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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Crilly v Ballymagroarty Hazelbank Commu... [2011] NIIT 00242_11IT (31 October 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/00242_11IT.html
Cite as: [2011] NIIT 242_11IT, [2011] NIIT 00242_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 242/11
CLAIMANT: Nuala Crilly
RESPONDENT: Ballymagroarty Hazelbank Community Partnership
Certificate of Correction
The words “legitimate aim” should be substituted for the words “illegitimate aim” at paragraphs 10 and 15 of the decision.
Chairman:
Date: November 2011
THE INDUSTRIAL TRIBUNALS
CASE REF: 242/11
CLAIMANT: Nuala Crilly
RESPONDENT: Ballymagroarty Hazelbank Community Partnership
DECISION
The unanimous decision of the tribunal is that the claimant suffered indirect sex discrimination and awards compensation in the sum of £14,677.
Constitution of Tribunal:
Chairman: Mrs Ó Murray
Members: Ms M Galloway
Mr J Boyd
Appearances:
The claimant was represented by Ms S Bradley, Barrister-at-Law instructed by the Equality Commission.
The respondent was represented by Mr G Grainger, Barrister-at-Law instructed by Worthingtons Solicitors.
The Claim
1. The claimant’s claim was for indirect sex discrimination due to failure to shortlist her for the post of Neighbourhood Regeneration Officer advertised by the respondent in October 2010.
2. It was agreed between the parties that the disputed essential criterion for short listing for the post stated as follows:
“A 3rd level qualification in a relevant discipline with 2 years’ relevant experience in a community development capacity (paid) gained within the last 5 years.”
The specific part of the criterion under scrutiny in this case is the stipulation of a five- year period. It was agreed that the stipulation of the five years is the provision criterion or practice (PCP) applied in this case.
3. It was not disputed that the claimant’s circumstances were that she had a six-year break from paid work due to her child caring responsibilities. It was also not in dispute that the claimant, during that period, had continuing, extensive, high-level involvement in the voluntary sector in the area of community development and neighbourhood regeneration.
4. The claimant did not dispute the requirement for paid work experience but her contention was that the restriction to a five-year period had a disproportionate adverse impact on women and could not be justified.
5. The respondent disputed disproportionate adverse impact and raised the defence of justification.
The issues
6. The issues for the tribunal were as follows:
(1) Did the application of the PCP place women at a particular disadvantage compared with men?
(2) Did the claimant suffer actual disadvantage due to the application of the PCP?
(3) What is the composition of the pools for comparison (if required)?
(4) Was the use of the PCP justified in that it was a proportionate means of achieving a legitimate aim?
Sources of Evidence
7. The tribunal heard evidence from the claimant on her own behalf. The tribunal also heard evidence from Miss Francine Moran and Mrs Margaret McCann who were members of the respondent’s Board involved in the short-listing process and in devising the short-listing criteria. Evidence was also given by Mr Martin Gallagher, the current Manager in the respondent organisation. The tribunal also had statements from the witnesses and an agreed bundle of documentation.
The Law
8. The claimant referred the tribunal to the following authorities:
1. Karim v Laura Ashley (Case Ref No 1977/10 NI IT) para 19
2. Edwards v London Underground (No 2) 1997 IRLR EAT 157 and on appeal
3. London Underground v Edwards (No 2) 1998 IRLR EWCA 364 (612.1)
4. Thomas McCausland v Dungannon District Council – Kelly L J (unreported 30 June 1993)
5. Cadman v Health and Safety Executive (2006) IRLR 969 980
6. Alexander v Home Office 1998 IRLR 190
7. Zaiwalla & Co & Another – v – Walia 2002 IRLR 697
9. The respondent refer the tribunal to the following list of authorities:
1. Allonby – v – Accrington and Rossendale College and Others [2001] ICR 1189, CA
2. Grundy – v – British Airways PLC [2008] IRLR 74
3. University of Manchester v Jones 1993 ICR 474, CA
4. Greater Manchester Police Authority v Lea 1990 IRLR 372 EAT
Text:
5. IDS Handbook Sex Discrimination – March 2008 Pages 68-71.
10. The Sex Discrimination (NI) Order 1976, as amended, provides as follows:
“Article 3 (2)(b) in any circumstances relevant to the purposes of a provision to which this paragraph applies, a person discriminates against a woman if –
he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but –
(i) which puts or would put women at a particular disadvantage when compared with men,
(ii) which puts her at that disadvantage, and
which he cannot show to be a proportionate means of achieving an illegitimate aim.
11. The following is a list of the principles derived from the case law relevant to this case.
12. First the tribunal must identify the pool for comparison if it decides to use pools to assess disparate impact. The claimant may select a pool but the tribunal need not accept it. The tribunal should select a pool that would “realistically and effectively” test the particular allegation. The starting point is the whole of the group to which the PCP applied, ignoring any impugned criterion.
13. Next the tribunal must look at whether the PCP had a disparate impact on the protected group to which the claimant belonged.
14. The next step is to identify whether the claimant suffered an actual disadvantage due to the application of the PCP.
15. If the claimant establishes disparate impact and personal disadvantage, the burden of proof shifts to the respondent to show the justification defence. It is for the respondent to prove that the use of the PCP was an proportionate means of achieving an illegitimate aim in that it was appropriate and necessary in the circumstances. The tribunal must balance the employer’s need to achieve the illegitimate aim against the discriminatory effect on the claimant and those in her group.
16. The case of University of Manchester v Jones 1993 CA cautioned tribunals to avoid placing artificial limitations on the scope of the pool and indicated that it should comprise all those persons, male and female, who satisfied, or would satisfy, all the relevant criteria apart from the PCP in question. Identifying the numbers of men and women who could comply with the PCP was insufficient. The correct analysis required the tribunal to look further at the relative proportions of men and women who could comply, in relation to the total numbers of men and women to whom the PCP was or would be applied. This was the approach adopted by the NICA in the McCausland case.
17. The case of Greater Manchester Police Authority v Lea 1990 EAT dealt with the issue of imperfect statistics where the EAT accepted that statistical perfection was not required.
18. In the Edwards (No 2) case, the Court of Appeal remarked per Lord Justice Potter:
“[a]
tribunal does not sit in blinkers. Its members are selected in order to have a
degree of knowledge and expertise in the industrial field generally. The high
preponderance of single mothers having care of a child is a matter of common
knowledge”.
19. This principle is particularly apposite in this case where the tribunal relies to some extent on its general knowledge of the working population and the experience of women in taking breaks from work. In using our general knowledge to reach a conclusion on this point, we have taken cognisance of the fact that such “matters of common knowledge” are fluid and can change as society changes and traditional roles in relation to childcare change. However, in this case, the up-to-date statistics in relation to the general population support our general knowledge of women’s current experience in this area.
20. In the case of Allonby the Court of Appeal stated that the choice of pool must be logically defensible. The identification of the correct pool is a mixed question of fact and law and it is possible for there to be more than one potential pool available for selection.
21. In Grundy v British Airways 2008 Sedley LJ stated:
“The correct principle in my judgment is that the pool must be one that suitably tests the particular discrimination complained of, but this is not the same thing as the proposition that there is a single suitable pool for every case. In fact one of the striking things about both the race and sex discrimination legislation is that, contrary to earlier expectations, three decades of litigation have failed to provide any universal formula for locating the correct pool, driving tribunals and courts alike to the conclusion that there is none”.
22. The tribunal must also keep in mind that the members of the pool must possess the same relevant circumstances when deciding the characteristics of the individuals to be placed in the pool.
23. The case of Cadman is an ECJ decision in 2006 and relates to the defence of justification. The ECJ stated as follows:
“The justification given must be based on a legitimate objective. The means chosen to achieve that objective must be appropriate and necessary for that purpose”.
24. In the Zaiwalla case an award of £7,500.00 aggravated damages was upheld. The circumstances were exceptional and were outlined in the tribunal decision as follows:
“When she took tribunal proceedings a monumental amount of effort was put into defending those proceedings. That exercise was of the most inappropriate kind, attacking the applicant in relation to her personal standards of professional conduct and holding a series of threats over her head which would be daunting to any individual let alone to someone about to embark on a legal career having difficulty obtaining a training contract. The defence of these proceedings was deliberately designed by the respondents to be intimidatory and cause the maximum unease and distress to the applicant. There is no other way of describing it”.
25. The EAT stated at paragraph 24:
“If a respondent misconducts himself in the defence of a discrimination case, it may amount to victimisation of the applicant in respect of the protected act of bringing the claim … In the sort of case which we are considering here it is preferable that where there is misconduct of sufficient gravity it is compensated by the tribunal which is seized of the matter and which has the feel for the aggravating material and its effect on the victim”.
26. Mr Justice McKay at paragraph 28 stated as follows:
“We are sensitive to the possibility that over enthusiastic litigants and litigants in employment tribunals may be tempted to read our conclusions in a way which would give the green light to claims for aggravated damages in respect of alleged misconduct in the defence of proceedings almost as a matter of routine. They would be wrong to do so. The findings of fact in the present case … were exceptional in their assessment of the litigation misconduct. We expect that cases attracting awards of aggravated damages for such behaviour will be few and far between”.
27. It is settled law that the test for awarding aggravated damages is whether the respondent acted in a high-handed, malicious, insulting or oppressive manner or that the respondent conducted the defence of the proceedings in an inappropriate way in the sense outlined in the Zaiwalla case.
Findings of Fact and Conclusions
28. Both sides provided written submissions supplemented by oral submissions and comments on each other’s submissions at the hearing. The tribunal took careful account of all the submissions, to the parts of Harvey and the IDS Handbook to which we were referred, and to the relevant case law in making the following findings of fact and in reaching the following conclusions by applying the law to the facts found.
29. The respondent is a voluntary organisation which promotes regeneration in a particular geographical area in Londonderry. It is a charity with a Board of Directors who work for the organisation on a voluntary basis. Miss Moran and Mrs McCann were therefore unpaid volunteers acting as directors and they drew on the experience of other voluntary organisations when drawing up the shortlisting criteria in August 2010.
30. The core staff of the organisation comprise the manager (currently Mr Martin Gallagher who was appointed after the events in issue in this case) and two Neighbourhood Regeneration Officers with a subordinate post for an administrator. The organisation had other activities involving other staff but none of those staff or activities are relevant to the current proceedings.
31. The claimant applied for the post of Neighbourhood Regeneration Officer (NRO). Short-listing for the post took place on 18 October 2010 and the claimant was informed by letter of 20 October 2010 that she had not been short-listed due to failing to meet the essential criteria. The reason for this was that she failed to meet the five year element of the essential criteria.
32. When the claimant first raised queries with the respondent in relation to the failure to shortlist her, Mr Gallagher was tasked by the directors to deal with the matter. He did so by engaging the services of a firm of solicitors who acted on a pro-bono basis for the organisation and completed the claim form. We note with surprise that the directors took no direct part in formulating the response form or instructing the solicitors despite the fact that they were directly involved in devising and applying the short-listing criteria. This may be partly explained by the fact that the directors were volunteers with full-time jobs in other organisations and other volunteer roles. The net result of this however was that there was an unsatisfactory situation where Mr Gallagher who had no personal knowledge of the circumstances surrounding the failure to shortlist the claimant, provided instructions to solicitors and (on his evidence) allowed the response form to be lodged without him having had sight of it.
33. Mr Gallagher appeared to try to shift the blame to the solicitors for any inaccuracies in the claim form. However, it was incumbent on the respondent to ensure that information in such an important document was accurate.
34. In the response form the respondent stated as one of the reasons for the selection of the criteria:
“The reason for selection of these criteria was as follows:
1. As a business organisation we were undergoing a period of structural change brought about by the following circumstances:
· Our project manager had resigned to take up a new employment post with The Chest Heart and Stroke Organisation.
· Our previous two neighbourhood regeneration officers had also left the organisation.
2. We were, as a result, tasked with the responsibility of filling the positions of a full team of staff to work within our Neighbourhood Regeneration Projects. This new team was to consist of one manager and two neighbourhood regeneration officers.
3. In these circumstances it was therefore viewed as a legitimate business requirement that any candidates recruited would need to be of a high calibre and be able to take up the position immediately without the need for extensive training and with minimal supervision.”
The Pools for Comparison
35. The claimant’s contention was that there was no requirement to identify a pool but if the tribunal decided to use a pool for comparison, then the relevant pool should be defined as follows: all suitably qualified candidates both male and female within Northern Ireland who could comply with the criterion apart from the five-year stipulation.
36. The task for the tribunal in assessing disparate impact is to assess whether the PCP puts, or would put, women at a particular disadvantage when compared to men. Previously the legislation stipulated that the claimant had to demonstrate a considerably larger proportion of her sex had been put to a particular disadvantage. Whilst the current definition is broader than the old definition, the use of pools is still the most practical way of showing the comparative disadvantage.
37. The claimant relied on the following:
(a) That it is settled law that women are more likely to have primary caring responsibilities for family members. The claimant referred the tribunal to a tribunal-level decision in Karim v Laura Ashley 1977 in this regard;
(b) Statistics drawn from a Northern Ireland Labour Force survey for January to March 2011 which show that, of 83,000 people economically inactive due to “looking after family and home”, 75,000 were women (90.9%);
(c) The tribunal’s general knowledge of the workforce to support its contention that, in our society, many more women than men are likely to have periods out of the workplace due to childcare responsibilities;
(d) The gender breakdown of the statistics relating to applicants for the post and those shortlisted.
(e) The evidence of Miss Moran and Mr Gallagher that their experience was that women bore primary caring responsibilities and were more likely than men to have an interruption in their working careers.
38. The respondent’s contention was that there were insufficient statistics and insufficient evidence before the tribunal to form a view on disparate impact and on the composition of the correct pool. It contended that the correct pool should be those suitably qualified for the position and who could meet the criterion (apart from the impugned element in relation to five years) within the “catchment area” of the post. No reason was put forward by the respondent for limiting the pool geographically in this way other than the general point that the pool should not be defined “at large”.
39. We find that the relevant pool is that stipulated by the claimant’s side. We heard no evidence to warrant restricting the pool geographically despite the respondent’s submission that that was a relevant consideration in this case. We therefore find it appropriate to rely on the Labour Force statistics for all of Northern Ireland in relation to this finding. The huge disparity between the sexes revealed by the survey would have led us to infer that a similarly big disparity would have applied even if the pool had been restricted to the catchment area, however defined.
Particular disadvantage
40. The respondent’s contention was, that of the three persons shortlisted, two were female and could comply with the impugned criterion and the male who was shortlisted complied with a different criterion. This was a change in the case which had been presented up to the date of the tribunal hearing which was that of the three who were shortlisted all three meet the criteria but that, as two of the three were female, there was no disproportionate adverse impact on women. The documents bear out that the male was shortlisted on an alternative essential criterion.
41. There were seven applicants: five female and two male of whom two females and one male were shortlisted. The result was that 40% of the female applicants could comply with the impugned criterion and 60% could not. One male applicant could not comply and one male applicant did not have to comply as he met a different criterion. To say (as the respondent submitted) that 40% of females could comply and 100% of men could not, involves a flawed comparison because one of the males did not have to comply with the impugned criterion as he met another essential criterion.
42. The respondent also argued that the number of people within the statistical group was so small (namely 3 shortlisted out of 7 applicants) that it meant it constituted insufficient evidence for a tribunal to consider to support a finding of particular disadvantage. The respondent’s contention was that such small numbers meant that statistical analysis was unreliable as any small movement could dramatically alter the picture. The respondent argued that the claimant failed to satisfy the burden of showing particular disadvantage.
43. We find that the statistics are of no help to us in any McCausland analysis on this point and are of little help generally. We do not know the numbers of males and female put off applying because of the presence of the impugned criterion.
44. The claimant states that there is a 20% disparity between men and women when one looks at the proportion of women shortlisted from those who applied as compared with the proportion of men shortlisted from those who applied. This does not help us as the sole male shortlisted did not have to comply with the impugned criterion
45. We find that there was disproportionate adverse impact on females by the application of the five-year requirement within this criterion and that this amounted to the requisite particular disadvantage. Our reasons for so finding are as follows:
(1) The Northern Ireland Labour Force survey indicates a vastly larger percentage (90.6%) of women than men with time out of the workplace due to “looking after family and home”.
(2) We draw an inference from that statistic and from our own knowledge of the workforce that, in practice, the vast proportion of people who take periods out of the workplace due to looking after family and home are women who do so due to childcare responsibilities. We draw a further inference that, of the numbers of the suitably qualified people in that pool, a similarly larger proportion of women than men was adversely affected by the application of the PCP.
(3) The statistics relating to those who applied and were shortlisted are of little help to us as they do not take account of the numbers of women and men who did not apply at all because they were put off by the criterion which was applied. We therefore discounted those statistics in this analysis.
(4) The impugned element of the criterion put women at a particular disadvantage, as outlined above, given the significantly larger likelihood that women would have a period of time out of the workplace due to child-caring responsibilities.
(5) We draw the inference that women who were otherwise suitably qualified for the post were disproportionately adversely affected compared to suitably qualified men. In support of this conclusion we rely on the huge disparity between males and females generally in the Labour Force Survey. If the statistical difference had been narrower the tribunal would have required more detailed statistics or other evidence from the claimant, relating to the qualifications for this post in order for the claimant to discharge the initial burden of proof. However , in this case, we are satisfied that the statistical disparity is so large that it provides sufficient support for the claimant to discharge the burden of proof on this point.
(6) In addition the respondent’s witnesses Ms Moran and Mr Gallagher accepted that women bear primary caring responsibilities and are more likely than men to have an interruption in their paid working careers. Whilst the respondent’s witnesses’ views in this area are not determinative of the issue of particular disadvantage, their evidence, drawn from their own knowledge of the workplace, is in line with the tribunal panel’s knowledge of the workplace and is another element put in the balance by the tribunal to lead to our conclusion that the claimant has shown particular disadvantage in this case.
Personal disadvantage
46. The PCP applied to the claimant put her at a particular disadvantage because in her case her relevant paid experience occurred before the relevant five-year period and this meant that she was eliminated at short listing stage. She therefore was unable to proceed to interview to outline how her recent voluntary and other community activities made her a suitable candidate for the job. It was not disputed that the claimant was put at a disadvantage due to the application of the PCP.
47. The disadvantage suffered by the claimant was firstly, that she was not shortlisted and was therefore denied the opportunity to be interviewed and, secondly, that she was not appointed to one of the posts. The claimant’s contention is that she was better qualified and her experience (particularly in urban regeneration) was stronger than the successful candidates. She also contends that, as there were two posts, she stood a good chance of being appointed particularly as such a small group was short-listed.
Justification
48. As we have found above, the claimant has discharged the burden of proving particular disadvantage suffered by women and has shown personal disadvantage suffered by her.
49. The burden is on the respondent to show objective justification in that the application of the PCP was a proportionate means of achieving a legitimate aim. This is an objective test. In the Cadman case the ECJ states: “The justification given must be based on a legitimate objective. The means chosen to achieve that objective must be appropriate and necessary for that purpose”.
50. The legitimate aims relied upon by the respondent involved:
(a) the need to have someone in post able to perform with minimal supervision;
(b) to do the job without the need for extensive training (ie to “hit the ground running”);
(c) the need to have as wide a pool as possible. To this end the requirement for three year’s experience within five-years was dropped to two-years to widen the potential pool of candidates in view of the fact that jobs previously remained unfilled for months before this competition despite two advertisements. We do not find that the means employed (namely the five year requirement) was proportionate as it restricted the pool in a way that was not “cured” by the reduction of the experience requirement from three years to two years.
51. Whilst one or more of these objectives could well amount to a legitimate aim in particular circumstances, we are not satisfied, in this case, that the means employed to achieve the aims were sufficiently connected to them nor were they proportionate. We are not satisfied that the means chosen in this case were appropriate and necessary to achieve the legitimate aims stipulated. Our reasons for so finding are as follows:
(1) The respondent’s evidence was that the two-years’ paid experience could be gained at any time during the five-year period so it was possible for a candidate to be shortlisted with two-years’ paid experience at the beginning of the five-year period leading to a three-year gap. The fact that this was acceptable to the respondents fatally undermines their argument that a candidate needed to be able to “hit the ground running”.
(2) A two-month induction period was envisaged and took place with the successful candidates. We accept the claimant’s argument that this period could have been used to bring her up to date with any new policy documents or action plans in the urban regeneration field with which she was not familiar. Experience in urban regeneration was not an essential criterion but, rather, experience in community development was the essential criterion. We therefore find the evidence of Mr Gallagher in relation to recent action plans in the area of urban regeneration to be irrelevant to liability in this case, as it was simply not relevant to the short-listing criterion that had been arrived at before he joined the organisation.
(3) The balancing exercise which we must perform involves (amongst other things) assessing whether another way of achieving the legitimate aim was possible in order to mitigate any indirectly discriminatory effect. We accept the claimant’s case that, essentially, there should have been flexibility on that criterion in relation to the five-year period so as to enable people such as the claimant (who could demonstrate extensive unpaid relevant experience) a chance to be interviewed and tested at interview. In addition the two-month induction period was already in place and could have met any issues to do with specific experience which was required but which was not included in the essential criterion which was actually used.
Compensation
52. A key issue for us is whether or not the claimant is entitled to all or a proportion of the financial loss. We must assess the percentage likelihood of her being appointed to one of the posts if she had been shortlisted.
53. We find that it is relevant to that consideration for us to take account of the fact that there must have been others both male and female who were put off from applying at all for the post. If the impugned criterion had not been in place there likely would have been more applicants and the claimant and the successful candidates would have faced more competition.
54. We also take account of the fact that there is never certainty that an individual who appears to be good on paper will be successful in the competitive interview process as against the other candidates.
55. It was common case that the claimant was a strong candidate. The claimant relied on her specific experience in the urban regeneration field to say that she would likely have been appointed over the other two successful candidates. However, that was not an essential criterion and it is clear from the application forms of the successful candidates that both of them had experience in the community development field and one had some experience in the urban regeneration field.
56. There were two posts available which increased the likelihood generally that the claimant would have been appointed to one of them.
57. We do not find that it was a certainty that the claimant would have obtained the post. Taking account of all the factors outlined above, we assess the percentage likelihood of the claimant obtaining the post at 50%.
58. The agreed financial loss figures must therefore be amended accordingly.
Injury to Feelings
59. The claimant sought damages in the mid-Vento scale that is between £6,000 and £15,000. The respondent indicated that the low Vento scale, £500-£6000, was appropriate in this case.
60. The relevant factors in this case are:
(1) It was a six-month fixed term contract rather than a permanent job and, although the job has lasted longer than six months and is due to end in March 2012, the post was always to be of a fairly limited duration.
(2) This was essentially a one-off event and not a course of discriminatory conduct.
(3) This was an honest application of flawed criteria and there was no motive to discriminate against women or the claimant.
(4) There is no doubt the claimant felt very aggrieved and hurt that she was not shortlisted. The claimant felt that her qualifications and her extensive experience in the voluntary sector were belittled and demeaned. Whilst we have found the claimant to have been over-sensitive to some degree (see below) there is no doubt that she justifiably felt hurt and aggrieved by her treatment.
61. Taking account of these factors, we assess compensation in the low Vento band and award £5000.
Aggravated damages
62. We do not find aggravated damages to be appropriate in this case. There was no evidence of high-handed malicious insulting or oppressive behaviour. This was a voluntary organisation peopled by volunteers and it is our view that this led to the way this case was dealt with. It was born of ignorance rather than malice and related to lack of knowledge and lack of proper consideration of the reasons for setting the essential criteria and their connection to the needs of the organisation.
63. The claimant cited the case of Zaiwalla in support of her application for aggravated damages which rested on four factual allegations as follows:
(a) The use of the phrase “high calibre” in the response form. The fact that this phrase was used in the response form was the responsibility of the respondent. We find that the claimant’s reaction to the “high calibre” reference in the response form was oversensitive in that she took as a personal slight general statements about the respondent’s intentions in drawing up the criteria;
(b) The words “does not have experience” used on the shortlisting form as they were less extensive than the words used to describe the experience of the other candidates. Again we find the claimant’s reaction as unreasonably sensitive in circumstances where those doing the short-listing were performing essentially a box-ticking exercise with brief notes. We do not find this to have been a slight on the claimant’s experience;
(c) That the respondent did not provide enough information and documentation when requested to do so by the claimant. We do not find this to have amounted to an aggravating factor in this case particularly as the claimant could have applied for Orders and did not do so;
(d) That the respondent raised an unsustainable defence evidenced by contradictory reasons for the criteria in the ET3 and in evidence at the tribunal. Specifically, the respondent at hearing withdrew reliance on the assertion in the response form that one of the reasons for the five-year requirement was because the postholder would need up-to-date knowledge and experience of urban regeneration issues and policies. The claimant also alleged that the respondent erroneously asserted in the response form that the whole team was being replaced when in fact the manager remained throughout the relevant period. We do not accept that these changes to the defence at hearing amounted to the respondent raising an unsustainable defence sufficient to warrant aggravated damages, nor do we find that it amounted to high-handed malicious, insulting or oppressive behaviour. The thrust of the defence was and remained that the claimant did not meet the essential criteria which had been set.
64. We find that the conduct of the defence of the current case is not in the same league as that of the Zaiwalla case. We do not find any behaviour of the respondent amounting to misconduct of any kind nor do we find them to have acted in a high-handed malicious, insulting or oppressive manner. This case involves the unthinking drafting and application of criteria by volunteers. In drawing up the criteria they drew on experience from other voluntary groups but were ignorant of the extent of the potential impact on people like the claimant. We therefore do not find aggravating damages to be payable in this case.
Mitigation of Loss
65. The respondent raised failure to mitigate loss. We are satisfied that the claimant took reasonable steps to seek other employment and thus mitigated any loss.
Calculation of Compensation
66. The parties agreed the following figures subject to liability:
Net loss to the date of hearing: £9,451.00
67. The claimant claimed future loss for the period from 7 September 2011–31 March 2012 (the end of the contract).
68. The claimant has been on Income Support from October 2011 and the figures envisaged that she will be in receipt of Income Support until March 2012.
The figure agreed for future loss: £8,389.36
Actual loss and future loss total: £17,840.36
50% x £17,840.36 = £8,920.00
Injury to feelings: £5,000
Interest:
Date of act of discrimination 18 October 2010.
Date of calculation 18 October 2011.
Interest on loss of earnings from mid-point date to date of calculation:
6 months x 8% x £8920 = £357 (rounded up)
On injury to feelings from date of act of discrimination to date of calculation:
12 months x 8% x £5000 = £400
Summary
69. The claimant suffered indirect sex discrimination and is entitled to the following compensation:
Actual and Future Loss = £ 8,920.00
Injury to Feelings = £ 5,000.00
Interest = £ 357.00
£ 400.00
_______
TOTAL £14,677.00
70. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 7-8 September 2011 at Belfast.
Date decision recorded in register and issued to parties: