Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    2536/10

 

 

CLAIMANT:                      Jonathan Eves

 

RESPONDENTS:              1.  HR Connect

                                        2.  Department of Finance and Personnel

 

 

 

DECISION

 

The unanimous decision of the tribunal is that the respondent’s did not discriminate against the claimant on account of his race.

 

 

Constitution of Tribunal:

 

Chairman:                        Mr S M P Cross

 

Panel Members:               Mrs F Cummins

                                        Mr J Devlin

 

 

Appearances:

 

The claimant appeared in person and was not represented.

 

The respondent was represented by Mr Michael Potter, Barrister-at-Law, instructed by the Departmental Solicitors’ Office.

 

 

FINDINGS OF FACT

 

1.       The tribunal read the statements of evidence of the witnesses, who were then subject to cross examination.  From this process the tribunal now records the evidence that is relevant to the claimant’s claim, that he suffered racial discrimination at the hands of the respondents.

 

2.       The first respondent is an agency that is employed by the second named respondent, which is the authority that sought to employ census area managers to assist with the 2011 census.

 

3.       The claimant, who was born in Dublin on 24 December 1961, moved to South Africa in 1984.  In 1986 he made the decision not to return to Ireland but to settle in South Africa.  From that time the claimant has considered himself to be a South African.  In 1986 the claimant married a South African and after completing engineering training he was employed by DeBeers diamond research laboratory.  In 1988 he was given Permanent Residence status but he did not apply for citizenship.

 

4.       Some years later, in order to look after an elderly parent, the claimant returned to Ireland and took up residence, first in County Down and subsequently in County Tyrone.  Although the claimant has lived in Ireland for the last few years, he still considers himself to be a South African.

 

5.       On 10 June 2010 the claimant applied for the position of census area manager, South West region of Northern Ireland.  The claimant was assessed as meeting all the criteria for the post and was called for an interview on 26 July 2010.

 

6.       When the claimant arrived for his interview he noticed a number of people waiting around the reception desk.  These people were texting or chatting to one another.  The claimant remarked that this seemed unprofessional but the tribunal reads nothing into this, as the atmosphere was the same for all the job applicants on that day.  In any event it transpired that one of the group was an hotel employee, of the hotel at which the interview was held and the other two were employed by the respondents.  Neither of whom were involved in the interview process.  The claimant was given a form to complete and then shown into a room where he was told that he would have half an hour to prepare a presentation for the interview panel.  The official returned within the half-hour allotted.  When the claimant complained about this the official explained that the half hour allotted, included a time during which the official explained what had to be done in the presentation.  The claimant was not treated any differently in this respect to the other applicants for the post.

 

7.       The interview panel consisted of three persons, Mr Beattie who was the chairman and two females Ms Hyvart and Ms Houston, all three persons are employees of the Northern Ireland Statistics Research Agency.

 

8.       The presentation was designed to show that a candidate could successfully gather and communicate information.  The candidate was not interrupted during the presentation and no questions were asked of the candidate at the end of it.  Indeed no comment was made save that the chairman might have made a general comment that the presentation was interesting, or some such remark.

 

9.       The presentation given by the claimant concerned his experiences as a program manager at the DeBeers diamond research laboratories in Johannesburg, when he was entrusted with certain secret pricing information, whilst making a technical and economic study for the group’s largest mineral research project.  The claimant stated, that when he mentioned his South African experience at the interview, the person who was interviewing on his left, whom he now knows to be Ms Hyvart, asked questions arising out of his subsequent answers to the panel's questions.  When asked he could not recall the questions.  There was some dispute in evidence as to whether Ms Hyvart was interrupting the presentation to ask the questions, this being the claimant’s belief, or whether they occurred during a later session of questioning, during one of the interviewers questions, the evidence of all three members of the panel.  However the claimant stated, that these questions left in his mind a feeling that he was being prejudiced against because of his South African background.  The members of the interviewing panel in their evidence, stated that the questions which they think were the ones that annoyed the claimant, were asked during the question and answer session when Ms Hyvart endeavoured to draw out from the claimant more detail of exactly what his role was in a particular piece of work.  Far from being questions showing a prejudicial attitude toward the claimant, the questions were designed to assist the claimant to develop his answers to his advantage, as she knew from his presentation that he had material that he could draw upon.  The tribunal having considered the evidence carefully in this matter hold that the questions that caused the annoyance to the claimant were indeed asked during Miss Hyvart’s session.  These were asked in order to draw out more evidence from the claimant and improve his scores.

 

10.     Before the panel commenced on its interviewing of the applicants for the posts, members had a discussion as to how they would look at the answers and decided the type of marks that they would award for applicants who demonstrated certain skills and specialisms.  They agreed a bracketing of scores, so that, if for instance in the communications questions the claimant applicant made reference to certain computer skills and familiarity with certain programs, then he or she would be given one set of scores and if the interviewee enlarged on that and gave examples of how he or she had used these programs then a higher group of scores would be brought into play.  The panel agreed who would ask which questions and the two interviewers not asking questions would take as many notes as possible of the answers.  The person asking questions would probably not be able to take a good note of the answers, as that person was endeavouring to maintain eye contact and discussion with the interviewee.

 

11.     The process allowed for supplemental questions to be asked from a list which was provided with each group of questions.  These supplemental questions were designed to encourage the interviewee to build on the first answer, tell the panel more and tell the panel what the interviewee's role was in the particular situation.  The panel was interested, not in what the interviewee was processing, but what action the interviewee took to complete the job that he or she was describing.  There were examples in Mr Beattie's notes where he compared another candidate, named as C, to the claimant and the tribunal noticed how candidate C answered the questions in more depth and consequently obtained more marks.

 

12.     The first set of questions were put by Mr Beattie, these concerned leadership and management.  Ms Houston then asked about resources and people and finally Ms Hyvart asked about communication and IT.  The other members of the panel did not intervene when one of the panel members was questioning the claimant but on each occasion when a member asked his or her questions, he or she could follow up with supplementary questions that occurred out of the answers given.

 

13.     The claimant’s main complaint concerned the scores that he obtained in Ms Hyvart’s questions concerning communication and IT.  He considered that he had done very well on these questions but his scores were not as good as he felt that he deserved.  The tribunal accept the evidence of members of the panel who stated that although he mentioned various computer programmes with which he was familiar he did not expand on the answers in the way that other interviewees did.  The claimant also complained that the scores given by each of the interviewers for this set of questions were very similar.  This he thought showed collusion on the part of the members of the panel.  The tribunal however accept the evidence of the respondents, that this is explained by the bracketing system explained above. 

 

14.     The claimant told the tribunal that he felt he got less time to expand his answers at interview than other candidates.  The tribunal do not accept this and feel that the committee was fair in its allocation of time between the various applicants.

 

15.     The claimant's case is that he was discriminated against because he was a South African.  The tribunal accept that the claimant has lived in South Africa for a number of years; he worked there and married a South African.  However the tribunal, in listening to the evidence of the claimant, could not have told, had they not known, that the claimant was South African.  His voice sounds like an educated person from the islands of Great Britain and Ireland without any particular regional accent.  There was nothing in the documentation in which the claimant applied for the post, which would have alerted anyone reading the documents to the fact that the claimant was a South African.  However these papers were not before the interview panel during interviews and so nothing turns on that and the tribunal accept that the interview panel could not have known that the claimant was a South African.  The most that the members of the panel would have known is that the claimant worked for a number of years in South Africa.  The claimant only mentioned his having worked in South Africa and never said anything else about South Africa to the interview panel.

 

16.     The claimant was marked as being suitable for the post but was placed in the list at number five.  Only 3 posts were available.  The claimant did not obtain the post.  He was however subsequently successful in being appointed to a more junior post in the census office.

 

17.     The claimant when he was told that he had not been successful in the interview wrote to the respondent asking for feedback on the interview.  The claimant was sent a copy of his interview booklet.

 

18.     The claimant wrote a letter of complaint on 8 September 2010 to the first named respondent stating that he believed the treatment he had received at the interview amounted to unlawful discrimination on the grounds of race.  In that letter the claimant set out his complaints about the interviewing process and then asked for information.  A holding reply was sent on the 13 September and a detailed response was given by Mr Wallace of the first named respondent's on 15 October 2010.  The tribunal is of the opinion that this was a reasonably prompt response to the letter of complaint having regard to the detailed allegations contained in that complaint.

 

19.     Mr Wallace explained that HR Connect is a brand name of an outsource team providing a number of HR and payroll services provided to the Northern Ireland Civil Service.  HR Connect’s primary role in recruitment is to administer the recruitment process and staff have no role in making selection decisions on behalf of the client.  The first named respondent therefore merely passed on the complaints to the second named respondent.  Mr Wallace went on in his letter to suggest that if the claimant was still dissatisfied he should speak to the Equality Commission for Northern Ireland.

 

20.     There seems to have been a genuine misunderstanding between the claimant and Mr Wallace regarding the role of HR Connect but this has been explained to the tribunal to the tribunal's satisfaction and the tribunal is of the view that there was no victimisation on the part of either respondent of the claimant in their handling of the claimant's complaints.

 

 

THE LAW

 

21.     Article 6(1) of The Race Relations (Northern Ireland) Order 1997 states:-

 

                    “It is unlawful for a person, in relation to employment by him at an establishment in Northern Ireland to discriminate against another-

 

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

 

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

 

                    (c)      by refusing or deliberately omitting to offer him that employment.”

 

          Article 52 then provides that a complaint of discrimination shall be presented to an Industrial Tribunal.

 

22.     Article 52A provides for the burden of proof to be transferred to the respondent in certain circumstances set out in Article 52A (2):-

 

                    “(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 or harassment against the complainant,

 

                              (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, as the case may be, is not to be treated as having committed that act.”

 

23.     Articles 32 and 33 deal, inter alia, with the conduct of an agent of a party to a claim and render the agent and principal liable for acts of discrimination on the part of the agent, if done with the authority of the principal.

 

 

DECISION

 

24.     The tribunal hold that the claimant has failed to show that he was discriminated against on the ground of his race.  The primary reason for this decision is that the interview panel could not have known that the claimant was South African or indeed a national or resident of any country outside the islands of Ireland and Great Britain.  The claimant therefore failed to substantiate the claim that he was discriminated against on the ground of race.  He failed to demonstrate to the tribunal that the respondents’ interviewing panel was prejudiced against him because of a perceived race or nationality or residence, when the interview panel had no way of forming a view as to what race nationality or residence the claimant was a member of.

 

25.     Even if the tribunal is wrong in this view the tribunal can find no evidence that would lead it to implement the transfer of the burden of proof from the claimant to the respondent.  In order to do this the tribunal must be satisfied that the claimant has shown some evidence of discrimination or harassment on the part of the respondent.  No such evidence was adduced by the claimant. In the opinion of the tribunal the claim is completely unsupported by evidence and is without merit.

 

26.     The tribunal accept the evidence of the members of the panel that the claimant’s answers to the IT and communication questions were not as detailed as those of other applicants.  The other applicants may have been more aware of competence based interviews than the complainant, as these types of interviews are now more widely used in the civil service and larger employers.

 

27.     So far as the claim for victimisation is concerned, the tribunal have carefully examined the documentation presented to it from the letters requiring feedback after the interview and to the letters alleging discrimination and then requesting information from the respondents.  These were dealt with in a timely and proper manner and cannot themselves indicate any victimisation of the claimant.

 

 

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:         21 and 22 June 2011, Belfast

 

 

Date decision recorded in register and issued to parties: