Industrial Tribunals Northern Ireland Decisions

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Cite as: [2011] NIIT 01438_10IT, [2011] NIIT 1438_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1438/10

CLAIMANT: John Calvin Woods

RESPONDENT: Chief Constable of the PSNI

DECISION

The unanimous decision of the tribunal is that the claimant’s claims are not well-founded. Accordingly, those claims are dismissed.

Constitution of Tribunal:

Chairman: Mr P Buggy

Members: Mrs S Doran

Dr D Mercer

Appearances:

The claimant was self-represented.

The respondent was represented by Mr J Dunlop, Barrister-at-Law, at the Crown Solicitors’ Office.

REASONS

1. In late 2009, the Police Service of Northern Ireland (“PSNI”) Air Support Unit had a vacancy for a helicopter pilot. The claimant applied for that vacancy, but was unsuccessful. That is the context of the claimant’s claims in these proceedings.

The act complained of

2. There were three phases to the relevant recruitment process. First, there was a paper sift, which eliminated some candidates. The claimant was not among the candidates who were then eliminated. Secondly, the relative merits of candidates were assessed through an interview process. The claimant was among the most successful candidates at that stage of the process.

3. The third phase of the interview process was as follows. Each of the candidates (including the claimant) who had come successfully through the interview phase was the subject of a flying test. At that point in the recruitment process, candidates who were regarded as not having passed the flying tests were eliminated.

4. Those who were regarded as having passed flying tests were ranked in order of merit (in accordance with how well they were regarded having performed during the flying test). Subsequent posts were offered to candidates in accordance with that order of merit (with the “best” candidate being offered the first post, the “second-best” candidate being offered the next available post, and so on).

5. The claimant was eliminated from the competition during the third phase of the interview process, because he was assessed as not having passed the flying test. The assessor who failed him was Mr Edmond Smith (“Ed Smith”).

6. The act complained of in these proceedings is as follows. The claimant complains that Mr Ed Smith’s assessment of his flying abilities was unduly, and unfairly, harsh.

7. He says that, if Mr E Smith had fairly assessed him, he would have been assessed as having “passed” the test, and he would also have been assessed as being among the candidates who were most successful in that test.

The causes of action

8. The claimant says that Ed Smith’s unfair assessment of him, during the flight test, constituted unlawful race discrimination.

9. The claimant says that the same unfairness constituted “direct” age discrimination.

Some key statutory provisions

10. In the context of employment recruitment, racial discrimination is prohibited in Northern Ireland by the Race Relations (Northern Ireland) Order 1997 (“the 1997 Order”). That Order, as amended, now has to be regarded as being the enactment which implements, for Northern Ireland, the United Kingdom’s obligations under the EU Race Directive of 2000.

11. Article 6 of the 1997 Order makes it unlawful for a person, in relation to employment which he has available in Northern Ireland, to discriminate (within the meaning of the 1997 Order) against a person:

“(a) in the arrangements he makes for the purpose of determining who should be offered that employment; or

…

12. According to Article 3 of the 1997 Order, a person discriminates against another, in any circumstances relevant for the purposes of any provision of that Order if, on racial grounds, he treats that other less favourably than he treats or would treat other persons.

13. Article 5 of the 1997 Order defines “racial grounds” as meaning any of the following grounds namely, colour, race, nationality or ethnic or national origins. It also defines “racial group” as including a group of persons defined by reference to national origins. Article 5 also provides that, in the 1997 Order, references to a person’s racial group are references to any racial group into which that person falls.

14. Article 5(4) provides that the fact that a particular racial group comprises two or more distinct racial groups does not prevent it from constituting a racial group for the purposes of the 1997 Order. For that reason, every human being whose national origins are not English, Scottish or Welsh is within the same racial group for the purposes of the 1997 Order (See Orphanos v Queen Mary College [1985] IRLR 349).

15. English people and Scottish people have, respectively, been recognised as constituting separate racial groups, defined by reference to their national origins, within the meaning of the Great Britain equivalent of the 1997 Order (See BBC Scotland v Souster [2001] IRLR 150).

16. Age discrimination in the context of employment in Northern Ireland is prohibited by the Employment Equality (Age) Regulations (Northern Ireland) 2006. Those Regulations were intended to implement the obligations which were imposed upon the United Kingdom by the EU Framework Directive of 2000.

17. Regulation 7 of the 2006 Regulations makes it unlawful for an employer, in relation to employment by him at an establishment in Northern Ireland, to discriminate (within the meaning of the 2006 Regulations) against a person:

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

…

18. In the context of the 2006 Regulations, discrimination includes what is commonly known as “direct” age discrimination. Direct age discrimination is defined in Regulation 3. Broadly speaking, a person (“A”) engages in the direct form of age discrimination against another person (“B”) if:

“…. on the grounds of B’s age [he] treats B less favourably than he treats or would treat other persons …”

unless A can show that the relevant treatment is a proportionate means of achieving a legitimate aim.

19. Regulation 3 provides that, in the context of the definition of direct age discrimination, any reference to B’s age includes a reference to his apparent age.

The claims and the defences

20. The claimant was born and brought up in Northern Ireland. He retains significant links here. He is neither English, nor Scottish, nor Welsh. (To use the convenient form of shorthand which is used later in this decision, he is not a United Kingdom “mainlander”). Ed Smith’s national origins are Scottish.

21. In these proceedings, the claimant complains that the respondent has racially discriminated against him in the following respects. The claimant says that the respondent must be regarded as having racially discriminated against him, both in the arrangements it made for the purpose or determining who should be offered the relevant employment, and by refusing or deliberately omitting to offer him that employment, because of the unduly harsh assessment of his flying abilities (by
Ed Smith). That assessment, according to the claimant, was tainted by “conscious” racial discrimination, in that it was tainted by “pro-mainlander” bias (bias in favour of people whose national origins are English, Scottish or Welsh).

22. The defence of the respondent to the racial discrimination claim can be summarised as follows. First, the assessment was not unduly harsh. Secondly, it was in any event an honest attempt at assessing the claimant’s abilities. Thirdly, in any event, it was unaffected by racial bias.

23. Ed Smith’s allegedly unduly harsh assessment of the claimant’s flying abilities is also the basis for the claimant’s claim of age discrimination.

24. At the time of the relevant recruitment competition, the claimant was in his 50s. Ed Smith is in his 40s. The claimant says that Ed Smith discriminated against him, either at a conscious level or at a subconscious or unconscious level, on the ground of his (the claimant’s) age, by being unduly and inappropriately harsh in his assessment of the claimant’s flying abilities. Accordingly, the claimant asserts, the respondent must be taken to have discriminated (by way of direct age discrimination) against him, both in the arrangements it made for the purpose of determining who should be offered the relevant employment, and by refusing or deliberately omitting to offer him that employment.

25. The respondent’s defences can be summarised as follows. First, the respondent denies that the assessment was unfair or unduly harsh. Secondly, according to the respondent, in any event, Ed Smith’s assessment was an honest attempt to carry out a fair assessment. Thirdly, in any event, according to the respondent, that assessment was unaffected by age discrimination. As already noted, in passing, above, direct age discrimination can be “justified”. However, the respondents do not argue that any age discrimination would have been justified in the circumstances of this case.

26. On behalf of the PSNI, it is accepted that it has legal responsibility in respect of any relevant acts of discrimination carried out by Ed Smith.

The facts

27. In this paragraph, we set out various findings of fact. In the interests of clarity, and in order to minimise avoidable repetition, we have also set out various other findings of fact elsewhere in this Decision:-

(1) The claimant’s previous flight record was that he had flown helicopters in the Royal Marines for 26 years and he had spent 8 years as an Air Ambulance Pilot in the South West of England, where he flew two types of helicopter.

(2) By the time of the relevant flight test, the claimant had not flown for 18 months.

(3) During his time as an active helicopter pilot, he had been tested several times a year by Civil Aviation Authority Appointed Examiners, and had passed on each occasion.

(4) During the course of the relevant recruitment process, the flight tests were assessed by Mr Edmond Smith (referred to in this Decision as “Ed Smith”) and by Mr Herbie Smith (referred to in this Decision as “Herbie Smith”). Ed Smith’s national origins are Scottish. Herbie Smith is a Northern Ireland man, and has no English, Scottish or Welsh national origins. Both of the Smiths are in their 40s

(5) The claimant is a Northern Ireland man, who has spent most of his working life in the United Kingdom armed forces, and has spent most of his working life at places outside Northern Ireland. However, he retains close links with Northern Ireland, he has close relatives here, and he often visits here.

(6) In October 2009, the PSNI advertised a vacancy within the Unit in respect of a helicopter pilot.

(7) The management of the recruitment competition was entrusted to Grafton ESP Recruitment (“Grafton”).

(8) The claimant submitted an application, in respect of the vacancy, in November 2009.

(9) There were many more applicants than had been anticipated. There were 52 applicants in total. At the first stage of the recruitment process, the sift stage, the number of candidates was reduced to 20. All of those 20 candidates were invited to interview.

(10) The interview was the second stage of the recruitment process. The purpose of the interview was to measure the skills, experience and competences of applicants, in line with the job description for the relevant vacancy.

(11) The claimant was one of 20 candidates called for interview. He was interviewed on 26 November 2009. He was one of the nine most successful candidates at the end of that phase of the recruitment process. All of those candidates were invited to attend a flight test. One of those nine candidates (another Northern Ireland man) withdrew his job application prior to undertaking the flight test. So, eight candidates did the flight test.

(12) The reasoning behind the inclusion of the flight test (as part of the relevant recruitment process) was to assess technical flight experience and to measure key competencies (which the respondent considers to be justifiable), within the context of the post that was being recruited for.

(13) The technical ability aspects of the flight test was assessed, in relation to the remaining eight candidates, by Ed Smith (in respect of some of those candidates) and by Herbie Smith (in respect of the rest of them). Each of the Smiths carried out this process of assessment in accordance with criteria which had been agreed between the two Smiths.

(14) The claimant’s flight test was held on 28 January 2010. The flight test was assessed in two main areas (“Competencies” and “Technical”). “Competencies” was jointly assessed by the relevant Smith (Ed or Herbie) and by Sergeant Neil (a PSNI officer who has considerable experience of using the Unit’s services). “Technical” was assessed solely by the relevant Smith (either Ed Smith or Herbie Smith, depending on who was being tested).

(15) Candidates were required to score at least “acceptable” in all assessed areas in order to be entered into the merit pool. The claimant did achieve “acceptable” in relation to all of the “Competencies”, but he failed to achieve “acceptable” in relation to some of the areas which were assessed by Ed Smith under the “Technical” element of the flight test.

(16) Of the eight candidates who did the flight test, two candidates were assessed as being unsuccessful. One of the candidates who was assessed as being unsuccessful, the claimant, was assessed by Ed Smith. The other candidate who was assessed as being unsuccessful was assessed by Herbie Smith. The candidate who was assessed by Herbie Smith as having failed to score at least “acceptable” was a mainlander in his 40s.

(17) The claimant has drawn attention to the apparent incongruity of a very experienced pilot, such as himself, having successfully passed regular CAA flight tests, but being regarded by the Air Support Unit of the PSNI as not having flying skills of an “acceptable” standard. Having considered all of the evidence in this case, we wonder whether “acceptable”, according to the criteria applied by the two Smiths during the course of the flight test, denoted a flying skills standard substantially in excess of the basic, or minimum, flight skill acceptability standards applied by the Civil Aviation Authority. Such a view gains strength from the fact that, of the eight experienced candidates who did the flight test, during the course of the relevant recruitment process, two were found to fall below the “acceptable” standard.

(18) The claimant has a distinctive Northern Ireland accent.

(19) We accept that, at the time of the flight test, Ed Smith did not know the claimant’s precise age. However, we think that most people, on meeting the claimant, would probably think he was in his 50s, rather than in his 40s.

(20) During the course of this hearing, written views were obtained on behalf of the respondent, from Mr Steve Judd, a Civil Aviation Authority representative who was present during the claimant’s flight test. For reasons which are explained below, we consider that the Judd memorandum has no significant evidential value, in all the circumstances of this case. (Those written comments were provided by Mr Judd, on 22 February 2011, to Mr Nick Byrne, the Unit’s Chief Pilot, while this hearing was already under way.)

The legal principles

28. A person discriminates on the ground of pro-mainlander bias if, on the ground that a person is not a mainlander, he treats him less favourably than the perpetrator treats, or would treat, a mainlander. A person “directly” discriminates, against a particular individual, on the ground of age, if, on the ground of that individual’s age, the perpetrator treats that individual less favourably than the perpetrator treats, or would have treated, a person who is younger than the alleged victim.

29. Accordingly, in the context both of race discrimination and of age discrimination, the question of whether discrimination has occurred involves two questions. First, has the alleged victim been treated less favourably than the alleged perpetrator has treated, or would treat, an appropriate statutory comparator? Secondly, was the relevant prohibited ground a significant factor in the context of the relevant decision? In other words, was the relevant prohibited ground (in the context of race, the claimant’s non-mainlander status, and in the context of age discrimination, the circumstance that, at the relevant time, the claimant was in his 50s) an important factor in the context of the relevant treatment?

30. In this case, in the context both of the race discrimination claim and in the context of the age discrimination claim, the claimant has chosen to cite a hypothetical comparator.

31. When a claimant chooses to cite a hypothetical comparator, there is essentially one single question, which is whether the claimant received less favourable treatment on the proscribed ground (race, or age, as the case may be).
Accordingly, in the context of “hypothetical” comparators, the central question is: Why? Why was the claimant treated in the way he was in fact treated? (In the context of the racial discrimination claim was his non-mainlander status a factor? In the context of the age discrimination claim, was the fact that he was in his 50s a factor?)

32. In the context of the racial discrimination claim, two elements of the definition of discrimination have to be satisfied. First, there must have been less favourable treatment of the claimant (in comparison with the treatment accorded to an appropriate statutory comparator). Secondly, although the relevant prohibited ground (“racial grounds”) does not need to be the main reason for that treatment, that prohibited ground must be a substantial and effective cause. In other words, it must be an important or significant factor. (See Igen Ltd v Wong [2005] IRLR 258, at paragraphs 35 and 37 of the judgment.)

33. In the context of the claimant’s age discrimination claim, two elements of the definition of discrimination have to be satisfied. First, there must have been less favourable treatment of the claimant in comparison with the treatment accorded to an appropriate statutory comparator. Although the relevant prohibited ground (“the grounds of” the claimant’s age) does not need to be the main reason for that treatment, that prohibited ground must be a substantial and effective cause. In other words, it must be an important, or significant, factor. (See paragraphs 35 and 37 of the judgment in Igen Ltd).

34. It is proper to regard the claimant as relying on a hypothetical comparator in respect of his race discrimination claim. In that context, an appropriate statutory comparator is a person whose national origin are English, Scottish or Welsh, and whose circumstances were otherwise analogous to the circumstances of the claimant.

35. In the context of the age discrimination claim, the claimant must also be taken to be citing a hypothetical comparator. In the latter context, that comparator would obviously be a person in his 40s whose circumstances were otherwise similar to the circumstances of the claimant.

36. By citing a hypothetical comparator in this context, the claimant is, in effect, focusing this tribunal’s attention on the “reason why”. Accordingly, in the context both of the race discrimination case and of the age discrimination case, the following question is important: Why did Ed Smith decide that the claimant had failed that flight test?

37. In the context of the race discrimination claim, the following questions are important. Was the claimant’s lack of English, Scottish or Welsh national origins a substantial and effective cause of the relevant treatment? Was it an important or significant factor in that connection?

38. In the context of the claimant’s age discrimination claim, the following questions are important. Was the claimant’s age, was the fact that he was in his 50s, a substantial and effective cause of the relevant treatment? Was it an important or significant factor in that connection?

39. When a hypothetical comparator is cited, it will often be helpful to focus attention on the reason for the relevant treatment. As Lord Nichols stated at paragraph 11 of Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, at 342:

“This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all of the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others”.

40. Furthermore, if the treatment complained of was intrinsically unreasonable, that is a factor which can be taken into account in deciding what inferences should be drawn, in the context of the question of whether or not particular treatment was, or was not, accorded on a proscribed ground. See Bahl v Law Society [2004] IRLR 799.

41. Article 52A of the 1997 Order is in the following terms:

“(1) This Article applies where a complaint is presented under Article 52 and the complaint is that the respondent –

(a) has committed an act of discrimination on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in Article 3(1B)(a), (e) or (f) of Part IV in its application to those provisions …

(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 such an act of discrimination ... against the complainant, [or]

(b) is by virtue of Article 32 or 33 to be treated as having committed such an act of discrimination or harassment against the complainant

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

42. Article 42(2) of the 2006 Regulations is in the following terms:

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

(b) has committed against that complainant an act [of discrimination which is made unlawful by the 2006 Regulations]; or

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”.

43. As was pointed out at paragraph 57 of the judgment in Madarassy v Nomura International plc [2007] IRLR 246 the phrase “could … conclude” (in the context of the Great Britain equivalents of Article 52A of the 1997 Order and of Regulation 42 of the 2006 Regulations) means a reasonable tribunal could properly conclude. The case law clearly establishes that, in the context of Article 52A, and in the context of Regulation 42, a tribunal could not properly conclude, even in the absence of adequate explanation, that the respondent has committed a relevant unlawful act of discrimination, or has to be treated as having committed such an act, unless there is prima facie evidence that such discrimination has been carried out (either by the respondent or by someone for whom the respondent has secondary legal liability).

44. Accordingly, both in the context of Article 52A of the 1997 Order and in the context of Regulation 42 of the 2006 Regulations, the burden of proof shifts to the respondent only if, in the absence of an “adequate” (non-discriminatory) explanation, there is sufficient evidence to entitle a tribunal to decide that there was indeed a relevant act of unlawful discrimination, for which the respondent is responsible.

45. An alleged perpetrator can be found to have carried out an act of unlawful employment discrimination even if the perpetrator is unaware that the relevant treatment has been affected by inappropriate bias.

46. That was the situation in Nagarajan v London Regional Transport [1999] ICR 877. In that case, the claimant was making a victimisation claim. He had brought previous race discrimination proceedings against the employer. He had then unsuccessfully applied for a vacancy with the employer. The interviewers, on that occasion, were aware of his previous proceedings. There was an issue as to whether or not it was necessary, in order to succeed in the victimisation claim, to show that the interviewers were consciously motivated by knowledge of the previous proceedings. The House of Lords decided that conscious motivation was unnecessary. In concluding, in that case, that subconscious bias would suffice, Lord Nicholls (at 885E) made the following observations:

“I turned to the question of subconscious motivation. All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or are unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant’s race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. It goes without saying that in order to justify such an inference the tribunal must first make findings of primary fact from which the inference may properly be drawn”.

47. We draw particular attention to the last sentence of the quoted extract from Nagarajan: One cannot properly decide that an alleged perpetrator has been affected by unconscious or subconscious bias unless there are findings of primary fact from which such an inference may properly be drawn.

Conclusions

48. We regard the written comments from Steve Judd as being of no significant evidential value. They were given late in the day, long after the event, by a man who was actively seeking work from the Unit, and they were given when he had seen a copy of Ed Smith’s contemporaneous record of Ed Smith’s own assessment of the claimant’s flight skills. Furthermore, Mr Judd, through no fault of his own, and through no fault of the respondent, was unavailable to provide the relevant information during the course of oral testimony.

49. It seems to us that, when a tribunal is considering a complaint of unlawful discrimination which allegedly occurred in the course of a recruitment process, it is important that the tribunal should not usurp the function of the people who made the decisions in that process, by substituting its own assessments for those of the recruitment process assessors. Any selection process inevitably involves matters of impression, and matters of judgement, on which views may honestly and legitimately differ.

50. The claimant says that, at a conscious level, Ed Smith deliberately under-marked him in respect of the flight test, because Ed Smith didn’t want anybody who wasn’t English, Scottish or Welsh to be appointed, and because he didn’t want a man in his 50s to be appointed.

51. We have listened very carefully to the evidence of Ed Smith. We have carefully considered his demeanour and manner of giving evidence. We have noted that his evidence was, broadly speaking, internally consistent. We do not consider that evidence to be inconsistent with the known or undisputed facts. We consider that the account of events which Ed Smith gave, during the course of his oral testimony, was generally in line with the contents of the brief note (“the Note”) which he made at the time of the relevant test. In the course of his oral testimony in these proceedings, Ed Smith was able to give examples of what he considered to be shortcomings in the claimant’s flight skills. Contrary to the view put forward by and on behalf of the claimant, Ed Smith’s comments, both in the Note and in the course of his oral testimony, were, in general, not inconsistent with the recorded comments of Sgt. Neil. In any event, Sgt. Neil is not a professional pilot, whereas Ed Smith is a professional pilot. The claimant says that we should take account of what he considers to be evasive replies to the statutory questionnaire. However, in our view, those replies are not evasive. In any event, those replies were not prepared by Ed Smith. At first sight, it is very surprising that someone like the claimant, who had been flying for so long, and who had such extensive flying experience, could fairly be assessed as having failed this flight test. However, by the time of the relevant test, the claimant had not flown for 18 months, so “skill-fade” is clearly a possibility.

52. In assessing the credibility of Ed Smith as a witness, we had regard to all the evidence in this case. Overall, we were impressed with the evidence of Ed Smith. We concluded that, in the course of his oral testimony, he was telling us the truth as he saw it. He told us, in clear and unequivocal terms, that, in marking the claimant, he was doing his best to be fair, that he believed that he was being fair, and that he was not affected to any extent by racism or ageism. Because we believe that testimony, the claims of race discrimination and of conscious age discrimination must be dismissed.

53. That leaves the claim of unconscious or subconscious age discrimination.

54. On behalf of the respondent, Mr Dunlop made much of the fact that Ed Smith did not have a managerial role. Therefore (according to Mr Dunlop) Ed Smith had no reason to concern himself on the question of whether the claimant, as a man in his 50s, would only have a limited number of years of service to offer to the respondent. We accept that those circumstances are matters to be taken into account in determining the relative plausibility, or implausibility, of Ed Smith being affected by age bias.

55. As noted above, we regarded Ed Smith as an honest witness. He told us that he was not affected by ageist bias, in connection with the relevant flight test. We believe that this was honest testimony.

56. However, Ed Smith simply will not know whether or not he was affected by ageist bias at some subconscious or unconscious level. We have no direct evidence, from any source, on that aspect of the case. So, we have had regard to all of our findings of primary fact. In particular, we had regard to the following.

57. First, there is nothing inherently implausible about an assessor, in the position in which Ed Smith was, being affected by ageist bias at a subconscious level. However, an assessor who does not have the task of managing the new recruit, or of accounting to somebody in respect of staff costs, is relatively less likely to be affected by age bias in the context of such an assessment.

58. Secondly, in reality, we do not know whether Ed Smith’s assessment of the claimant’s flight test performance was fair. None of us is a qualified pilot. None of us is qualified to assess flight performances. Furthermore, none of us was present at the flight assessment.

59. However, we do not have sufficient evidence upon which we could conclude, even if we were to disregard the testimony of Ed Smith, that the relevant assessment was unfair, in the sense of being unduly harsh. We were not present at the assessment. We do not have any competence in assessing the abilities of pilots. When the claimant did the relevant flight test, he had not flown for 18 months. Ed Smith had kept a contemporaneous, and relatively detailed, note of the context in which he decided that the claimant had not met the basic requirements of the test.

60. If one puts aside, for a moment, the explanations (the explanations which have been given by or on behalf of the respondent), what evidence is available in favour of the proposition that Ed Smith unfairly assessed the claimant’s performance during the flight test, because of unconscious or subconscious age bias? First, there is no significant evidence in favour of the proposition that the claimant was unfairly assessed. Furthermore, in this connection, we bear in mind that assessment, in the circumstances, necessarily involved the making of subjective judgements. Secondly, it is a fact that the claimant had less years of service to offer the Unit than a man in his 40s would have been able to offer. However, the evidential value of that circumstance is diminished by the circumstance that Ed Smith had no responsibility for keeping the staff costs of the Unit down. Thirdly, Ed Smith is a man in his 40s, whereas the claimant is a man in his 50s; so they were of different ages. Fourthly, at the time of the flight test, the claimant was a very experienced pilot. However, on the other hand, by the time of the flight test, he had not flown for a considerable period of time, so “skill-fade” was obviously an issue. Fifthly, Herbie Smith, the other flight assessor, like Ed Smith, failed a candidate who was a very experienced pilot; that other candidate was in his 40s.

61. Having carefully considered all of the factors mentioned in the last preceding paragraph above, and having considered all of our other findings of fact, we have concluded that there is insufficient evidence to establish a prima facie case of unconscious or subconscious age discrimination.

62. Against that background, and for those reasons, we have concluded that Ed Smith did not unconsciously or subconsciously discriminate against the claimant, on the grounds of the claimant’s age.

The claimant’s Submission

63. One of the striking features of this case was that the claimant (ably assisted by his brother) courteously, intelligently and proportionately presented and deployed detailed arguments in support of his claims. Many of his arguments were included in a written submission (“the Submission”) which was entitled “Case Summary”. In our view, the reasoning set out above is a sufficient explanation for the reasons why the tribunal has had to dismiss the claimant’s claims. However, in the following paragraph, we deal with many of the arguments which the claimant has set out in the Submission. Any reference in the following paragraphs to a page number is a reference to the relevant page number of the Submission:

(1) The racial make-up of the pool of successful candidates is not grossly out of line with the racial mix of the pool of “realistic” candidates in general (page 1).

(2) The age pattern among the successful candidates is not grossly out of line with the age pattern of the “realistic” candidates in general (page 1).

(3) The age discrimination regulations, at Regulation 42, only shift the burden of proof to the respondent if and when a prima facie case of lawful discrimination has been established. For more detail, see above (page 1 of the Submission).

(4) We accept that there is a natural tendency, among many people, to prefer people like themselves. However, such natural tendencies have to be seen alongside other factors, such as the concepts of propriety and professionalism (page 1).

(5) The Barton guidelines, as interpretated in subsequent case law, do not require an explanation if prima facie evidence of discrimination has not been produced. See above (page 2 of the Submission).

(6) We are satisfied that the requirement for operations at 5000 feet was a proportionate requirement, in light of the general operational needs of the PSNI (page 3).

(7) Accordingly, the 5000 feet criterion was appropriate, even if it tended to favour those with a career background in the United Kingdom armed forces.

(8) We do not accept that the imposition of the 5000 foot requirement was inappropriate, or that it was affected by any intention to advantage one particular group and disadvantage another group (page 4 of the Submission).

(9) Most of the successful candidates were in their 40s. However, many of the credible candidates were also in their 40s.

(10) We are satisfied that the imposition of the 5,000 ft. criterion was not affected by anti-Roman Catholic (“anti-Catholic”) or anti-nationalist bias. Upon reflection, we have decided not to express any view, even a tentative view, on the question of whether or not (subject to justification) the imposition of such a requirement might be indirectly discriminatory against Catholics or nationalists (in light of possible differential uptake, on the part of Northern Ireland Protestants and Northern Ireland Roman Catholics respectively, in relation to potential careers in the United Kingdom armed forces).

(11) We also accept that a civilian pilot would have difficulty in meeting the 5,000 ft. criterion. However, as already noted above, we accept that the imposition of the criterion was an appropriate response to the business needs of PSNI (page 4).

(12) It was clearly established, at the beginning of these proceedings, that the acts complained of (the acts in respect of which compensation is sought), in these proceedings, consisted solely of the allegedly unfair assessment of the claimant’s flight performance. Accordingly, when the claimant says, at page 6 of the Submission, that Candidate C was treated more favourably than the claimant, we treat that as colourful language only. (The claimant cannot, after the hearing is over, expand the scope of his case).

(13) We accept that the Chief Pilot, Mr Nick Byrne, did adopt a very liberal interpretation of the eligibility criteria, when he ultimately allowed Candidate C to participate in the process, even though Candidate C had to rely on “simulator” hours as flight hours. We reject the proposition that Candidate C was treated in that way because he was an “in-group” member. Instead, we were satisfied that he was treated in that way because he was on active service in Afghanistan at the time of the trawl.

(14) According to the claimant, Candidate C ought to have been ruled to be ineligible because his CAA documentation had not been completed by the closing date of the competition. But he was in Afghanistan at the time. It appears that, by the closing date, he had an indefeasible entitlement to be provided with the CAA documentation. In any event, we are satisfied that, at the time the relevant recruitment decisions were made in relation to Candidate C, none of the decision-makers realised that there was an issue about the current availability of the CAA documentation. (See page 8).

(15) According to page 8 of the Submission, the position was as follows:

“At the end of the Interview stage, two of the top three candidates came from a Northern Ireland background and the fourth placed Candidate came from the Republic of Ireland. None were subsequently offered appointments”.

However, that is not an entirely accurate statement of the position. For a start, one of the relevant candidates withdrew his application. Secondly, the candidate from the Republic of Ireland was subsequently offered a job.

(16) The tribunal does not accept that it is bad practice to use employees to select their future workmates. We see nothing wrong with the existing cleaner being asked to assess the competence of a candidate who wants to be the new cleaner (page 9).

(17) We do not accept that being on first name terms with a candidate is, in itself, a sufficient reason to prevent a potential assessor from actually carrying out a recruitment assessment (page 9).

(18) Mr Judd was present at the flight test in his CAA role. He was not one of those who were authorised or required to assess flights candidates, according to the arrangements which had been made in respect of this recruitment process. Accordingly, it would have been wrong to have asked him, on a spontaneous and ad hoc basis, to give his opinions about the competence, or otherwise, of the candidates who were being tested by the Smiths (page 10).

(19) Between pages 10 and 14 of the Submission, the claimant sets out and repeats points that he made to Ed Smith in the course of his cross-examination of Ed Smith. In our view, in the course of that cross-examination, and in the course of his Submission, the claimant has provided an intelligent critique in respect of various aspects of Ed Smith’s assessment conclusions. However, nothing emerged from that critique, and nothing emerged from the cross-examination, to cast doubt upon Ed Smith’s protestations that he had carried out the assessments both carefully and honestly.

(20) In particular, the contemporaneous notes of Ed Smith’s assessments were never intended to be a comprehensive statement of all of the observations which were relevant to the conclusions which he arrived at in his overall assessments.

(21) The claimant asserts that there were inconsistencies between the assessments of Ed Smith on the one hand and those of Herbie Smith on the other hand. However, inconsistencies do not necessarily point to conspiracy. Often inconsistencies occur because of human error, as distinct from malevolence (page 13).

(22) In the Submission, reference is repeatedly made to the argument that there has been discrimination in favour of candidates from RAF Aldergrove, being “the perceived in-group”. Even if we were to accept the validity of that proposition, bias in favour of people from RAF Aldergrove would be of no assistance to the claimant, in his attempts to establish that there has been direct race discrimination against him, or in his attempts to establish that there has been direct age discrimination against him (page 13).

(23) At page 14 of the Submission, the claimant points out that, when two experienced pilots were failed in the course of this flight test process (by Ed Smith and by Herbie Smith respectively), Mr Byrne passed no comment, and made no enquiries. We agree with the implied criticism. In our view, the failure, among such a small pool of assessment candidates, of two experienced pilots was, on the face of it, sufficiently surprising to make it appropriate for the Chief Pilot to make some enquiries, even if those enquiries ended up being of a merely perfunctory nature (page 14).

(24) We do not accept that the two Smiths were “unqualified” assessors (page 14).

(25) At page 15 of the Submission, the point is made that Cara Hart, on behalf of Grafton, sent Mr Byrne a note which at least implies that she was suggesting that a process of moderation should take place between the respective assessments of the two assessors. However, Mr Byrne did not accept that recommendation. In our view, it was reasonable of him not to do so. (If, for example, as part of the process of moderation, the grading of Candidate C had been enhanced, Mr Byrne would have been open to the allegation that he had put undue pressure on the assessors to upgrade C’s marks).

(26) In our view, the Judd email does not contain evidence which is of significant weight; see above (page 16).

(27) In conclusion, the Submission asserts the following:

“In comparison, if the pilots provided by Premiair had been 4 females aged 30-35 and the resulting recruitment campaign produced a further 5 females aged 30-35 would the Tribunal accept this was the result of a non-discriminatory process”.

It is not necessary to directly answer that question, for the purpose of determining the present proceedings. However, in deciding whether or not the answer to such a question would be “yes” or “no”, a tribunal would probably have regard to the following questions. First, what was the approximate gender balance within the pool of potential candidates who would have been credible candidates? Secondly, what is the gender balance among the pool of actual candidates? Thirdly, what percentage of the pool of potentially credible candidates were in their early 30s? Fourthly, what percentage of the actual candidates were in their early 30s?

General comments

64. It seems to us that, at the heart of these proceedings, are two views which are strongly held by the claimant.

65. First, the claimant strongly believes that the assessment was unduly harsh and that, if he had been fairly and reasonably assessed, he would have been deemed to have passed the test and indeed would have been regarded as one of the better qualified flight test candidates. However, it has to be clearly understood that we have no freestanding powers to rule upon the general fairness, or the general unfairness, of assessments which take place during the course of recruitment processes. Instead, we can only provide a remedy if we conclude that some unfairness has been affected by a relevant prohibited ground (such as racism or ageism).

66. Secondly, the claimant clearly believes that, regardless of the outcome of the flight test, he could and would have been able to have provided a very effective service to the Unit, in his role as helicopter pilot, within a very short time after being appointed. Again, in the particular circumstances of these claims, we have no entitlement to adjudicate in respect of that proposition.

Chairman:

Date and place of hearing: 21-25 February 2011 and
24 and 25 March 2011, Belfast.

Date decision recorded in register and issued to parties: