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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Peifer v Oakgrove Integrated College [2013] NIIT 1505_05IT (23 December 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/1505_05IT.html
Cite as: [2013] NIIT 1505_5IT, [2013] NIIT 1505_05IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1505/05
CLAIMANT: James Robert Peifer
RESPONDENT: Oakgrove Integrated College
DECISION
The unanimous decision of the tribunal is that the claims of unlawful sex discrimination are not upheld and are dismissed.
Constitution of Tribunal:
Vice President: Mr N Kelly
Members: Ms V Walker
Mr A Scott
Appearances:
The claimant appeared in person and was not represented.
The respondent was represented by Mr J Dunlop, Barrister-at-Law, instructed by Jones Cassidy & Jones, Solicitors.
Background
1. The claimant applied for the post of a Teaching Assistant (Special Needs) at the respondent’s school. The post had been advertised on 8 July 2005. The claimant was unsuccessful in his application. He claims that he was unlawfully discriminated against by the respondent school on the ground of his gender.
2. The present claim is one of thirteen claims lodged by the claimant in relation to his failure to be appointed to Teaching Assistant posts at the start of the school term in 2005. The claimant initially wanted all these claims to be heard together. Since the claims involved multiple respondents, multiple appointment panels, separate decisions and differing circumstances (in some cases the claimant had been shortlisted and interviewed and in others not), this was not feasible. The claimant has consistently resisted the listing of all these claims. They were the subject of a case-management process over two days in October and December 2012 and each of the claims remaining at that stage were listed for hearing at appropriate intervals. The present claim is the final claim in the series of 13 claims.
3. The claimant in his conduct of the present claim has shown a consistent and studied contempt of the tribunal panel, of the respondent and indeed of the Court of Appeal. He repeatedly and deliberately ignored directions from the tribunal. For example, he accepted and made it plain that he had met the short listing criteria in respect of the present post; that he had been interviewed and that he had been unsuccessful at his interview. He knew that the Court of Appeal in the case of James Robert Peifer v Castlederg High School, Limavady High School, St Patrick’s and St Brigid’s College, Claudy and the Western Education & Library Board had determined that, in such circumstances, the claimant could not pursue an academic claim of indirect discrimination in relation to short listing criteria which he had himself satisfied. He was directed in the course of the earlier Case Management Discussion and at numerous points in the substantive hearing that this was the position and that it had been clarified and emphasised by the Court of Appeal. On each occasion, the claimant signified his utter contempt for this tribunal and for the Court of Appeal by either totally ignoring the direction and by carrying on as if the direction had never been given or by saying ‘yeah, you told me that’ and then carrying on and again ignoring the direction totally.
4. The tribunal considered whether this unfortunate attitude on the part of the claimant had been a result of a genuine and mistaken understanding on the claimant’s part of the legal position relating to his claims. After having observed the claimant over the course of three days, the tribunal has concluded that it was not a genuine and mistaken understanding on the claimant’s part. The claimant has illustrated that he perfectly understood the legal issues involved and the fact that the tribunal was bound by the Court of Appeal’s ruling (with which it agreed in any event). Some 45 minutes into the claimant’s evidence on the first day of the hearing, which had been timetabled to take from 11.00 am to 4.00 pm, the claimant had, despite repeated directions, continued with evidence, or what the claimant regarded as evidence, in relation to statistics and an indirect sex discrimination argument. When directed that he was then being told to stop his evidence because he had failed to respond to repeated directions and had failed to focus on the issue before the tribunal, the claimant immediately switched his evidence to matters loosely related to an allegation of direct sex discrimination. In doing so, the claimant demonstrated that he fully understood the issues and that he fully understood the significance and importance of the Court of Appeal decision. He had simply chosen to ignore the impact of the Court of Appeal decision and to deliberately waste the time of the tribunal for as long as he possibly could.
5. The claimant was also specifically directed that he had to give evidence in relation alleged loss and alleged mitigation of loss. He simply refused to do so. He stated that he required a separate remedy hearing. When he was directed to the plain terms of the Notice for Hearing which stated that the listed hearing was a hearing in relation to both liability and remedy, he again simply chose to ignore the directions of the tribunal. He gave no evidence whatsoever in relation to alleged loss or alleged mitigation of loss. He gave no evidence as to whether he had EU nationality or a current work permit in 2005 or at any stage up to the current date. He gave no evidence of any loss of earnings or indeed of any search for alternative employment in the eight years which has elapsed since 2005. He gave no evidence of injury to feelings.
6. The claimant spent almost all of the time allotted to his final submission on an allegation of indirect discrimination despite repeated directions to the contrary. He again totally ignored those directions and totally ignored the decision of the Court of Appeal throughout the course of his final submission.
7. The claimant on occasion whistled when leafing through documents in a casual and dismissive manner. The claimant repeatedly yawned in a studied and exaggerated manner during the respondent’s final submission. When challenged in relation to the latter behaviour, the claimant stated that he was suffering from ‘sleep deprivation’.
8. In short, the claimant’s conduct during this hearing was rude, contemptuous and the worst behaviour that this panel has either individually or collectively met in the course of a tribunal hearing. For that reason, and because the respondent has indicated its intention to seek an Order for Costs, it is appropriate to set out in more detail the progress of this hearing.
The relevant law
9. At the relevant time, Article 63(1) of the Sex Discrimination (Northern Ireland) Order 1976 provided:-
“63(1) A complaint by any person (‘the complainant’) that another person (‘the respondent’) –
(a) has committed an act of discrimination … against the complainant which is unlawful by virtue of Part III … may be presented to an industrial tribunal.”
10. At the relevant time, Article 3(2) of the 1976 Order provided:-
“3(2) In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if –
(a) on the ground of her sex, he treats her less favourably than he treats or would treat a man; or
(b) he applies to her a provision, criterion or practice which he applies or would apply equally to a man but –
(i) which is such that it would be to the detriment of a considerably larger proportion of women than men;
(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied; and
(iii) which is to her detriment.”
11. The Court of Appeal in James Robert Peifer v Castlederg High School, Limavady High School, St Patrick’s and St Brigid’s College, Claudy and Western Education & Library Board [2012] NICA 21 said:-
“It is clear from the definition that for indirect discrimination under Article 3(2)(b) the application of the provision, criterion or practice must cause a detriment to the claimant.”
12. The Court of Appeal addressed the claimant’s argument that he should nevertheless be permitted to rely on EU law to bring a claim of indirect discrimination. It stated:-
“It follows, therefore, that we reject the appellant’s submission that he can maintain an indirect discrimination claim based on Directive 2002/73/EC in circumstances where he is not contending that the provision, criterion or practice is one which puts him at a disadvantage since his case is that he satisfies each criterion.”
13. If facts are established on which a tribunal could reasonably draw an inference of unlawful discrimination, the burden of proof would shift from the claimant to the respondent.
The hearing
14. There was a brief Case Management Discussion, before the commencement of the substantive hearing, at 11.00 am on the first day. That Case Management Discussion was conducted by the Vice President without a panel. The claimant made several applications. In the first place, the claimant asked the Vice President to recuse himself. He argued that the Vice President had been named as a ‘biased’ individual in several appeals which he stated were still ongoing. He stated that he wanted a different chairperson to hear his claim. That application was refused in an oral decision delivered by the Vice President on the ground that the claimant had no right to insist on a different Chairman for each of his 13 claims and that the Vice President would act properly in accordance with the judicial oath. The claimant referred to a large number of outstanding appeals including what he alleged to be seven outstanding appeals to the Supreme Court and, extraordinarily, on appeal brought by him against a finding in his favour in relation to liability in a separate claim. The claimant appears to have challenged the decision of most, if not all, of the Chairmen or tribunal panels who have heard his various claims.
The claimant then applied for general permission to digitally record the hearing. He suggested that he was relying on a hearing difficulty although no evidence of any such difficulty was produced in the form of a medical report or in any other way. The claimant was, however, allowed to digitally record the hearing on his stated undertaking that he would not use the recording for any purpose not related to the case or to any subsequent appeal.
The claimant also asked that the tribunal should specify the law which was relevant to the subject-matter of the claim in 2005. The claimant was directed that this matter had already been made plain by the decision of the Court of Appeal.
Finally, the claimant again applied for a postponement of the hearing. That postponement was not granted. The Vice President ruled that the hearing had been listed for approximately one year; the claim had been in existence for approximately eight years. The tribunal was ready. The respondent was ready and there were no grounds for yet further delay. It was particularly crucial that cases of this nature should proceed promptly where memories were relatively fresh and we were now already at the stage where further and increasing difficulty would be caused to both parties and indeed to the tribunal by the substantial delay already incurred.
15. The substantive hearing of the claim commenced at 11.00 am before the full panel. The claimant was directed again that his claim was a claim of direct sex discrimination; that he had met the short listing criteria and that he had been shortlisted and interviewed by the respondent. He was directed that he should concentrate on what he alleged had led to his failure to be appointed at interview. He was directed to deal with that interview and to concentrate on what he said were the differences between him and the successful candidates. The claimant was also directed that his evidence-in-chief was timetabled to conclude at 4.00 pm on the first day of the hearing.
16. The claimant commenced giving evidence shortly after 11.00 am. He insisted immediately that his claim was a claim which included indirect sex discrimination. He was directed that unless he could identify any provision, criterion or practice which was indirectly discriminatory and which caused him a detriment, the panel could not deal with any argument of indirect sex discrimination. The claimant persisted with his argument on indirect sex discrimination or as he repeatedly termed it ‘institutionalised’ sex discrimination. He was directed to give evidence at this stage and to leave his submission until a later stage in the procedure.
17. The claimant asserted that he ‘met the criteria for the post’. When directed again that since he had clearly met the short listing criteria and had been interviewed, any argument related to indirect or institutionalised sex discrimination in the educational system was time-wasting. He was repeatedly directed to indicate what he said was wrong in the interview process. He was told that the tribunal would not listen to a lengthy polemic on the role of women in the education system as opposed to the role of men in the education system and that it would not listen to an indirect discrimination argument in relation to short listing criteria which he had himself met. At one point the claimant pretended to understand that the Vice President had stated that education ‘was wrong’. He repeatedly ignored the directions of the tribunal.
18. The claimant introduced documents which he asserted showed the Department of Education had accepted responsibility for the education system and for recruitment and selection procedures in schools. The claimant was asked repeatedly what point he was making at this stage in relation to his case. He failed to do so. He asserted ‘people have duties’. He continued undeterred with what he regarded as evidence. He was directed again to give evidence of alleged direct sex discrimination. He continued with Departmental and general circulars dealing with recruitment and selection. He was directed to say whether he was alleging there was any breach in interview procedure.
19. The claimant eventually gave evidence in relation to the requirement for a quorum for the short listing panel. He resisted repeated attempts to state what his point was in relation to the quorum for the short listing panel. He insisted that he was ‘establishing a few basic principles and thought processes’. Eventually he responded to a repeated direct question from the tribunal and said that the short listing panel had less than the stated quorum.
20. He continued with evidence relating to statistics of the gender make-up of classroom assistants and of staff of the Education & Libraries Boards. He referred to photographs which showed ‘females’. For example, he gave evidence of the number of male teaching assistants in the Belfast Education & Library Board, ie a different employer.
21. The claimant was advised again that he was alleging direct sex discrimination in this case; that he had met the short listing criteria; and that he could not allege indirect discrimination. The tribunal was not looking at the entire education system, it was looking at one interview process. He was told at this point he had wasted in excess of 30 minutes of his timetabled evidence in this way and was directed to proceed. His reply was “I dispute what you said from a legal standpoint”.
22. The claimant was advised again that the Court of Appeal had ruled on this point. He was told not to go there again. He said “I will be going there again” and continued with statistical evidence relating to different Education & Library Boards and with referring to his digital recordings of an earlier hearing in relation to a different claim.
23. The claimant was directed again that he could not challenge, in an indirect sex discrimination claim, criteria which he had himself met. He was told that he appeared to be wilfully intent on ignoring what his case was about. He was directed again to deal with direct sex discrimination. He was directed that his argument in relation to general statistics in the field of education was irrelevant. His answer to that was “If a job description says no black people should bother applying and a ‘brave black person’ applies and gets an interview and scores last and they say he did not smile at interview”. When asked what possible relevance this reasonably bizarre example held for his claim, the claimant shouted in an aggressive manner:-
“He met the criteria, didn’t he sir, he got interviewed, sir, that is a discriminatory criterion sir.”
The earlier direction was repeated.
24. The claimant went immediately back to evidence on statistics. The claimant was again directed to move on and to deal with the relevant issue before the tribunal. The claimant again ignored the direction and continued with statistics relating to the respondent school and the proportion of males and females in the general teaching staff.
25. The claimant continued undeterred with evidence relating to a Case Management Discussion in 2005, the takeover of the Department of the South Eastern Education & Library Board. He then turned to the JNC Circular No 34. He was directed that he appeared to be intent on going over a particular argument about criteria which he had met. Mr Brett, who was at stage representing the respondent, reminded the tribunal that it was bound by the Court of Appeal decision.
26. The tribunal rose for 10 minutes at approximately 11.46 am. The claimant was given the following direction:-
“You may not introduce evidence or argument in relation to criteria which you have met and where you have been interviewed. You are inviting us to ignore the law and the Court of Appeal ruling and to permit you to waste your own time, that of the respondent and that of the tribunal. I want to hear clear evidence of what you alleged occurred in relation to the interview process in this case. I am not going to allow you to stray from that. Unless you are prepared to follow that direction I am going to stop your evidence now. I want you to consider that carefully. We will be back in ten minutes.”
27. In that 10 minute recess, Mr Dunlop, who had been delayed elsewhere, arrived at the tribunal and took over representation of the respondent.
28. In ease of Mr Dunlop and to provide a further opportunity for the claimant to consider his position, the tribunal repeated its direction and explained again its position. The tribunal stated that it was concerned that it was being used to rehearse an argument that had already gone all the way to the Court of Appeal and had been determined. The tribunal referred to the Court of Appeal decision. The tribunal quoted directly from the Court of Appeal decision. The tribunal expressed concern that an argument which had been rehearsed at tribunal, had gone on appeal and had been determined, should be rehearsed again before the tribunal at great expense to the tribunal and the parties. It stated that this was a matter best suited for appeal. The claimant was again advised that the tribunal was bound by the Court of Appeal ruling.
29. The parties were again clearly directed that the tribunal was considering ruling that the claimant’s evidence was at an end unless he stopped pursuing indirect sex discrimination and stopped wasting the tribunal’s time. The tribunal panel then rose for a further 10 minutes to allow Mr Dunlop to take instructions on what had been happening and for the claimant to consider his position further. The claimant was specifically advised that if he was not prepared to accept the directions of the tribunal that would be an end of his evidence.
30. On resumption, the claimant was asked if he was prepared to accept the direction and to restrict his evidence to alleged direct discrimination. He avoided answering this question by asking for permission to insert a page in his bundle. He was again asked if he was prepared to accept the direction and he said “I will be appealing that issue” and then said “OK so long as you understand that I will be appealing that decision (to eliminate indirect discrimination)”.
31. Mr Dunlop intervened to state that the Court of Appeal decision had been ‘crystal clear’ on that point and that no case of indirect discrimination arose in the present circumstances.
32. The claimant was advised that the tribunal was not here to play games and that if he crossed the line again his oral evidence-in-chief would be stopped.
33. The claimant resumed his evidence and handed in a document relating to the pay scales for the post. He referred to the ‘qualified scale’ for teaching assistants and stated that “We need to delve into this a little bit more” and referred to listed teaching qualifications. Mr Dunlop objected that the claimant was again continuing to pursue a claim of indirect sex discrimination.
34. The claimant was warned about his behaviour again. He was told that he was on a final warning. The claimant responded by whistling as he leafed through documents. He returned again to the issue of pay scales. He was directed to move on. He refused to move on. He was advised that he could continue but if it turned out to be an indirect sex discrimination point the tribunal would act and would stop his evidence. He was asked whether he wished to try the patience of the tribunal further.
35. The claimant immediately shifted gear and moved to the training of the panel members. This was potentially a point in relation to direct sex discrimination. In doing so he demonstrated that he knew exactly how far he could push the tribunal and that he knew exactly what the distinction between indirect sex discrimination and direct sex discrimination was.
36. However, he returned quickly to the issue of the job advertisement and the short listing criteria which he had met. He was directed again to move on to the interview process. He again ignored that direction. The direction was repeated. He was directed that he had five minutes to come to the point.
37. He continued with evidence in relation to the criteria that he had met and he ignored the earlier directions. The direction was repeated. He ignored it again. He continued with evidence in relation to the same short listing criteria. He was warned that he had three minutes at that stage to come to the point. He continued with his evidence in relation to the short listing criteria which applied in earlier competitions and which appeared in earlier advertisements. He again ignored the direction. He continued with evidence in relation to the role of mathematics in the curriculum. He was advised at that point that his five minutes had expired and he had not come close to the direct discrimination point. He stated:-
“I’m right at the crux. The next page is the quorum issue.”
38. The claimant was advised that he had been given warning after warning which he had chosen to ignore and that his evidence was at that point at an end. He immediately shifted gears again and spoke about the failure to have three voting officers on the short listing panel to establish a quorum and alleged that the criteria had been broadened to allow successful female candidates to be appointed. The claimant was advised that the panel had concluded that he was playing games with the tribunal and was now, finally, introducing evidence which was potentially relevant to any claim of direct sex discrimination. It was noted that he had only chosen to do so when he had yet again pushed the tribunal right to the point where his evidence was about to be stopped.
39. The claimant was asked to specify or to explain how the lack of a quorum was discriminatory on grounds of sex. He evaded the question by moving to the criteria which he stated had been changed to include “either a recognised teaching qualification or experience as a teaching assistant”.
40. Mr Dunlop objected and stated that this was yet again an indirect sex discrimination argument. The claimant had satisfied the criteria and had been interviewed. The claimant’s response was “Wrong!”. The claimant argued that people had been interviewed who should not have been interviewed.
41. The claimant was again directed to say how the interview panel had discriminated against him. He alleged that the interview panel had allowed female candidates to be interviewed who should have been rejected from the interview process.
42. The claimant then moved onto the minimum criterion of five GCSEs at Grades A to C or equivalent including English and Mathematics. He alleged, for example, that Candidate 25 had no maths qualification at GCSE level. He also challenged the short listing of Candidate 36 because she had no relevant qualifications or experience. This was clearly incorrect; that candidate had worked as an assistant for approximately three months. From that point onwards, in his evidence, the challenged the quorum for the short listing panel, the short listing criteria and who had been eventually selected for interview. When given the direction to concentrate on direct discrimination, he responded again by whistling as he leafed through papers. He continued undeterred. He was directed again to concentrate on direct sex discrimination.
43. After some one hour thirty-six minutes of evidence (discounting breaks) the claimant moved onto a comparison of his interview notes with the interview notes of other candidates. He disputed the difference in marking. He did not regard the fact that other candidates had referred specifically in their answers to, for example, the Senco or to the individual education plans, when he had not referred to these matters, was in any way important.
44. The panel rose at 1.00 pm for lunch to return at 2.00 pm for a maximum further two hours of the claimant’s evidence-in-chief.
45. At 2.00 pm, the claimant resumed evidence and at that point concentrated on the other candidates who were selected for appointment. He was directed to give his evidence and to leave submissions to a later stage in the process.
46. The claimant was directed at this point that he had chosen not to give any evidence in relation to alleged loss or to alleged mitigation of loss. He was directed that he needed to do so and that the Notice of Hearing had made it plain that this was a hearing to determine both liability and remedy. It was up to the claimant to determine whether he wished to produce such evidence but if he failed to do so at that point it could have potentially adverse results. The claimant refused to do so, stating that he wanted a separate remedy hearing. He wanted to get medical records (after eight years). He stated he would add this to the appeal.
47. The claimant concluded his evidence-in-chief at approximately 2.15 pm. He had at that stage approximately one hour and forty-five minutes remaining which had been timetabled for his oral evidence-in-chief and he chose not to use that time. It is particularly of note that there was more than enough time available for the claimant to have addressed the issues of alleged loss and alleged mitigation of loss. He chose again to ignore a clear direction of the tribunal.
48. The claimant again accepted in cross-examination that he had met the short listing criteria for this post and that he had been interviewed for the post. He accepted that the interview panel, as opposed to the short listing panel, was quorate and that it comprised both men and women. He accepted that of the eight males who applied for the position, four of those eight males had been interviewed for the post. He accepted that one male and four females were initially appointed to the initial five posts and that two female candidates had been appointed as reserves. Those reserves had taken up post at the start of the term in September. He also accepted further that he could not remember what he had said or how he had performed at the interview which had occurred some eight years earlier. When he was specifically asked if he could comment on these issues his response was “Of course not”.
49. When asked if he was prepared to make a serious allegation of unlawful sex discrimination in relation to his failure to be appointed when he could not remember what he had said at interview, he said “Absolutely”.
50. When taken through the differences between the brief notes which had been taken in relation to his interview responses and the interview responses of those with whom he sought to compare himself, he felt that the more detailed answers of other candidates who referred to the Senco (a Specialist Educational Needs Co-ordinator) or to the individual education plans were “Unnecessary”. These matters were “Obvious”, and did not need to be mentioned.
51. The claimant accepted that he had first raised a query about Candidate 25 not possessing minimum qualification for interview, some eight years after the interview process. He accepted that his interview score was 42 points and that the lowest scored candidate deemed acceptable for appointment was awarded 60 points. When it was put to the claimant that he still would not have been selected even if one or more of the successful candidates were removed from the equation, he failed to address that point. However, he accepted that eight other candidates who scored higher than him had also been assessed as unsuitable for appointment and that this list of eight candidates had included female candidates. When asked about the male who had received the second highest mark and who had been appointed to one of the five initial posts, the claimant stated that the individual had worked previously in the respondent’s school and was “Known”. He did not address the fact that a male had been appointed when he alleged that there had been a conscious or unconscious conspiracy to prevent that happening.
52. At the conclusion of the claimant’s cross-examination, and re-examination, the respondent indicated that it intended to call three witnesses. The proposed three witnesses were timetabled with one hour each for evidence-in-chief and one hour and thirty minutes each for cross-examination by the claimant. The first two respondent witnesses were therefore to be dealt with on the second day of the hearing, ie Tuesday 10 December 2013, and the remaining proposed witness on the morning of the third day, Wednesday 11 December 2013. Oral submissions were to be heard on the afternoon of the third day.
53. The first respondent witness was Ms Bernadette Webster. She had been chair of the interview panel. She accepted that the short listing panel (which shortlisted the claimant) was not quorate according to the rules of the scheme of management. This short listing panel had sat on 8 August 2005 There had been a difficulty in getting persons available for the short listing panel at that stage in August in the holiday season. Furthermore, teaching assistants were crucial and such staff needed to be in place for the start of the term in September to provide assistance to specified pupils in accordance with Statements of Special Educational Needs.
54. The job advertisement had specified a minimum of five GCSEs at A to C level in English and Maths or the equivalent. It had referred to a preferred additional qualification. The school knew at that stage that it was likely to need several teaching assistants. In the event, it ultimately needed seven teaching assistants. The short listing panel decided to maintain the minimum initial qualification of five GCSEs at A to C level in English and Maths or equivalent. However, to produce as wide a panel for interview as possible, given the number of posts potentially needed, the short listing panel specified that the short listing criteria (which again the claimant satisfied) should be enhanced to require either [tribunal’s emphasis] a relevant qualification or [tribunal’s emphasis] experience as a teaching assistant. Either was sufficient to gain an interview but the posts were awarded on the conduct and marking of candidates at the interview.
55. There were 36 applicants for the teaching assistant posts. Twenty-one candidates were shortlisted for interview. Fifteen candidates were therefore excluded from interview. In the event, 20 candidates were interviewed. These comprised 16 females and 4 males. The initial appointments were four females and one male. The interview panel was held on 16 August 2005. It comprised Mrs Cowan, the principal, Mr Martin, a governor, Mr Harkin, a governor, Ms McLaughlin, a Senco, and Mrs Webster. Each candidate was individually marked by each member of the panel after each interview. Immediately thereafter and before moving onto the next candidate an agreed mark was reached and recorded. The questions, who should ask them, and their rating, had been decided in advance by the panel.
56. Mrs Webster, like the claimant, stated that she could not remember the detail of the interview process which had occurred some eight years previously. However, she stated that her limited memory of events was that the claimant’s responses were shorter and less detailed than the responses of other candidates. Furthermore, the claimant had not mentioned either Senco or the individual education plan set up under statements of special educational needs for individual pupils who required a teaching assistant.
57. In relation to Candidate 25, Mrs Webster was asked about the claimant’s new allegation that this candidate did not have an A to C pass in GCSE Maths or its equivalent. Mrs Webster could not remember whether the panel had chosen to regard the double award of Science as ‘equivalent’ or whether it had simply made a mistake in reading a closely filled application form.
58. The claimant commenced his cross-examination of Mrs Webster at 11.05 am to finish at the latest at 12.35 pm. In the event, he finished his cross-examination at 12.10 pm with 25 minutes unused of his timetabled cross-examination.
59. The second respondent’s witness was Mr Kenny Martin, a parent governor. He commenced his evidence at 1.10 pm on Tuesday 10 December 2013. His background was in the local further education college and he was responsible there for dealing with special educational needs and early years training. The respondent school had attempted to contact him to take part in a short listing interview but they had not been able to make contact and he had not taken part in that short listing exercise. He had taken part in the interview process.
60. Mr Martin’s evidence was that the claimant was marked 18 marks below the cut-off point between suitable candidates and candidates who were not suitable for appointment. The claimant had in fact been the fourth from the bottom of those interviewed. Looking at his interview notes, he stated that the claimant’s interview was weak and had lacked particulars. His view was that other individuals had mentioned either the Senco, the statement of special educational needs, the education psychologist report, school strategy, targets for the student, etc. The claimant did not mention these matters and the responses noted implied that it would be the claimant who would decide what each statemented child actually needed rather than a proper assessment made in relation to the statement, the school strategy, the input of the Senco and the needs of the individual pupil.
61. Mr Martin stated again that each member of the panel would take their own brief notes as each interview proceeded and would give their own marking. They would then consult at the end of each interview and reach an agreed marking for that candidate before moving on to the next. The notes were therefore not meant to be kept for any period of time and were simply highlights for an almost immediately agreed marking. He gave evidence in relation to the markings for the claimant, and for the markings for Candidates 6, 22, 23, 25, 28, 33 and 36, ie the claimant and the five initial appointees and the two reserve appointees who all started work in September 2005. He stated that he was satisfied with the different marks awarded in respect of the different candidates.
62. The claimant’s cross-examination of Mr Martin started at 2.00 pm to finish no later than 3.30 pm. The claimant concluded his cross-examination at 3.00 pm approximately with some 30 minutes left unused of this timetabled cross-examination. In the course of his cross-examination, the claimant appeared to be arguing that only those candidates who had a relevant qualification should have been shortlisted for interview. Mr Martin was, however, was not on the short listing panel. The claimant also suggested that it was inevitable that a post holder would have had to deal with the Senco and with the statement of special educational needs. As an interviewee, the claimant argued that he did not have to refer to these matters; they were ‘obvious’.
63. At the conclusion of the cross-examination, Mr Dunlop, for the respondent, asked for time to take instructions and to consider whether the respondent needed to call the third proposed witness on the following morning. The tribunal rose for 15 minutes to allow that time. On the resumption of the hearing, Mr Dunlop informed the tribunal that the respondent would not be calling the third proposed witness and that its evidence had closed at that point.
64. The tribunal then timetabled the oral submissions of the parties for the following morning, ie on Wednesday 11 December 2013. The respondent was told that it would go first to allow the claimant, as an unrepresented litigant, the opportunity to consider everything that was to be said. The respondent’s submission was therefore timetabled from 10.00 am to 11.00 am. The tribunal stated that there would then be a one hour break to allow the claimant to make the final preparations and final amendments to his submission which would then take place from 12.00 pm to 1.00 pm.
65. Both the claimant and the respondent provided written submissions which they used as the basis for their oral submissions. Those submissions are attached to this decision. The respondent’s submissions concluded within the time allotted. The claimant, despite repeated directions and a final extension of five minutes, pursued the issue of alleged indirect sex discrimination and eventually had to be stopped. At the point where the claimant’s submission had to be stopped, the claimant’s submissions had become particularly incoherent and irrelevant. The claimant gave the tribunal the clear impression of someone who was deliberately continuing to speak in excess of the time-limit so that he would ultimately be stopped. He was, at the point where he was coming up to the expiry of his five minute extension, choosing to read aloud extracts from the Teacher’s (Terms and Conditions) Regulations and to talk about NVQs and the PGCE.
66. In the course of his final submission, the claimant was directed several times to stick to the claim before the tribunal. He was specifically warned that he was going to run out of time because he persisted in raising issues and points of law which had been ruled upon by the Court of Appeal and which had therefore been ruled out by this tribunal. He was also warned that he was wasting time going over evidence relating to a matter that was not in dispute, ie that the short listing panel was not quorate according to the rules of the scheme of management. He was reminded again when 15 minutes, 10 minutes and then 5 minutes remained of his original scheduled time. When that original scheduled time had expired, he was told that he had repeatedly ignored directions and had repeatedly wasted time. He was told that he had five final and additional minutes to come to the point and to address the issue. He was told that if he chose to waste that time, it would be up to him. The direction appeared to have little effect and he was reminded when he had three minutes, then one minute to go. His response on each occasion was to say “Thank you” and then to continue unaffected.
Decision
67. It is common case that the claimant met both the minimum and the enhanced short listing criteria and that he had been shortlisted and subsequently interviewed.
68. There had been 36 applications in response to the advertisement. Eight males and 28 females had applied.
69. The short listing panel had not been quorate according to the rules of the scheme of management. However, that lack of a quorum affected both males and females equally and seemed to have no particular significance in relation to alleged sex discrimination. Certainly the claimant was unable to point to any reason why this issue could or would have impacted adversely on males rather than on females. Instead, it seems to be a technical breach which impacted equally on males and females. The tribunal has considered the reason put forward for the failure, ie the time pressures in the midst of the holiday season and the need to have relevant, and important, staff in place for the start of the school term on 1 September 2005. While a counsel of perfection would have dictated that the respondent school should have had planned and arranged processes at a much earlier date, the respondent school would not necessarily have known at an earlier stage which new pupils would attend that school and therefore which pupils would be statemented and assisted. In any event, the tribunal accepts that efforts had been made by the respondent school to establish a quorum but those efforts had been unsuccessful. The tribunal can see no grounds on which it would be reasonable to infer unlawful discrimination on that point, either taking that point in isolation or by taking it into account with the other matters raised by the claimant.
70. As indicated above, it was difficult to discern what claim the claimant was making in this particular case other than taking an opportunity to rehearse an argument that the educational system generally favoured the employment of females and to pursue an argument that others had been shortlisted for interview who should not have been shortlisted for interview. In relation to his argument about general or institutionalised indirect sex discrimination, the Court of Appeal has ruled on this matter and the matter is, as far as this tribunal is concerned, closed. The claimant repeatedly insisted, in the circumstances of this case, that he should be entitled to bring a claim of indirect sex discrimination in respect of criteria which he had himself satisfied. That was incorrect. The only proper claim before the tribunal was a claim of direct sex discrimination.
71. The claimant alleged certain candidates were shortlisted for interview where they should not have been shortlisted and that this therefore was the basis for a reasonable inference of unlawful sex discrimination. The claimant, however, accepts the proportion of male and female candidates was consistent throughout the exercise, from the application stage, to the short listing stage, to the initial appointment stage. The allegations concern (in the claimant’s words) an ‘unconscious’ conspiracy. This conspiracy appears to have been remarkably ineffectual as it worked its way through the interview process.
72. The claimant appeared to have no particular point to make about the qualifications by Candidate 6 and that candidate’s short listing.
73. In relation to Candidate 22, the claimant alleges she did not have the minimum qualifications of GSCE Maths and English or their equivalent. That provision for ‘equivalence’ has particular significance in a school in Londonderry which is obviously close to the border and where educational qualifications gained in the Republic would be relatively common for both students and staff. The tribunal accepts the evidence before it that the Leaving Cert in the Republic falls between the GCSE and A Levels. Therefore the candidate who indicated a Leaving Cert pass in English and Maths was properly regarded as having met the minimum qualifying standard. It is perhaps noteworthy that the claimant lives in Londonderry and has apparently worked as a supply teacher in Londonderry. The claimant would therefore have been aware of the equivalence between Leaving Cert passes and GCSE passes. It is therefore difficult to understand what the claimant’s motivation was for raising this allegation.
74. The claimant appeared to have no particular point to make about the qualifications of Candidate 23 and that candidate’s short listing other than to assert that this candidate was a male and was ‘known’.
75. In relation to Candidate 25, the claimant alleges again that the candidate had not shown that he/she had met the minimum qualification. This was an allegation raised some eight years after the event. The tribunal accepts that the respondent’s witnesses were not at this stage in any position to meaningfully explain what their reasoning was at that particular time. The tribunal accepts that it was either a simple mistake on their part, or a decision to regard a double-award in Science as establishing equivalence. Nevertheless, there is no evidence on which a reasonable inference of sex discrimination could be drawn, either as a single issue or in conjunction with other points raised by the claimant. The facts have to be assessed against a background where the proportion of males and females remained consistent from the appointment stage to the short listing stage and to the stage of the five initial appointments. This was at most, a mistake from which the claimant, given his marking and his relatively low standing in the interview results, could not have derived any benefit.
76. In relation to Candidate 36, the candidate did satisfy both the minimum and the enhanced short listing criteria. She had experience as a teaching assistant for a period of some two to three months. Again, the claimant has chosen to ignore the ‘and/or’ in the short listing criteria and to pursue at length an argument which is untenable, ie an argument that only those who had teaching qualifications should have been shortlisted.
77. In relation to Candidate 33, the candidate had a BTech National Diploma in Early Years. The tribunal accepts the evidence of Mr Martin that the title of qualifications in this area, given by a range of institutions, varied and that this BTech was the same as a BTech National Certificate in Nursery Nursing. The claimant may, and did, simply assert that this is incorrect. However, the respondent’s evidence before the tribunal was not in any way effectively rebutted after eight years. There is nothing in this point on which a reasonable inference of unlawful sex discrimination could be properly be drawn.
78. In relation to Candidate 28, the candidate met the minimum qualification, in that she had passes in the Republic’s Leaving Certificate. She had worked as a classroom assistant and indeed had a NVQ 3 in Childcare and Education.
79. The respondent’s decision to proceed with an inquorate short listing panel on 8 August 2005 may have been technically incorrect. However, a technical breach of internal procedure, particularly one which has been explained, does not equate automatically with sex discrimination. The only other point of substance raised by the claimant in relation to the short listing exercise was the short listing of Candidate 25. At its height, this appears to the tribunal to be a mistake in reading a closely worded application form. It is entirely insufficient to enable a tribunal to reasonably infer unlawful sex discrimination, given the fact that the proportion of males and females remained consistent throughout the process. Even with the appointment of the final two reserve candidates, who were both females, there is nothing in any of this upon a reasonable inference of unlawful sex discrimination could be properly be drawn.
80. The claimant also alleged that the interview stage had been tainted by the introduction of ‘females’ who he alleges should never have been shortlisted. He invited, or appeared to invite, the tribunal to draw an inference of unlawful direct sex discrimination. He referred to three candidates who were interviewed and who were successful; Candidates 25, 22 and 36.
81. The first point to note is that even if those three candidates had been eliminated at the short listing stage, the claimant still would not have been selected. He was significantly below the cut-off point of 60 marks. There were eight other candidates who had scored higher than the claimant who were also below 60 marks. The claimant’s marking would not have changed. On his performance at interview, he was marked as unsuitable for appointment.
82. The enhanced criterion at the short listing stage appears to the tribunal to have been reasonable and appropriate. Either a relevant qualification or experience as a teaching assistant was sufficient to proceed to an interview. Even if the tribunal had jurisdiction to consider a claim of indirect sex discrimination, it would have determined that both the minimum and the enhanced criteria were objectively justified and that no indirect discrimination existed.
83. The markings at interview stage appear to have been appropriate and explained by the noted responses and by the respondent’s evidence. The claimant’s responses at interview clearly lacked detail compared to other, higher marked, candidates. The claimant did not allege that he had given detailed answers. He accepted that he had not done so. He argued instead that such answers were ‘unnecessary’.
84. Even if the burden of proof had shifted to the respondent (and it has not) the tribunal concludes that it accepts the clear and consistent evidence of the respondent’s witnesses. Even if that burden of proof had shifted, it would have concluded that the respondent had discharged any onus of proof that might have been placed upon it and that its decision-making in this instance was entirely free of unlawful sex discrimination.
Vice President:
Date and place of hearing: 9 – 11 December 2013, Belfast
Date decision recorded in register and issued to parties: