Industrial Tribunals Northern Ireland Decisions

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Cite as: [2013] NIIT 1506_5IT, [2013] NIIT 01506_05IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1506/05

CLAIMANT: James Peifer

RESPONDENTS: 1. Belfast Model School for Girls

2. Belfast Education & Library Board

DECISION

The unanimous decision of the tribunal is that the claimant’s claims of direct and indirect sex discrimination against the respondents are dismissed.

Constitution of Tribunal:

President: Miss E McBride

Members: Mr J Smyth

Mr J Hughes

Appearances:

The claimant appeared in person.

The respondents were represented by Mr A Colmer, Barrister-at-Law, instructed by the Education & Library Board’s Solicitors.

Reasons

1. The claimant claimed that he had been subjected to direct and indirect sex discrimination by the respondents in not being shortlisted for the post of special needs Classroom Assistant at the Belfast Model School for Girls (the first respondent) in July 2005. The respondents denied the claimant’s claims.

Issues

2. A Case Management Discussion took place on 4 October 2012 to list this case for Hearing. Following discussion with the parties, the Vice President ruled that the appropriate statement of legal and factual issues for this Hearing to consider were those shown in the respondents’ “draft” statement. Those issues are:-

Factual Issues

1. Why was the claimant not shortlisted for interview?

2. Was the claimant not shortlisted for interview because he is a man?

3. Was the claimant not shortlisted for interview because the shortlisting panel took the view that he did not satisfy the shortlisting criteria?

4. Did the claimant satisfy the shortlisting criteria?

Legal Issues

1. Was the claimant subjected to direct discrimination contrary to the Sex Discrimination (Northern Ireland) Order 1976? That is, in failing to shortlist the Claimant, did the Board of Governors non-teaching Appointments Committee treat the claimant, on the grounds of his sex, less favourably than it treated or would have treated a woman?

2. If the claimant is alleging he was subjected to indirect discrimination contrary to the Sex Discrimination (Northern Ireland) Order 1976 by the respondent in not being shortlisted:-

(a) Did the shortlisting panel apply to the claimant a requirement or condition (provision, criterion or practice) which it applied or would apply equally to a woman, but (i) which was such that it would be to the detriment of a considerably larger proportion of men than women, (ii) which the shortlisting panel cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and (iii) which was to the claimant’s detriment.

(b) What was the requirement or condition (provision, criterion or practice) which was applied by the respondent to him which it applied or would apply equally to a woman but which is such that the proportion of men who can comply with it was considerably smaller than the proportion of women who could comply with it?

(c) The grounds upon which the claimant alleges that this requirement or condition (provision, criterion or practice) was to his detriment because he could not comply with it.

3. For the purpose of the Sex Discrimination (Northern Ireland) Order 1976, did the respondent discriminate against the claimant by refusing or deliberately omitting to offer the claimant employment?

4. If the respondent did discriminate against the claimant, what relief is the claimant entitled to pursuant to Article 63 of the Sex Discrimination (Northern Ireland) Order 1976?

The relevant statutory provisions

3.1 As set out at paragraph (17) of the judgment of Morgan LCJ in James Robert Peifer and Castlederg High School, Limavady High School, St Patrick’s and St Brigid’s College, Claudy and Western Education and Library Board, at the time the claimant presented this claim on 19 August 2005, the jurisdiction to do so was contained in Article 63(1) of the Sex Discrimination (Northern Ireland) Order 1976 as amended (the 1976 Order) which 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.”

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

3.2 As set out at paragraph (18) of the judgment the definition of discrimination in employment at the relevant time was contained in Article 3 of the 1976 Order:-

“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.

(3) Paragraph (2) applies to –

(a) Any provision of Part III …”

3.3 Article 4 of the 1976 Order makes it clear that the provisions relating to sex discrimination against women are to be read as applying to the treatment of men and Article 7 makes clear that the comparison of the cases of different sexes under Article 3 must be such that the relevant circumstances in the one case are the same or not materially different in the other.

3.4 The burden of proof which applies in relation to any complaint presented under Article 63 to an industrial tribunal is set out at Article 63A of the 1976 Order which provided:-

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

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

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

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

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

Sources of Evidence

4.1 At the Case Management Discussion on 4 October 2012, the Vice President ruled that, after discussion, he had taken the view that this was not the type of case where the tribunal’s directions were likely to be obeyed or followed to the letter and he therefore ruled that this, unusually, was the type of case which would be best dealt with by oral evidence.

4.2 The tribunal heard evidence from the claimant on his own behalf and from:-

Ms Logan, the Special Educational Needs Co-ordinator at the first respondent;

Mr Graham, Principal of the first respondent and Secretary to the Board of Governors of the first respondent;

Mrs Greer who was Chairperson of the Board of Governors at the relevant time;

Ms Angus, a senior human resources advisor at the second respondent;

Mr McKee who was a teacher member of the Board of Governors of the first respondent at the relevant time; and

Miss Early who was a teacher member of the Board of Governors at the relevant time;

on behalf of the respondents.

4.3 In addition, the tribunal was referred to a number of documents in bundles that had been provided by the parties and to the judgments of the Northern Ireland Court of Appeal in respect of other claims made by the claimant. Those judgments were in a separate bundle that had been prepared by the respondents. The tribunal also heard closing submissions from the claimant and Mr Colmer following the completion of the evidence.

Case Management

5. In light of the guidance given by the Northern Ireland Court of Appeal in Veitch –v- Red Sky Group Ltd (2010) NICA 39, the President gave the parties the opportunity to agree a timetable for evidence and submissions at the outset of the Hearing, to ensure that the case would be completed within the five days allocated to it. The parties were unable to agree a timetable. The President therefore set a timetable with the parties to ensure that the evidence and submissions would be completed within the five days allocated to the case. The claimant and Mr Colmer were given an indication if they were coming close to the expiry of the allocated time and the claimant was given additional time to cross-examine the respondents’ witnesses and to make his closing submissions.

Applications

6. Towards the end of the second day of the Hearing, the claimant referred to a number of applications he had made between the Case Management Discussion on 4 October 2012 and the commencement of this Hearing, in letters dated 11 October 2012, 26 October 2012 and 2 November 2012 which the Vice President had directed he could raise at this Hearing. Having considered the claimant and Mr Colmer’s representations in relation to the applications the tribunal issued its rulings and reasons orally at the Hearing. In light of the guidance given by Girvan LJ in the Veitch case the tribunal has also recorded its rulings and reasons at Appendix A. The claimant also applied for the Hearing to be extended into a sixth day i.e. Monday 10 December 2012 for closing submissions. Having considered the claimant and Mr Colmer’s representations the tribunal refused the application. The tribunal’s reasons which were given orally at the Hearing are set out at Appendix B.

Facts

7. Having considered the evidence, both oral and documentary, the tribunal made the following relevant findings of fact on a balance of probabilities.

7.1 On 14 June 2005 the post of Classroom Assistant (Special Needs) at the first respondent was advertised in the Belfast Telegraph. The essential criterion for the post was set out in the job advertisement. It required candidates to have a minimum of one year’s experience working with a child/children with special educational needs. The advertisement also stated that further information including the preferential criterion and application forms were available from the second respondent and that the closing date for receipt of applications was 1 July 2005.

7.2 The job description confirmed the essential criterion and set out the preferential criterion which was the holding of a relevant qualification. A list of relevant qualifications for classroom assistants was set out in JNC Circular No 34 which was attached to the job description.

7.3 The application form which all candidates were required to complete contained the following statement at the outset:-

“APPLICATION FOR EMPLOYMENT

The information requested on this application form enables the board to assess your eligibility for this post. Please give the required information where it is asked for on the application form. A curriculum vitae is not acceptable. Only those applications which, from the information supplied on this form, appear to meet the advertised criteria will be considered.”

7.4 The letter which was issued by the second respondent with all application packs made it clear to all potential candidates that it was the responsibility of each candidate to ensure that “all necessary relevant information was included in your application to enable the board to assess eligibility for consideration for appointment”.

7.5 Candidates were not required to send documentary proof of their qualifications with their application forms. Verification was only carried out in respect of the candidate who was recommended for appointment at the same time as other checks, including checks for criminal convictions, were being carried out. Verification of the relevant qualification of the candidate recommended for appointment was not carried out in this case. That was because the relevant certificate was already on her personnel file as she had been working as a classroom assistant in a school within the second respondent’s area.

7.6 Fourteen persons applied for the post: 13 women and one man, the claimant. A shortlisting meeting took place on 4 July 2005. It was conducted by members of the non-teaching Appointments Committee of the first respondent’s Board of Governors and was made up of:-

(i) Mrs Greer who had been the Principal of two schools and a lecturer at Stranmillis. She had been appointed to the first respondent’s Board of Governors by the second respondent and was Chairperson at the relevant time.

(ii) Mr McKee who was a teacher and Head of Modern Languages at the first respondent school at the relevant time. He was a teacher member of the Board of Governors.

(iii) Miss Early who is a teacher and Head of History at the first respondent school. She was also a teacher member of the Board of Governors.

7.7 Mr Graham, the Principal of the first respondent, was also Secretary to the Non-Teaching Appointments Committee and attended the shortlisting meeting in that capacity with the school secretary, Ms Lowry. The second respondent had sent the application forms to him prior to the shortlisting meeting with a letter informing him that the Board of Governors could proceed to select, from the applications, the person whom it wished to recommend for appointment. In the letter, the second respondent drew Mr Graham’s attention to certain information for the Board of Governor’s consideration in the selection process. In relation to reasons for not shortlisting a candidate, the letter stated:-

“Where shortlisting is undertaken and candidates are rejected it is important that you record on such candidate’s application form the reason(s) why he/she was not shortlisted i.e. a note should be made of the particular criteria the candidate failed to meet.”

7.8 Prior to the shortlisting meeting, Mr Graham carried out his own assessment of the candidates to ascertain whether a manageable number of candidates would be likely to be shortlisted for interview if the shortlisting panel:-

(i) applied the essential criterion only; and

(ii) applied both the essential and preferential criteria.

Mr Graham did not provide his handwritten assessment sheet which contained the candidates’ names to the members of the shortlisting panel. Instead he provided each of the shortlisting panel members with a typed document entitled ‘Assessment Schedule’ which had three columns headed ‘Name’, ‘Essential’ and ‘Preferential’. The assessment schedule referred to each candidate by number and it set out Mr Graham’s assessment of whether they met the essential and preferential criteria using a typed √ or an X.

7.9 According to Mr Graham’s anonymised typed assessment schedule, eight candidates were likely to be shortlisted if only the essential criterion was applied and six candidates were likely to be shortlisted if the essential and preferential criteria were both applied.

7.10 Following discussion at the shortlisting meeting, and before they had been given the names of the candidates or their application forms, the shortlisting panel unanimously agreed to apply both the essential and the preferential criteria for shortlisting to keep the number of shortlisted candidates to a manageable number. They also decided that unless a candidate met the essential criterion, the candidate would not be shortlisted, without consideration of whether they met the preferential criterion.

7.11 Each member of the shortlisting panel was then given the candidates’ application forms and a further assessment schedule, with Mr Graham’s typed assessment of each candidate against each criterion but this time with the names identified. They read through each of the fourteen application forms, looking firstly for evidence that the candidate met the essential criterion, from the information supplied and, if so, whether the candidate met the preferential criterion as well.

7.12 They did not record their individual assessments on the assessment schedules which had been provided to them. Instead they discussed the information supplied by each candidate on his/her application form until they reached a unanimous decision as to whether or not the candidate met the essential criterion.

7.13 The shortlisting panel unanimously decided from the information supplied by the 14 candidates on their application forms that:-

(i) 5 candidates: 4 women and 1 man, the claimant, did not meet the essential criterion and they were not shortlisted, without consideration of whether the information supplied by them on their application forms demonstrated that they met the preferential criterion;

(ii) 9 candidates, all women, did meet the essential criterion and their application forms were also assessed against the preferential criterion;

(iii) 3 of those 9 female candidates did not meet the preferential criterion and they were also not shortlisted; and

(iv) 6 of those 9 female candidates did meet the preferential criterion as well as the essential criterion and they were all shortlisted.

7.14 Ms Lowry, the school secretary, recorded the shortlisting panel’s unanimous decision on one of the assessment schedules by:-

(a) writing “yes” against the names of the 6 candidates who met both criteria in the column headed ‘Name’;

(b) writing “no” against the names of the 5 candidates who did not meet the essential criterion in the column headed ‘Essential’; and

(c) writing “no” against the names of the 3 candidates who met the essential criterion but not the preferential criterion in the column headed ‘Preferential’.

The claimant’s claim of direct discrimination

8. The claimant claimed that, by not being shortlisted, he had been treated less favourably than the six female candidates who were shortlisted because he was a man. In support of his claim the claimant alleged that:-

(i) he met the essential and preferential criteria and should therefore have been shortlisted for interview;

(ii) none of the six female shortlisted candidates met the essential criterion and two of the six did not meet the preferential criterion and none of them should have been shortlisted for interview;

(iii) all the classroom assistants who are working or have worked at the first respondent school are or have been women;

(iv) classroom assistants in Northern Ireland are almost exclusively women and in a lot of cases, these women are themselves ex special needs students who do not have the capacity to really assist the special needs pupils entrusted to them; and

(v) the shortlisting panel, and, in particular Mr McKee and Miss Early who were both teachers at the first respondent school at the relevant time, were influenced by and followed Mr Graham’s assessment of the candidates.

8.1 The tribunal was concerned that Mr Graham had provided his assessment or views of whether the candidates met the essential and preferential criteria to the shortlisting panel because:-

(i) it was not provided for by the second respondent in their letter to Mr Graham;

(ii) it was not provided for in the Staff Commission for Education and Library Board’s guidelines on shortlisting procedures; and

(iii) it could lead to governors, particularly teacher governors, being influenced, consciously or subconsciously by their school principal’s assessment or views.

The tribunal was also concerned that the members of the shortlisting panel had not filled in their individual assessment schedules before discussing whether individual candidates met the shortlisting criteria. However, notwithstanding those concerns, the tribunal accepted the evidence of Mrs Greer, Mr McKee and Miss Early that they assessed the candidates solely on the information supplied by the candidates on their application forms and without regard to Mr Graham’s assessments or views. That is because the tribunal is satisfied that their evidence was mutually consistent and was supported by Ms Lowry’s handwritten entries on one of the assessment schedules, which showed that:-

(i) although the shortlisting panel reached the same assessments as Mr Graham in respect of the essential criterion, in relation to thirteen of the fourteen candidates, they reached a different assessment in relation to the fourteenth candidate; and

(ii) unlike Mr Graham, who had assessed all the candidates against both criteria, the shortlisting panel only assessed candidates against the preferential criterion if they were satisfied that they met the essential criterion.

The tribunal is not therefore satisfied that the shortlisting panel members, or Mr McKee and Miss Early, in particular, were influenced by or followed Mr Graham’s assessments of the candidates, as claimed by the claimant.

8.2 Although there was no dispute that classroom assistants in Northern Ireland are almost exclusively women or that all the classroom assistants at the first respondent school are or have been women, the tribunal is not satisfied that the claimant’s allegation, that in a lot of cases these women are themselves ex special needs students who lack the capacity to really assist the special needs pupils entrusted to them, was substantiated. The tribunal agreed with Mr Colmer’s submission that this unsubstantiated allegation amounted to a most insulting attempt to belittle the status and work of classroom assistants in Northern Ireland, who are almost exclusively women.

The claimant’s application form

8.3 Although the shortlisting panel did not consider whether the information supplied by the claimant on his application form demonstrated that he met the preferential criterion because they were not satisfied that he met the essential criterion, there was no dispute at the Hearing that the claimant did meet the preferential criterion. There was also no dispute that the information supplied by the claimant on his application form demonstrated that he had relevant experience of working with children with special educational needs. The dispute was whether the information supplied by the claimant on his application form demonstrated that his experience amounted to a minimum of one year.

8.4 The claimant was given the opportunity by the tribunal but was unable to point to any information which he had supplied on his application form which quantified the length of his experience working with children with special educational needs. However the claimant contended that the shortlisting panel members should have been able, because of their backgrounds in education, to infer from the information on his application form, that he had worked with children with special educational needs for a minimum of one year.

8.5 The respondents contended that it was not possible for the shortlisting panel to quantify the length of the claimant’s experience or to determine that it met the one year requirement from the information supplied by the claimant on his application form.

8.6 The tribunal is satisfied that although:-

(i) it was clearly stated on the job advertisement and the job description that the essential criterion required candidates to have a minimum of one year’s experience working with a child/children with special educational needs;

(ii) it was clearly stated on all application forms that “only those applications which, from the information supplied on this form, appear to meet the advertised criteria will be considered”;

(iii) it was clearly stated on the second respondent’s letter which was issued to all potential candidates with the application packs that it was their individual responsibility to ensure that “all necessary relevant information was included in your application to enable the board to assess eligibility for consideration for appointment”;

(iv) the claimant quantified the length of time he had taught regularly as a teacher on his application form as well as specifying the actual dates he had taught business and maths at key stages 3 and 4;

(v) the claimant quantified the length of time he had taught as a supply teacher on his application form as well as specifying the actual dates;

(vi) the claimant quantified the number of years he had tutored individuals on his application form;

the claimant did not quantify the length of time he had spent working with children with special educational needs during those periods. Instead the claimant stated that:-

(a) he had done a “considerable amount of work” with special needs classes and disadvantaged during his four years as a business and then maths teacher and during the several years he taught as a supply teacher and, by way of example, he stated that he had taught Downs Syndromes Groups on “several occasions”;

(b) the individuals he tutored over the past 15 years included two statemented special needs students in numeracy and literacy.

8.7 Having had the opportunity to consider the claimant’s evidence, the evidence of Mrs Greer and Mr McKee (Miss Early had no recollection of the actual assessments given the 7½ years time lapse) together with the claimant’s application form, the tribunal accepted the evidence of Mrs Greer and Mr McKee that the information supplied by the claimant on his application form in relation to the length of his experience was ambiguous and that it was not possible for the shortlisting panel to quantify the length of it or to determine that it amounted to a minimum of one year. The tribunal is therefore satisfied that although it was made clear to the claimant what the essential criterion was and that it was his responsibility to provide the necessary information to demonstrate that he met it, the claimant failed to supply clear information from which the shortlisting panel could determine that he had met the essential criterion and that is why he was not shortlisted. The tribunal is further satisfied that although the claimant did meet the preferential criterion, as the shortlisting panel had decided that the information supplied by him on his application form did not demonstrate that he met the essential criterion, it did not go on to consider whether he met the preferential criterion.

The six shortlisted female candidates

Candidate D

8.8 Candidate D stated on her application form that she had worked as a special needs classroom assistant with a child with autism from 22 August 2003 to 1 March 2005 in a post primary school. The claimant is satisfied that that information demonstrated that candidate D met the essential criterion.

Candidate D also stated on her application form that she had obtained a teacher certificate in literacy/numeracy for adults with special needs in 2001. There was a dispute between the claimant and Mrs Greer and Mr McKee as to whether this was one of the qualifications listed in JNC Circular No 34. The claimant claimed that it was not and that candidate D did not therefore meet the preferential criterion and should not therefore have been shortlisted. Mrs Greer and Mr McKee both gave evidence that this qualification did come within the teaching qualification listed in the Circular. The tribunal was unable to determine, on the evidence before it, whether candidate D’s qualification did come within the teaching qualification listed in the Circular. However, having had the opportunity to listen to and to observe Mrs Greer and Mr McKee giving their evidence, the tribunal was satisfied that whether or not the teaching qualification listed in JNC Circular No 34 included candidate D’s teaching certificate, the shortlisting panel genuinely believed that it did at the time of the shortlisting and that they still genuinely believed it at this Hearing. The tribunal therefore concludes that whether or not candidate D met the preferential criterion, as well as the essential criterion, the reason she was shortlisted was because the shortlisting panel genuinely believed, correctly or incorrectly, that she did.

Candidate E

8.9 Candidate E stated on her application form under the heading “previous employment details” that although she had been employed as a teacher from September 1996 to April 1998 she worked most of that time as a classroom support assistant. Under the heading “experience and training” candidate E clarified that she had worked as a classroom assistant between October 1996 and April 1998. Candidate E also stated that during that time she:-

(i) mainly provided in-class support, either to individuals or to small groups;

(ii) she also worked with students who had been withdrawn for extra English lessons;

(iii) worked with one student who had problems with concentration;

(iv) worked with a student who had low academic attainment;

(v) worked with a small group of other students who were having difficulties in the class.

The tribunal is satisfied that that information demonstrated that candidate E met the essential criterion.

Candidate E stated on her application form that she had obtained a Post Graduate Certificate in Education (PGCE). Although there was no reference to a PGCE in JNC Circular No 34 by name, the claimant did not dispute the respondents’ evidence that this was a teaching qualification within JNC Circular No 34. The tribunal is therefore satisfied that Candidate E met the preferential criterion. The tribunal therefore concludes that the reason candidate E was shortlisted was because the shortlisting panel was satisfied from the information on her application form that she met the essential and preferential criteria.

Candidate F

8.10 Candidate F stated on her application form that she had worked as a classroom assistant with a pupil with special educational needs at a post primary school from September 2003 to June 2004. She also gave details of the work she did with the pupil on her application form. The claimant contended that while Candidate F may have had relevant experience it did not amount to the minimum of one year’s experience because she had only worked with the pupil between September 2003 and June 2004.

The tribunal accepted the evidence of Mr Graham, Mrs Greer and Mr McKee that the reference to one year’s experience in the essential criterion was a reference to a school teaching year which runs from September to June, as pupils are not in school during July and August. The tribunal is therefore satisfied that candidate F did meet the essential criterion.

Candidate F stated on her application form that she had obtained a PGCE in 2005 and the tribunal is therefore satisfied that she met the preferential criterion as well.

The tribunal therefore concludes that the reason candidate F was shortlisted was because the shortlisting panel was satisfied from the information on her application form that she met the essential and preferential criteria.

Candidate I

8.11 Candidate I stated on her application form that she was appointed as a classroom assistant in a primary school in September 2004. It is clear from her application form that she was still working in that post at the time of submitting her application form at the end of June 2005.

Candidate I also stated on her application form that during that period, which the tribunal is satisfied amounted to a school teaching year, she worked with a child with special needs, that she had helped different groups of children with literacy and maths and that she had worked with individual children as required by the teacher.

The tribunal is satisfied that that information demonstrated that Candidate I met the essential criterion.

Candidate I stated on her application form that she had a Higher National Certificate and a HND top up in early childhood studies. The tribunal is satisfied that that is a relevant qualification within JNC Circular No 34 and that she therefore met the preferential criterion as well.

The tribunal therefore concludes that the reason candidate I was shortlisted was because the shortlisting panel was satisfied from the information on her application form that she met the essential and preferential criteria.

Candidate K

8.12 Candidate K stated on her application form that she had been appointed as a classroom assistant in a primary school in November 2003 and that she had been working with a child with special needs. The information she supplied on her application form indicated that she was still working in that position when she submitted her application form in June 2005. The tribunal is satisfied that that information demonstrated that she met the essential criterion.

Candidate K stated on her application form that she had an NVQ level 2 in “childcare key skills”. While the claimant disputed that that was the same qualification as an NVQ level 2 in “early years care and education” which was formerly known as “child care and education” which was listed on JNC Circular No 34, the tribunal accepted Mrs Greer’s evidence that the shortlisting panel considered them to be one and the same and that candidate K therefore had a relevant qualification.

The tribunal therefore concludes that the reason candidate K was shortlisted was because the shortlisting panel was satisfied from the information on her application form that she met the essential and preferential criteria.

Candidate N

8.13 Candidate N stated on her application form that she had worked as a special needs classroom assistant in a primary school from September 2001 to June 2003. She also gave details of the work she did and the tribunal is satisfied from that information that she met the essential criterion.

Candidate N stated on her application form that she had a CACHE Diploma in Childcare, a CACHE Advanced Diploma in Childcare and a BA (Hons) in early childhood studies which are relevant qualifications within JNC Circular No 34. The tribunal is therefore satisfied that candidate N met the preferential criterion as well as the essential criterion.

The tribunal therefore concludes that the reason candidate N was shortlisted was because the shortlisting panel was satisfied from the information on her application form that she met the essential and preferential criterion.

Factual Issues

9. In light of the tribunal’s findings, as set out above, the tribunal answers the factual issues as follows:-

1. Why was the claimant not shortlisted for interview?

The claimant was not shortlisted for interview because the shortlisting panel was not satisfied from the information supplied by him on his application form that he met the essential shortlisting criterion whereas the shortlisting panel was satisfied from the information supplied by the six female shortlisted candidates on their applications forms that they did meet the essential criterion. The shortlisting panel was also satisfied that those six female candidates met the preferential criterion which was only considered where candidates had met the essential criterion. .

2. Was the claimant not shortlisted because he was a man?

No, the claimant was not shortlisted for interview because the shortlisting panel was not satisfied from the information supplied by him on his application form that he met the essential shortlisting criterion whereas the shortlisting panel was satisfied from the information supplied by the six female shortlisted candidates on their applications forms that they did meet the essential criterion. The shortlisting panel was also satisfied that those six female candidates met the preferential criterion which was only considered where candidates had met the essential criterion.

3. Was the claimant not shortlisted for interview because the shortlisting panel took the view that he did not satisfy the shortlisting criteria?

Yes, the shortlisting panel was not satisfied that the information supplied by the claimant on his application form demonstrated that he met the essential shortlisting criterion.

4. Did the claimant satisfy the shortlisting criteria?

The shortlisting panel decided to apply the essential criterion and the preferential criterion as the shortlisting criteria. The shortlisting panel also decided that unless a candidate met the essential criterion, the candidate would not be shortlisted, without consideration of the preferential criterion. The tribunal is satisfied that although the claimant met the preferential criterion, he did not meet the essential criterion and was not therefore entitled to be shortlisted.

The Legal Issues

10. The legal issues for the tribunal to determine in relation to the claimant’s claim of direct discrimination are as follows:

(1) Was the claimant subjected to direct discrimination contrary to the Sex Discrimination (Northern Ireland) Order 1976? That is, in failing to shortlist the Claimant, did the Board of Governors non-teaching Appointments Committee treat the claimant, on the grounds of his sex, less favourably than it treated or would have treated a woman?

(2) For the purpose of the Sex Discrimination (Northern Ireland) Order 1976, did the respondent discriminate against the claimant by refusing or deliberately omitting to offer the claimant employment?

10.1 Although classroom assistants in Northern Ireland are almost exclusively female and although classroom assistants at the first respondent school are and have been exclusively female, the tribunal is satisfied that the reason the Board of Governors non-teaching Appointments Committee (the shortlisting panel) did not shortlist the claimant was because the information he supplied on his application form did not demonstrate to them that he met the essential shortlisting criterion. The tribunal is also satisfied that the reason the shortlisting panel shortlisted the six female candidates, who were shortlisted, was because the information supplied by them on their application forms demonstrated to the shortlisting panel that they met the essential shortlisting criterion and the preferential shortlisting criterion. The tribunal is further satisfied that even if candidate D’s qualification did not meet the preferential shortlisting criterion, the shortlisting panel genuinely believed that it did. The tribunal is not therefore satisfied that the Board of Governors non-teaching Appointments Committee treated the claimant, on the grounds of his sex, less favourably than it treated or would have treated a woman in failing to shortlist him or to offer him the post of special needs classroom assistant at the first respondent school.

Candidates C, J and L

11. However, that is not the end of the matter because the claimant also appeared to be claiming that he was treated less favourably than candidates C, J and L who were not shortlisted. That is because although they were not shortlisted, because they did not meet the preferential criterion, they were assessed as having met the essential criterion which the claimant alleged they did not. The claimant appeared to be claiming that if he had been treated in the same way as those three candidates and had been assessed as having met the essential criterion, even though he did not, he would have been shortlisted because, unlike them, he did meet the preferential criterion.

11.1 The tribunal therefore considered the application forms of candidates C, J and L and, having done so, the tribunal is satisfied that the information supplied by candidates C and L on their application forms did demonstrate that they met the essential criterion for the following reasons:-

(i) Candidate C stated on her application form that she was appointed as a classroom assistant in a primary school in September 2004 and that she was currently contracted up to the end of the school year which the tribunal is satisfied amounted to one year. She also gave details of the work she had carried out throughout the year with children with special educational needs.

(ii) Candidate L stated on her application form that she had been a laboratory/science technician in a post primary school for over 28 years and that “in recent years with less teachers to support, my time, when not preparing practicals, has been in the classroom assisting the teaching staff. This has proved to be helpful particularly with the lower ability classes”.

The tribunal is not therefore satisfied that the claimant has established that he was treated less favourably than candidates C and L in relation to the assessment of the essential criterion.

11.2 In relation to candidate J, the tribunal agrees with the claimant that she did not meet the essential criterion. That is because, although the information supplied by candidate J on her application form demonstrated that she did have relevant experience working with children with special needs, it did not demonstrate that she had a minimum of one year’s experience doing so. However, the tribunal does not agree with the claimant that, if like candidate J, he had been (incorrectly) assessed as having met the essential criterion, he would have been shortlisted because he met the preferential criterion whereas candidate J did not. Although the shortlisting panel unanimously decided that candidate J did not meet the preferential criterion, the tribunal is satisfied that she did. That is because she stated on her application form that she had a GNVQ in Advanced Health and Social Care which is a relevant qualification within JNC Circular No 34. The tribunal is not therefore satisfied that the claimant was treated less favourably treated than candidate J by not being shortlisted, as candidate J was not shortlisted either, even though, like the claimant, she met the preferential criterion.

The claimant’s claim of Indirect discrimination

12.1 As set out above, two criteria were applied at the shortlisting stage. They were:-

(1) a minimum of one year’s experience working with a child/children with special educational needs; and

(2) a relevant qualification as set out in JNC Circular No 34.

12.2 Although the shortlisting panel was not satisfied from the information supplied by the claimant on his application form that he met the essential criterion, the claimant’s case was that he did meet both criteria. The claimant contended that:-

(i) the application of those criteria amounted to indirect sex discrimination within the definition set out at Article 2(2) of Directive 2002/73/EC which states:-

“indirect discrimination: where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.”

(ii) the requirement under Article 3(2)(b) of the Sex Discrimination (Northern Ireland) Order 1976, as it applied at the time of his claim (see paragraph 3.2 above), that to establish indirect discrimination he had to show that the criteria operated to his detriment, as well as showing that the criteria would operate to the detriment of a considerably larger proportion of men than women, was contrary to European Law and Directive 2002/73/EC, in particular, and was not therefore required to establish indirect sex discrimination.

12.3 The tribunal is bound by the judgment of the Northern Ireland Court of Appeal in James Robert Peifer –v- Castlederg High School, Limavady High School, St Patrick’s and St Brigid’s High School Claudy and Western Education and Library Board in which the Northern Ireland Court of Appeal (the Lord Chief Justice giving the judgment of the Court) held that it is clear from the definition of indirect discrimination in Article 3(2)(b) of the Sex Discrimination (Northern Ireland) Order 1976, as set out at paragraph 3.2 above, that the application of a provision, criterion or practice must cause a detriment to the claimant (paragraph 18 of the judgment). In that case, the Northern Ireland Court of Appeal therefore rejected the claimant’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 or would put him at a disadvantage since his case is that he satisfies each criterion” (paragraph 23 of the judgment).

12.4 In light of the fact that the claimant was not contending that the application of the shortlisting criteria was to his detriment, because he met both, and in light of the above judgment of the Northern Ireland Court of Appeal, the tribunal is not
satisfied that the claimant can maintain his claim of indirect sex discrimination which is therefore dismissed.

President:

Date and place of hearing: 3-7 December 2012, Belfast

Date decision recorded in register and issued to parties:

The tribunal’s rulings on the applications made by the claimant in letters dated 11 October 2012, 26 October 2012 and 2 November 2012.

The claimant’s letter of 11 October 2012 to the respondents’ solicitor

1. This letter contained 18 paragraphs. The tribunal ordered the respondent to provide the information sought by the claimant in relation to the first respondent at paragraph 6 because it was satisfied that it was relevant and necessary for the fair disposal of the case.

2. The tribunal ruled that in so far as the information or confirmation sought by the claimant at paragraph 2 was relevant, it could be dealt with in cross-examination.

3. The tribunal refused to make Orders in relation to the remainder of the claimant’s requests for discovery or information for the following reasons:-

(i) the tribunal was satisfied that the information/documentation sought by the claimant at paragraphs 1 and 12 had already been provided to him in relation to the first respondent;

(ii) the tribunal was not satisfied that the documents sought at paragraphs 3 and 4 existed or that the respondents were obliged to compile or create such documents;

(iii) the tribunal was not satisfied that the information/documents sought at paragraphs 5, 7-11, 14, 17 and 18b were relevant to the issues the tribunal had to determine;

(iv) the tribunal was satisfied that the respondents could not locate the documents sought at paragraph 13;

(v) the tribunal was satisfied that if the documents sought at paragraph 15 ever existed they no longer existed;

(vi) the tribunal was not satisfied that the claimant was entitled to the information sought at paragraph 16 namely the names, addresses, telephone numbers, dates of birth and national insurance numbers of the other candidates or the names and addresses of their referees, which had been redacted from the application forms provided to the claimant on discovery. The other information which had initially been redacted had subsequently been provided;

(vii) the tribunal was satisfied that the shortlist assessment forms sought by the claimant at paragraph 18a. had been destroyed and that the summary shortlist assessment form which had also been sought at paragraph 18a. and which had been completed by Ms Lowry, had been provided;

(viii) the tribunal was satisfied that in relation to paragraph 18c. all notes which had been taken at the shortlisting stage had been provided and any notes taken at the interview stage were not relevant.

The claimant’s letter of 26 October 2012 to the Office of the Industrial Tribunals

1. This letter contained five paragraphs. The first two paragraphs asked the Chairman to confirm that the Inter-Board JNC and the Department of Education would be considered for a joinder as alleged perpetrators of discrimination in all of his cases. The tribunal was not satisfied that the claimant had established that either party should be joined to these proceedings in light of the issues the tribunal were determining and refused to join either body to these proceedings.

2. The third paragraph sought an explanation from the Vice President in relation to the Case Management Discussion which took place on 4 October 2012 which this tribunal could not provide.

3. The fourth paragraph contained a question about which version of the Sex Discrimination (Northern Ireland) Order 1976 was being referred to in the statement of issues. The tribunal ruled that the claimant could address this matter in his closing submissions.

4. At paragraph 5 the claimant asked if the Chairman could confirm that the Equal Treatment Directive 2002/73/EC (recast as Directive 2006/54/EC) would be given full direct effect against the respondents; as statutory emanations of the state. The tribunal ruled that this matter could also be addressed by the claimant in his closing submissions.

The claimant’s letter of 2 November 2012 to the Office of the Industrial Tribunals

1. This letter contained five paragraphs. The subject matter of the letter was a request for a tribunal Discovery Order, a request for a Case Management Discussion, a request for Witness Statements, a request for Further Particulars of Discovery and confirmation from him that his Supreme Court application was being prepared. The tribunal considered that the claimant was essentially seeking a further Case Management Discussion to have his request for Discovery, as set out in his letter of 11 October 2012 and his application for witness statements (which had not been ordered at the Case Management Discussion on 4 October 2012) determined. The tribunal’s rulings in relation to the claimant’s letter of 11 October 2012 are set out above. As the other main request was for a Case Management Discussion to be arranged to consider certain matters, that was no longer appropriate as the substantive hearing had commenced.

The claimant’s letter of 2 November 2012 to the respondents’ solicitor

1. This letter contained a further 19 paragraphs as a follow up to the 18 paragraphs contained in the claimant’s letter of 11 October 2012.

2. The tribunal refused to make Orders in relation to any of the paragraphs for the following reasons:-

(i) the tribunal was satisfied that the respondents’ representative had already provided answers in relation to paragraphs 19-20, the first and second parts of paragraphs 21, paragraphs 22-26, 29, 30 and 33;

(ii) the tribunal was satisfied that the information sought at paragraphs 31 and 32 had already been dealt with under paragraph 6 of the claimant’s letter of 11 October 2012 to the respondents’ representative and in respect of which the tribunal had already made an Order.

(iii) the tribunal was not satisfied that the information/documentation sought at the third and fourth parts of paragraph 21, paragraphs 27, 28 and 34 was relevant to the issues to be determined by the tribunal in this case;

(iv) the tribunal was satisfied that paragraph 35 contained a hypothetical question which it did not order the respondents to answer;

(v) the tribunal was satisfied that, in relation to paragraph 36, the original report of the Board of Governors to the second respondent, in relation to the shortlisting and interview meetings, could not be located; and

(vi) the tribunal was satisfied that the faxes sought at paragraph 37 had been sent seven and a half years earlier and new complete copies could not therefore be provided. In those circumstances the tribunal made no Order.

The claimant’s applications for the Hearing to be extended into a sixth day i.e. Monday 10 December 2012 for closing submissions

1. As set out at paragraph 5 of the decision, in light of the guidance given by the Northern Ireland Court of Appeal in the Veitch case, the President gave the parties the opportunity to agree a timetable for evidence and submissions at the outset of the first Hearing day, to ensure that the case would be completed within the five days allocated to it, namely between 3 and 7 December 2012. The parties were unable to agree a timetable. The President therefore set a timetable with the parties so that the evidence would be completed on Thursday 6 December 2012 and so that the closing submissions of the parties would be made on Friday 7 December 2012.

2. In light of the applications which the claimant raised during the Hearing and which the tribunal considered and determined, it became clear that the evidence would not be completed on Thursday 6 December 2012. The President therefore directed, at the end of the Hearing on Thursday 6 December 2012, that the evidence would be completed on the morning of Friday 7 December 2012 and that the parties would make their closing submissions during the afternoon of Friday 7 December 2012. At that stage the claimant made an application that the Closing submissions be made on Monday 10 December 2012 because of his age and the time he had spent travelling to and from the tribunal each day. The President refused the claimant’s application because the closing submissions had been timetabled for Friday 7 December 2012, at the outset of the Hearing on Monday 3 December 2012 and because no application had been made at that stage for additional time to be allowed for the submissions.

3. The evidence was completed at approximately 2.30 pm on Friday 7 December 2012. Before commencing his closing submissions, the claimant made a further application for the closing submissions to be heard on Monday 10 December 2012 because he had spent a total of five hours travelling to and from the tribunal each day and therefore had extremely limited time to prepare his closing submissions.

4. Mr Colmer indicated that he was opposing the application in the strongest possible terms for the following reasons:-

(i) the President had directed at the outset of the Hearing that the Hearing would be completed within the five days allocated to it;

(ii) the President had recently confirmed that to the parties;

(iii) everyone has lives beyond the tribunal and everyone has to cope as best as possible within the constraints of their working life and their life beyond the tribunal; and

(iv) there is no reason why submissions cannot be dealt with succinctly during the afternoon of Friday 7 December 2012.

5. The claimant indicated that he would like to respond to Mr Colmer’s objection and he was given the opportunity to do so. The claimant made the following additional points in support of his application to extend the Hearing into the following week to make closing submissions:-

(i) this case was scheduled for Hearing along with four of his other cases and his next five cases were due to be listed at a Case Management Discussion on Monday 10 December 2012;

(ii) the listing of his cases is already before the Supreme Court and has been appealed to the Court of Appeal as well;

(iii) he received a lot of information from the respondents for the first time this week;

(iv) he did not have time to finish an index for his bundle;

(v) he had to get up each morning at 5.30 to travel 90 miles to and from the tribunal by bus and he did not return home each day until 7.30pm and therefore had very little time to organise anything;

(vi) Lord Justice Girvan had stated (in the Veitch case) that:-

“If a party complains that in the course of case management the tribunal has unfairly conducted the hearing or has interfered with the party’s fair trial rights that will raise an issue of law which should be appealed in the appeal process ….”

so if he is not now given sufficient time to really prepare a summation he will appeal the tribunal’s ruling.

6. The tribunal rose and considered the claimant’s application and Mr Colmer’s objections very carefully, taking into account that in considering the claimant’s application it must act in accordance with the overriding objective which required it to do justice between the parties.

The tribunal then returned to the tribunal room and having confirmed that it considered the application and objections very carefully having regard to the overriding objective and the requirement to do justice between the parties, the President informed the parties that the tribunal had unanimously decided to refuse the claimant’s application for the closing submissions to be heard on the Monday of the following week having taken into account the following matters:-

(i) the claimant’s case was lodged with the tribunal in August 2005;

(ii) the Hearing was fixed for five days in October 2012;

(iii) the parties had been aware of the Hearing dates since that time;

(iv) the parties should reasonably have been aware that the whole case was to be completed in the five days allocated to it;

(v) the parties had been made aware of this on the morning of Monday 3 December 2012 and that there was no objection from any party to the President’s direction that the closing submissions would be dealt with on Friday 7 December 2012;

(vi) that direction was repeated by the President on Thursday 6 December 2012;

(vii) the only new documents that the claimant received during the Hearing, of which the tribunal was aware, were the Code of Procedures on Recruitment and Selection and the Guidelines for Panel Members Selection; and

(viii) the claimant’s indication during the Hearing that for the past 7½ years he has been working on these cases 24/7.

Having balanced all those matters, the tribunal unanimously decided to refuse the claimant’s application and to proceed with the submissions on the afternoon of Friday 7 December 2012.