Secretary in a representative capacity for the Committee for the time being of the Ballymena Services Club

DECISION

The unanimous decision of the tribunal is that the respondent unlawfully discriminated against the claimant on grounds of his sex and age in the arrangements for and the appointment of club steward and awards the claimant compensation totalling £3,446.98.

The title of the respondent is amended to the Chairman and Secretary in a representative capacity for the Committee for the time being of the Ballymena Services Club.

Constitution of Tribunal:

Chairman: Ms Julie Knight

Members: Dr Carol Ackah

Mr James McKeown

Appearances:

The claimant was represented by Mr Neil Gillam of Donnelly and Kinder Solicitors.

The respondent was represented by Mr Joe Kennedy, Barrister-at-Law, instructed by Samuel Cumming and Son Solicitors.

Issues

1. The issues to be determined by the tribunal were:

i. Whether the claimant was subjected to unlawful discrimination on the grounds of his age and/or sex in the arrangements made to fill the position of club steward and in not appointing him to the post.

ii. The claimant withdrew at hearing his complaints of victimisation and indirect discrimination on grounds of sex and or age.

iii. An issue arose concerning the correct title of the respondent. The tribunal had a concern that, as the claimant is a member of the committee of the Ballymena Services Club, specific members of the committee should be nominated to act in a representative capacity on behalf of the respondent club for the purposes of these proceedings. The tribunal reconvened the hearing to enable the parties’ representatives to address it on this issue, and the tribunal further adjourned the hearing to enable the parties’ representatives to take further instructions and see whether an agreed position could be reached. It was subsequently indicated at a Case Management Discussion on 5 November 2010 that it was not possible for the parties to reach agreement and further submissions were made by the parties. It was agreed that it was unnecessary for the hearing to be reconvened again before the full panel and the parties’ representatives were content that the tribunal should reach a decision on this issue on the basis of the evidence previously given and the submissions of the parties’ representatives.

Sources of Evidence

2. The tribunal heard the evidence of the claimant, Mr David Davidson and his witness Mr John Morrison and from the respondent’s witnesses, Mr Mervyn Robinson, Mr William Kilfedder and Mr Alastair Bell. The tribunal also took into account documentation to which it was referred by the parties representatives during the course of the hearing contained in an agreed bundle of documentation.

Findings of Fact

3. Having considered all the evidence the tribunal made the following relevant findings of fact:

3.1 Ballymena Services Club was established for ex servicemen and women in 1954 and currently has approximately 600 members. The property of the Ballymena Services Club is vested in Trustees while an elected committee is responsible for the day to day running of the business of the club, including the recruitment of staff. Mr Robinson was elected to the position of Honorary Secretary in 2007 and Mr Bell is the elected Chairman. Both of these are voluntary roles. The Honorary Secretary and Chairman act as line managers to the one full time member of staff, namely the club steward, and four part-time, long serving, members of staff. The claimant Mr David Davidson, at the relevant time was a 55 year old, ex member of the armed forces. The claimant is a member of Ballymena Services Club and is a member of the committee.

3.2 The Bar Steward, a Mr S, himself an ex serviceman, was appointed to his position in December 2008 and prior to that had been employed by Ballymena Services Club for approximately twenty years. Concerns arose about his ability to perform his duties in a satisfactory manner. Specifically, it was felt that he struggled with the accounts, figures and tallying up cash in the tills, that he lacked customer care skills and that he failed to answer the phone properly and did not take proper phone messages and pass them on to the appropriate person. After a performance review, Mr S’s probationary period was extended for a further three months to enable him to improve. However at the end of this period Mr Robinson considered his performance was still unsatisfactory.

3.3 The Bar Steward’s position was discussed under “Any Other Business” on the agenda at the committee meeting on 20 May 2009. Mr Robinson reported that there had been no improvement in Mr S’s performance and recommended that his employment should be terminated and the recruitment of a replacement. There followed an exchange of comments between some of the committee members about the type of person who should get the job which included that a “friendlier face” was needed and “a women might be nice behind the bar”. Mr Morrison confirmed that there was some “light hearted banter” and “humorous comments” from unidentified committee members as to the attributes of Mr Scott’s replacement and candidly admitted saying himself, “What we need is an 18 year old Scandinavian blonde” or words to that effect. The tribunal did not accept the claimant’s evidence that that Mr Kilfedder made a comment that “What was needed was a young big busted female to attract members to the bar”. However Mr Kilfedder’s recollection was that comments were made about who should be appointed including something about a “European lady or girl”. The tribunal considered that there was exaggeration on the part of the claimant but accepted that there was an exchange of comments between committee members relating to both the sex and age of the potential replacement. Both Mr Robinson and Mr Bell denied having heard any of these comments. The tribunal was unable to accept this having considered the evidence about the seating layout and size of the room and their proximity to the committee members present. Mr Bell told the tribunal that he did not hear the comments as he is hard of hearing. The tribunal noted that comments were made before the business of the meeting concluded and there was no suggestion that either Mr Bell or Mr Robinson had any difficulty in hearing at any other stage of the meeting.

3.4 The matter was discussed by the committee again at its June 2009 meeting when a final decision was made to dismiss Mr S. Mr Robinson and Mr Bell were delegated responsibility to communicate this decision to Mr S and to make arrangements for the recruitment of a new bar steward. Neither Mr Bell nor Mr Robinson had any formal training in recruitment and selection procedures. It was decided to carry out the recruitment exercise without the assistance of a recruitment agency because they wished to avoid the expense of not inconsiderable agency costs. Mr Robinson told the tribunal that he wished to move away from the previous recruitment practice of “tapping someone on the shoulder” and appointing someone from the Club. The position of bar steward was advertised in the Ballymena Times and Ballymena Guardian and a notice was placed on the club notice board, inviting candidates to apply in writing to the Honorary Secretary. There was no standard application form and no other information was provided to prospective candidates about the post. A job description for the position, previously drawn up by the Labour Relations Agency, was not provided to candidates.

3.5 The claimant told Mr Robinson that he was interested in the post and Mr Robinson agreed not to close the date for applications until the claimant’s return from holiday so that his application could be considered. The claimant temporarily stood down from the Committee for the duration of the recruitment exercise. The claimant sent his letter of application on 1 July 2009 enclosing proof of his qualifications and a letter of commendation from the Equerry to the Duke of York. On balance the tribunal did not accept the claimant’s evidence that the documentation accompanying his letter of application included a certificate of an IT qualification or that this was available at the interview.

3.6 There were fourteen applications for the position, ten of which were from males and four from females. It was not possible to ascertain the ages of all the candidates from the documents. Mr Robinson told the tribunal that the only short listing criterion applied by him and Mr Bell was geographical, in that the candidate should live locally to the Club so that they would be able to deal with the alarm if it went off at night. However during the course of the evidence it transpired that some candidates were not shortlisted as informal enquiries with club members revealed that they may have had loyalist paramilitary connections. Six candidates were shortlisted for interview, three males, including the claimant, and three females, including the successful candidate.

3.7 The interviews were scheduled to take place on the evenings of 27, 28 and 30 July 2009. Mrs T and Mrs J were interviewed on 27 July. Mrs T withdrew her application at interview when she learned of the hours involved. Mrs J, who already held a part-time post with the respondent, indicated that she intended to apply for another post nearer to where she lived. Although her interview was completed, Mr Bell and Mr Robinson told the tribunal that they inferred from what she said, that she no longer wished to be considered for the position. The successful candidate, Ms B, a 28 year old female, was interviewed on 28 July 2009. The two other shortlisted male candidates were scheduled to be interviewed on 29 July 2009 but failed to attend. The claimant was interviewed on the evening of 30 July 2009. Effectively therefore the competition for the post was between the claimant and Ms B.

3.8 Mr Robinson drew up a list of questions to be asked of each shortlisted candidate at interview. The format of the interview was that Mr Robinson asked the questions of each candidate and afterwards Mr Bell asked whether the candidate had any questions and then showed them around the club. Mr Bell’s written notes were made available to the tribunal together with the list of interview questions. Mr Bell told the tribunal that he made his notes during the course of the interview as each of the candidates gave their answers. Mr Bell’s notes do not appear in any way to correlate to the order in which the interview questions were asked. The tribunal concluded that Mr Bell’s notes were more likely to have been compiled after the interviews had concluded rather than being a contemporaneous record of the answers given by the candidates.

3.9 Mr Robinson did not make any notes of the answers given by the candidates. He awarded marks out of ten to each candidate on a scoring sheet under separate headings: ‘Qualifications; Personality; “Can Do attitude”; Experience; Telephone; Cash handling; and Communication skills’. The marks for all candidates were marked on the same scoring sheet. All questions were equally weighted. Mr Bell did not have a scoring sheet and did not award any marks. Mr Robinson was unable to explain how he allocated marks under each heading according to the answers given by the candidates to the questions. Mr Robinson told the tribunal that he entered the marks during the course of the interviews. However in awarding marks under the headings of “Qualifications” and “Experience”, Mr Robinson took into account information provided by the candidates in their written applications as well as their answers to the questions.

3.10 Both Mr Robinson and Mr Bell told the tribunal that the successful candidate and the claimant performed well at interview. The claimant was awarded a total of 51 marks compared with the 54 marks awarded to the successful candidate. They were awarded identical marks under four out of the seven headings. However the successful candidate was awarded 9 marks under the headings “Qualifications” and “‘Can do’ attitude” whereas the claimant was awarded 7 under each of these headings. The claimant received 8 marks under the heading “Experience” whereas the successful candidate was awarded 7 marks.

3.11 Ms B was awarded 9 out of 10 and the claimant 7 out of 10 for qualifications. Mr Bell and Mr Robinson told the tribunal that they considered that credit should be given to the fact that the successful candidate had attained a Second class BA Honours Degree in Film and Media studies and an NVQ in Animal Care, although they conceded that the subject matter of these courses was not directly relevant to the position of Bar Steward. The claimant has a certificate of qualification from the Army School of Catering, Aldershot in which the claimant attained a pass grade in the Mess Supervisors’ course and a Level Two award in Food Safety and Catering issued by the Chartered Institute of Environmental Health. During his evidence Mr Robinson belittled the claimant’s qualifications, although the tribunal was of the view that these were clearly relevant to the position applied for, in that he suggested that the qualifications would have been awarded by the army simply by the claimant turning up for the course. The tribunal noted that the claimant was awarded the same mark for his qualification as the other two female candidates even though there was no evidence that they had any formal qualifications at all.

3.12 The successful candidate was awarded 9 out of 10 for her “Can do” attitude whereas the claimant was awarded 7 marks. Mr Robinson had difficulty in recalling the answers given either by the successful candidate or the claimant under this heading. However both Mr Robinson and Mr Bell were impressed with the successful candidate’s “extremely positive attitude” that nothing was going to be a problem for her. During the interview Mr Robinson was “a bit concerned does this girl really realise what she is taking on?” but was reassured by her “standard answer” that “nothing would be a problem.”

3.13 The claimant was awarded eight out of ten for his experience whereas the successful candidate was awarded seven out of ten. The claimant had 15 years’ experience as a mess caterer in the Army. His role included housekeeping, stock and cash control, function planning and maintaining and running the bar in the Sergeants’ Mess. He left the army in 1994 and took up a position as steward in the Officers’ Mess in the military wing of Musgrave Park Hospital, Belfast for five years before becoming Deputy Mess Supervisor in Saint Patrick’s Barracks in Ballymena. His employment finished in 2007 when the depot closed. The successful candidate listed her professional experience on her CV as working as a bar tender in 2009 serving customers, changing barrels and operating the cash register, keeping the bar area clean and functional and collecting and washing glasses and waitressing. In 2007-2009 she worked as a farm hand at a cattle station in Australia and her duties included cattle work, mustering on horseback, updating farm accounts on computer, fencing and painting the house. She had also worked on a newspaper in London.

3.14 Mr Robinson suggested that the claimant was only awarded one more point under the heading of experience than the successful candidate because “someone with six months’ experience working behind a bar would be able to pick up the other duties of the post. Mr Robinson asserted that as the part-time staff had been there for over 20 years they “don’t need a lot of supervising”. On this basis he did not consider that the differential in marks awarded to Ms B and the claimant should be greater under the heading of experience.

3.15 Mr Bell and Mr Robinson met the day following the claimant’s interview. They discussed the score sheet. Mr Bell agreed with the marks awarded by Mr Robinson. They considered Mr Bell’s written notes and the application forms. On this basis the appointment of Ms B was recommended to and received approval from the committee at its meeting on 6 August 2009. Mr Robinson told the tribunal that it was a tough decision to make because he considered that both candidates were very good and that it was a pity that the club could not afford more than one full-time post.

3.16 Mr Robinson informed the claimant by letter of 7 August 2009 that his application was unsuccessful. The claimant wrote requesting reasons for his non appointment and subsequently wrote on 23 August to Mr Robinson advising that he considered that he may have been discriminated against on grounds of gender and because he had not been popular with certain members of the committee in the past. There was evidence before the tribunal of a previous disagreement between the claimant and certain committee members concerning comments made by the claimant at the Annual General Meeting held on 16 April 2008, however both the claimant and Mr Bell and Mr Robinson were agreed that this matter had been resolved and was not an ongoing issue at the time of the recruitment exercise.

3.17 The claimant is currently employed in a security firm as a security officer and earns less that he would have had he been appointed to the position of bar steward with the respondent. An agreed schedule of loss was presented to the tribunal. The claimant frankly told the tribunal that his non-appointment did not really have an effect on him except that he felt “disappointed” because he really wanted the job and that it had hit his confidence. He told the tribunal that he had not applied for any other posts because he felt that other prospective employers would overlook him because of his age. The claimant served statutory questionnaires on 5 November 2009 pursuant to the Employment Equality (Age) Regulations (Northern Ireland) 2006 and the Sex Discrimination (Northern Ireland) Order 1976 as amended. The Club did not have written equal opportunities policy or a recruitment policy. The tribunal was concerned that the replies given by the respondent through its solicitor to the statutory questionnaire were worded in such a way as to suggest that the Club did have formal written policies when this was not the case. The claimant lodged a complaint of unlawful sex and age discrimination to the industrial tribunal on 3 November 2009 contending that he was less favourably treated that the successful candidate who is a female and who is a younger female. Replies were served on behalf of the respondent on the 8 December 2009.

Law

4. Article 3(1)(a) of the Sex Discrimination (Northern Ireland) Order 1976 as amended (“the 1976 Order”) provides: “In any circumstances relevant for the purposes of any provision of this Order, other than a provision to which paragraph 2 applies, the person discriminates against a women if:

(a) on the ground of her sex he treats her less favourably that he treats or would treat a man.”

The provisions of Parts III and IV of the 1976 Order relating to sex discrimination against women, are to be read as applying equally to the treatment of men.

Part III of the 1976 Order deals with discrimination in the employment field.

Article 8(1) makes it “unlawful for a person in relation to employment by him at an establishment in Northern Ireland, to discriminate against (a man)

(a) in the arrangements he makes for the purposes of determining who should be offered that employment...”

Regulation 3 of the Employment Equality (Age) Regulations (Northern Ireland) 2006 (“the 2006 Regulations”) provides:

(1) “For the purpose of these regulations a person (A) discriminates against another person (B) if -

a. on the grounds of B’s age, A treats B less favourably than he treats or would treat other persons and A cannot show the treatment or, as the case may be, provision criterion or practice to be a proportionate means of achieving a legitimate aim.”

Burden of Proof

Article 63A of the 1976 Order sets out the burden of proof in the industrial tribunal.

“(1) This Article applies to any complaint presented under Article 63 to an industrial tribunal.

(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent -

(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part III, or

(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination against the complainant,

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

The burden of proof in age discrimination cases is set out at Regulation 42 (2) and is in almost identical terms of the 1976 Order as set out above.

The tribunal considered and applied the guidance of the Court of Appeal in the case of IGEN Limited and others v Wong, Chamberlin Solicitors and another v Emokpae, Brunel University v Webster 2005 IRLR 258. The Court of Appeal ruled that the guidance issued by the EAT in Barton v Investec Henderson Crosthwaite Securities Ltd in respect of sex discrimination cases, which has been applied in relation to race and disability discrimination, would be applied in amended form as set out below:

(1) Pursuant to section 63A of the 1975 Act, it is for the claimant who complains of sex discrimination to prove on the balance of 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 by virtue of Part 2, or which, by virtue of section 41 or section 42 of the 1975 Act, is to be treated as having been committed against the claimant. These are referred to below as "such facts".

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

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

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

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

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

(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 74(2)(b) of the 1975 Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within section 74(2) of the 1975 Act.

(8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and, if so, take it into account in determining such facts pursuant to section 56A(10) of the 1975 Act. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

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

(10) 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.

(11) 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 sex, since "no discrimination whatsoever" is compatible with the Burden of Proof Directive.

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

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

The tribunal was referred to a number of other legal authorities: Laing v Manchester City Council 2006 IRLR 48, Madarassey v Nomura International PLC [2007] EWCA CIV 33; Nagarajan v London Regional Transport [1999] IRLR 172; Curley v Chief Constable of the Police Service of Northern Ireland [2009] NICA 8; Chief Constable of the Royal Ulster Constabulary and Assistant Chief Constable AH v Sergeant A [2000] NICA 29; Anya v University of Oxford [2001] IRLR 377; Law Society v Bahl [2003] IRLR 640; Vento v Chief Constable of West Yorkshire Police (No 2) 2003 IRLR 102; Da’Bell v NSPCC 2010 IRLR 19.

Conclusions

5. The tribunal had to determine whether the claimant was subjected to less favourable treatment than the younger female successful candidate in the arrangements made to fill the post and in not being appointed to the position of Bar Steward.

5.1 The tribunal did not accept that the claimant was subjected to any detriment at the shortlisting stage of the recruitment exercise as he was in fact shortlisted. The tribunal rejected submissions made on behalf of the claimant that it could properly draw an inference of unlawful discrimination arising out of the manner in which the respondent did not shortlist other applicants.

5.2 The tribunal went on to consider the arrangements made after the shortlisting for the interviews and the process leading to the appointment of Ms B. The tribunal took into account the following matters in deciding whether the claimant had established facts from which it could infer, at this stage without explanation from the respondent, that he had been subjected to unlawful discrimination on the grounds of either sex age or both. The tribunal is mindful that it is not sufficient for the claimant to establish a difference in treatment but that he must establish less favourable treatment. The tribunal was satisfied that the successful candidate was the correct statutory comparator.

5.3 The tribunal had a general concern that there was no logical rationale as to how marks were allocated to the answers of the candidates to the questions asked during the interview, under the various headings on the scoring sheet. It is also clear that qualifications and experience were scored on the basis of information on the application letters and not just answers given at the interview. Neither Mr Robinson nor Mr Bell had training in recruitment procedures and the respondent does not have formal equal opportunities and recruitment policies and procedures. The tribunal did consider that the respondent’s response to the statutory questionnaire was incorrect and therefore misleading in this regard.

5.4 The tribunal noted that under “qualifications” the successful candidate was awarded two marks more than the claimant because she had a degree even though it was conceded on behalf of the respondent it was not related to the post. The tribunal accepted that the respondent was entitled to give credit to an applicant who had completed a university degree however it also considered that the claimant’s qualifications were directly relevant to the post.

5.5 The claimant was awarded only one point more for “experience” than the successful candidate even though, on any objective assessment, he had more relevant experience than the successful candidate. It was submitted on behalf of the respondent that the successful candidate had a sufficient degree of experience for the post and that the claimant’s greater experience therefore did not justify a greater differential in marks. However the tribunal noted that the respondent did not similarly consider that the claimant had demonstrated sufficient qualifications for the post and indeed Mr Robinson belittled the claimant’s qualifications. The tribunal considered that this revealed an inconsistency of approach to the allocation of marks under the two different headings, which favoured the successful candidate, to the detriment of the claimant.

5.6 It was submitted on behalf of the respondent that the claimant had not established that he would have been appointed to the post had he been allocated more marks in the scoring exercise for his experience and that the successful candidate had clearly been impressive at the interview. The successful candidate was awarded a higher score than the claimant under the heading “can do attitude”. The tribunal concluded that the score awarded to the successful candidate under this heading was based on subjective impressions as opposed to any demonstrated objective assessment of the answers given by the candidates. There is no contemporaneous record of the answers given by the claimant and Ms B. The recollection of the respondent’s witnesses of the responses of the claimant and the successful candidate was vague, although it was conceded that the claimant also performed well at interview. It appeared to the tribunal that Mr Robinson had formed a disposition towards the successful candidate, prior to the claimant’s interview. The tribunal was satisfied on a balance of probabilities that there could have been a different outcome had there been an objective and rational scoring system.

5.7 The tribunal considered these matters in the context of events leading up to the recruitment exercise. It took into account that the previous incumbent in the post, an older male, had failed to perform satisfactorily and lacked social skills. The comments made at the committee meeting suggested that committee members were favourably disposed towards the appointment of a young woman to the position. The comments made were both gender and age specific. The tribunal was satisfied that in spite of their denial, Mr Robinson and Mr Bell did hear these comments. It was submitted on behalf of the respondent that this was not a case where the claimant would not have “fitted in” and that some special feature was required in a case where persons carrying out the alleged discriminatory act are themselves older men. In this case the tribunal consider that the comments made at the meeting were such a “special feature” and that they point to the reason why the successful candidate was treated more favourably than the claimant. The tribunal considers that it can properly infer that these comments did influence both Mr Robinson and Mr Bell in the recruitment arrangements and the appointment made.

5.8 The tribunal was satisfied that the claimant had established facts from which it could infer that he was less favourably treated on grounds of both his sex and age. The burden therefore shifts to the respondent to prove that it did not commit or, as the case may be, is not to be treated as having committed the act of discrimination. The tribunal has found as a fact that Mr Robinson and Mr Bell did hear the comments made during the May 2008 meeting and were influenced by these comments during the appointments process. The tribunal therefore determines that the respondent did not discharge its burden and finds that the claimant was subjected to less favourable treatment than the successful candidate on the grounds of his sex and age.

5.9 The tribunal was satisfied, having considered the representations of the parties’ representatives that the title of the respondent should be amended to the “Chairman and Secretary in a representative capacity for the Committee for the time being of the Ballymena Services Club”.

Remedy

5.10 The claimant sought compensation for the difference in loss of earnings between the date of appointment and the date of hearing and future loss of earnings for ten years up until his date of retirement. The agreed annual difference in earnings is £1,995.16. It was submitted for the claimant that had he been appointed to the position he would have had a reasonable expectation of remaining in post until his retirement. The tribunal did not accept that it would be just and equitable to award compensation on this basis in circumstances where the claimant admitted that he had not taken any steps to mitigate his loss. In deciding the appropriate measure of compensation, the usual tortious principles apply and the tribunal did not consider the evidence supported a scenario that the claimant had suffered such a blow to his confidence that he was incapable of applying for better paid work than his current post. The tribunal considers therefore that it is just and equitable to award the claimant £1,727.32 in respect of the difference in earnings he would have received had he been appointed to the position from the date of the act of discrimination until the date of the hearing which is 316 days.

The tribunal is further satisfied that it is just and equitable to award the claimant compensation for injury to feelings and that the appropriate level of award under this head lies at the lower end of the lower band of Vento (as updated by Da’Bell). The tribunal awards £1,500.00 in respect of injury to feelings. In reaching this conclusion the tribunal takes into account the claimant’s evidence that he was not really affected.

5.11 The tribunal considered that interest should be awarded pursuant to the Industrial Tribunals (Remedies) Order (Northern Ireland) 1995 and that the interest on the award should be as follows:

On Loss of Earnings

In relation to the award for pecuniary loss the Tribunal concluded the interest should be calculated from the mid point date, namely 6 March 2010 to the date of calculation, namely 4 October 2010. (212 days) £80.26

On Injury to Feelings

6 August 2009 to the date of calculation 4 October 2010

£1,500.00 x 8% £139.40

TOTAL AWARD £3,446.98

5.12 This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (NI) 1990.

Chairman:

Date and place of hearing: 28, 29, 30 June 2010 and 4 October and 11 October

2010.

Date decision recorded in register and issued to parties: