Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Peifer v St Colmcille's High School South Eastern Education and Li... [2013] NIIT 01510_05IT (25 June 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/1510_05IT.html
Cite as: [2013] NIIT 01510_05IT, [2013] NIIT 1510_5IT
[New search] [Printable RTF version] [Help]
THE INDUSTRIAL TRIBUNALS
CASE REF: 1510/05
CLAIMANT: James Robert Peifer
RESPONDENTS: 1. St Colmcille's High School
2. South Eastern Education and Library Board
DECISION
The unanimous decision of the tribunal is that the claimant was not discriminated against, either directly or indirectly by the respondents pursuant to the Sex Discrimination (Northern Ireland) Order 1976 and his claims of discrimination are dismissed.
Constitution of Tribunal:
Chairman: Miss E McCaffrey
Members: Mr P Killen
Mr H Fox
Appearances:
The claimant appeared in person and was not represented.
The respondents were represented by Ms A Finnegan, Barrister-at-Law, instructed by the Education and Library Boards Legal Service.
BACKGROUND AND PRELIMINARY MATTERS
1.1 This was a claim of unlawful
discrimination on grounds of sex pursuant to the Sex Discrimination
(Northern Ireland) Order 1976 (“the 1976 Order”) in relation to the
claimant’s failure to be appointed to the post of Classroom Assistant at the
first-named respondent’s school (“St Colmcille's”)
in Summer of 2005. It is one of the number of claims which the claimant
brought in relation to several recruitment processes in or around the same
time. This claim was lodged at the Office of the Industrial Tribunals on
18 August 2005 and the first Case Management Discussion in relation
to this matter was conducted on 20 June 2006. More recently, a Case
Management Discussion was held on 10 December 2012. In the course of
that Case Management Discussion, the Vice-President directed that the
respondents should complete or repeat their interlocutory discovery process by
giving the claimant all relevant documentation in relation to the
decision-making process of the interview panel. The claimant argued at that
stage that the matter should not be listed until “July”. The Vice-President
notes in the Record of Proceedings that he stressed that it was important that
this matter should be determined as soon as possible while memories were still
relatively fresh, and given that the matter was of some seven years vintage.
It was directed at that stage that the case would be listed for hearing from 28
to 31 May 2013. At that stage it was noted that it was impossible to
list the matter any sooner, given other matters involving the claimant
currently listed for hearing.
1.2 Between the Case Management Discussion and the date of hearing the claimant made an application for further discovery and for witness orders in relation to two witnesses. One was John Curran who was secretary to the body which set terms and conditions of employment for classroom assistants. The other was someone who the claimant said worked in Human Resources. He was unclear how either of those witnesses was relevant to the issues in this case. These applications were made approximately 10 days before the date fixed for hearing and had been refused by the Vice-President.
1.3 At the outset of the hearing the claimant made a number of applications:-
(i) Application for Adjournment
1.4 Before the commencement of the case the claimant handed in a letter dated 28 May 2013, requesting the postponement of the hearing. This letter was typewritten and had attached to it a calendar setting out the claimant’s various court commitments before the tribunal and the Court of Appeal.
He maintained that he had not had proper time to prepare his case given the number of hearings which were ongoing, the number of appeals which he wished to lodge and the fact that he had an application listed for hearing in the Court of Appeal originally scheduled for 24 May and which had been rescheduled for 7 June 2013.
1.5 The claimant maintained that the schedule for the final hearing had been unfair by not allowing him fair time in which to prepare and present his documents for the final hearing. It was pointed out to the claimant that he had been on notice of this hearing since December 2012 and that he had had ample time to make preparation. The tribunal also noted on examination of the claimant’s calendar that his previous hearing concluded on 18 April and therefore that he had five clear weeks before this hearing to prepare for it. The respondent’s representative objected strenuously to the request for postponement, pointing out the time which had already elapsed in relation to the matter. She noted that one of the first-named respondent’s witnesses, Mrs McGreevy the School Principal, had suffered the loss of her mother over the bank holiday weekend and her funeral was in fact taking place that morning. Miss Finnegan for the respondents indicated that she was not seeking an adjournment on this basis and that she was prepared to go ahead without Mrs McGreevy’s evidence at this stage, but may review the position later in the hearing. The claimant promptly suggested that this was good grounds for a postponement, but he was reminded that the respondent was not seeking a postponement and indeed was keen for the matter to proceed. Given the overriding objective set out in Regulation 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 2005, we are of the view that it would not be in the interests of justice to grant an adjournment. The overriding objective to deal with cases justly includes ensuring that the parties are on equal footing, dealing with the matter in a manner proportionate to its complexity, ensuring it is dealt with expeditiously and fairly and saving expense. This case is now almost eight years old, the application to adjourn has come on the morning of the hearing and the claimant is not proposing an alternative date for hearing. The views of the respondent as well as the claimant have to be taken into account, as does the ruling of the Northern Ireland Court of Appeal in Peifer v Castlederg High School, Coleraine High School, St Patricks and St Brigid’s College Claudy, and Western Education and Library Board [2012] NICA 21. Accordingly the application is refused.
(ii) Request for Witness Summons
1.6 The claimant renewed his application for witnesses to be called. First of all, he has failed to demonstrate that these witnesses are in any way relevant for the determination of the issues in this case, which relates to a recruitment exercise in relation to the post of a Classroom Assistant at St Colmcille's in June 2005. Secondly, his application for a witness order has already been refused by the Vice-President. We see no grounds adduced by the claimant which leads us to think that that decision was not correct and accordingly his application is refused.
(iii) Application for Discovery of Documents
1.7 The respondent noted that much of the documentation provided to the claimant had already been provided in 2005. In the course of the hearing it was also noted that the claimant was complaining about not receiving documents with which he had in fact already been provided. The claimant was unable to demonstrate to us that he had not received documents which were relevant to the determination of the issues in this case, and accordingly his application for further discovery was denied. It was also noted that this application had been made before the Vice-President some ten days before the hearing and similarly had been refused. We pointed out to the claimant that he had had ample time during the previous 7½ years to seek all relevant documents and that if he had not done so by the date of the hearing, it was too late to apply on the morning of the hearing.
(iv) Application to join the Department of Education
1.8 The claimant alleged that the practices and procedures he was complaining about had been put in place by the Department of Education and that it should properly be a party to the claim. It was pointed out to him that he had not included the Department as a respondent when he lodged his claim in the first instance nor had he applied previously to join the Department of Education. His application was well out of time and could not be considered at this time.
1.9 We considered that all of these applications were simply a matter of tactics on the part of the claimant. It is noted that the claimant had made similar applications, regarding discovery and witness orders at the Case Management Discussion in relation to this case. It appeared that the claimant made an application to adjourn, almost as a matter of course, at the start of other tribunal cases in which he had been involved. When he complained about the lack of time for preparing for cases and for the various appeals which he found it necessary to pursue, we took account of the fact that these matters are of long-standing, and it is therefore important to deal with the matters promptly. Secondly, the hearing of these cases had been timetabled specifically to allow the claimant appropriate time between each case to prepare and thirdly, he had not given any indication to the respondent in advance that he intended to make this application. This impression is confirmed by the fact that at various points during the hearing, even before the tribunal had stated its view on various matters raised by the claimant, he indicated that he would be including them in his appeal. It was also noted that the claimant was in a position to produce a thick booklet of documents, a typewritten letter regarding the adjournment request and typewritten submissions once the hearing had concluded. In our view therefore he was well prepared and he had had ample time to prepare for the case.
2. ISSUES
2.1 The issues in relation to this case have been identified at the Case Management Discussion on 10 December 2012. These were not agreed by the claimant, but the Vice-President dealing with the case adopted the respondent’s draft statement of issues which were as follows:-
(1) For the purposes of the Sex Discrimination (Northern Ireland) Order 1976, on the grounds of the claimant’s sex, did the respondent treat the claimant less favourable than it treated or would have treated a woman?
(2) For the purposes of the Sex Discrimination (Northern Ireland) Order 1976, did the respondent directly discriminate against the claimant by refusing or deliberately admitting to offer the claimant employment?
(3) 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?
Factual Issues
(1) Did the respondent, in the course of the interview process for the position of Classroom Assistant/Supervisory Assistant (Special Needs) subject the claimant to direct discrimination?
2.2 It was noted in the course of the Case Management Discussion that the claimant argued that this was a case of indirect or “institutionalised” sex discrimination. The record of proceedings states, “He [the claimant] stated initially in response to a direct question that “all criteria” adversely impacted on him. He almost immediately stated that he met the criteria”. The record of proceedings notes that it appeared to the Vice-President to be a case of an allegation of direct discrimination on ground of gender and on that basis he adopted the draft statement of issues set out above.
2.3 In the course of this hearing, the claimant made allegations of indirect “institutionalised” discrimination. For the reasons set out below we do not consider in light of the facts found that the issue of indirect discrimination was a real issue in relation to this case.
3. FACTS
3.1 We had the benefit of hearing evidence from the claimant, from Father Strain and Mrs Clarke, two members of the interview panel. We also had various documents opened to us, both by the respondents and by the claimant. In relation to the conduct of the hearing, we discussed with the parties at the outset of the hearing the timetabling of the matter. It was proposed to the claimant that he present his case during the first morning of the hearing, roughly from 10.30 am to 1.00 pm and that he would be cross-examined in the afternoon. There was no major objection from the claimant on this part in relation to this matter. Ms Finnegan for the respondents indicated that she believed that her witnesses should be able to give their evidence in chief within half an hour each and suggested three quarters of an hour for cross-examination of these witnesses. There was no major objection to this from the claimant at that point. He interjected that his first case had taken some 18 days and it was pointed out to him that this case was listed for 4 days and it should take only whatever time was necessary and appropriate.
3.2 The claimant commenced his evidence by a discursive and meandering introduction to documents which he said indicated “institutionalised” discrimination in relation to the matter of the appointment of Classroom Assistants and the qualifications for this post. He made the comment at various times that there seemed to be an emphasis on qualifications in relation to Early Years and that he believed that this was evidence of sex discrimination because, to quote him, “Men don’t want to take courses about feeding babies”. It was pointed out to him on a number of occasions that we needed to hear his evidence about the specific post at St. Colmcille’s. He was directed to focus on his application for that post and the selection interview process he had gone through. It was pointed out that it was for him to make the best use of the time available to him. Despite these reminders, and encouragement from the Chair, the claimant persisted in addressing issues which were not relevant to the particular competition. At various points during the morning, the Chairman reminded him of the time and pointed that it was for him to address the relevant issues.
3.3 It was common case that the vast majority of Classroom Assistants (98%) are female. The Joint Negotiating Council and the Department of Education jointly set out in Circular 34 the appropriate qualifications/recognised criteria for Classroom Assistants. These qualifications range from NVQ2 and Level 3 in relation to Early Years training to qualification as a teacher, registered nurse or a social worker. The claimant met this criteria as he is a qualified teacher.
3.4 At the end of May 2005, the post of Classroom Assistant/Supervisory Assistant (Special Needs) at St. Colmcilles was advertised. The advertisement read as follows:
“St. Colmcilles High School, Crossgar, 27.5 hpw, Classroom Assistant/5 hpw – Supervisory Assistant.
Classroom Assistant: incremental rate of pay: £7.7255-£9.2869 per hour (qualified); £7.199-£8.7399 per hour (recognised). Age 21+ -£8.0937 per hour (including special child allowance).
Supervisory Assistant: incremental rate of pay: £5.9973-£6.3873 per hour. A retaining fee is paid for Supervisory Assistant hours only during school holidays.
Applicants must have a full certificate approved for qualified or recognised status. Preference may be given to applicants who have a minimum of six months experience working with pupils/young children aged between 11-16 in a formal environment, ie, school. Experience of working with a child/children with EBD, in particular Autistic Spectrum Difficulties or ADHD would be an advantage. Criteria may be enhanced. Flexible working arrangements available during school holidays for Classroom Assistant hours only.”
3.5 For this post the school Principal prepared shortlisting template forms and the Board of Governors appointed a panel to deal with shortlisting and interview for this post. At the shortlisting meeting on 23 June 2005, those present were Father Byrne, Father Strain, Mrs Clarke and Mrs McGreevy, the school Principal, who had no vote. The panel decided that they would adopt two criteria for the post. First, the essential criteria was that the candidates must have qualified/recognised status and secondly they must have six months minimum experience of working with 11-16 olds in a formal setting, i.e., school. This was a desirable criterion rather than an essential criterion. Following their consideration of the application forms, there were five out of the twelve candidates who were shortlisted for interview. These included the claimant who was identified as applicant “K”, the successful applicant, candidate “A” and candidates E, G and H. Of these, only four attended for interview as candidate “E” did not attend. Following interview, Candidate A was the successful candidate and the claimant was ranked fourth out of those interviewed.
3.6 The claimant endeavoured to raise issues in relation to both candidate “E” and candidate “I” who was not shortlisted. His argument about candidate “E” was that she should not have been shortlisted as in his view she had not met the essential criterion. He raised an issue about candidate “I”, who had been temporarily employed at St. Colmcilles and was subsequently employed at the school, inviting us to infer that there was something ontoward about her recruitment. We had no evidence adduced to us in relation to this matter and so we consider that any reference to candidate “I” is irrelevant to this process. Equally, since the claimant clearly met the criterion for shortlisting and was interviewed for the post, while candidate “E” was not interviewed, we consider that any reference to her in this process is a distraction from the real issues.
3.7 The claimant also tried to make an issue of the shortlisting forms completed by the various panel members. Father Strain’s evidence was that he had made notes of whether the candidate complied with the essential criteria of having qualified/recognised status and the desirable criteria of six month’s experience working with 11-16 year olds. He had also noted on his form whether candidates complied with the third possible shortlisting criteria, i.e., experience of working with children with EBD/Autistic Spectrum Difficulties/ADHD. His evidence, which we accept, was that he did this while going through the forms to save time at a later stage, in case that third shortlisting criteria had to be applied. His evidence was, however, that only the first two criteria were applied, and we accept this.
3.8 At shortlisting stage, it was noted that the Southern Education and Library Board had already verified that all candidates had the appropriate “paper” qualification for the post and that they had either qualified or recognised status. The shortlisting panel then had the task of checking which candidate should be shortlisted and in particular how they met the desirable criteria of having at least six months’ experience of working with the 11-16 year old age group in a formal setting, ie, school. The claimant raised the issue that the successful candidate did not actually have the relevant experience. Mrs Clarke clarified that on the basis of the application form, it appeared that candidate “A” was a qualified teacher who had four months’ experience teaching in a school and then had had her teacher training during which she had been involved in special needs teaching. At interview stage the panel had received one reference for candidate “A” which was from her university tutor. That reference was very positive in its terms. Following the interviews , candidate “A’s” second reference was received on 8th July 2005. It is not clear from the paperwork if this was received directly by St Colmcille’s or received at the South Eastern Education and Library Board. This reference made it clear that candidate “A” had been employed as a teacher from September 2004 to December 2004, but had been absent for the second two months of that period due to illness. This may potentially have had a impact on candidate “A’s” length of experience working with teenagers in a formal school setting. However, Father Strain and Mrs Clarke both gave evidence that they had not seen this reference after the interview and it does not appear to have been drawn to their attention at any stage. The issue to be considered is whether the reason for this second reference not being drawn to the interview panel’s attention was in any way related to sex discrimination.
3.9 At interview, it was confirmed that all applicants were asked the same questions and were given the same amount of time at interview. The claimant was taken through the questions asked to each candidate and his comment about the questions was that they were “reasonable”. He made a comment that question 3 (which related to experience and knowledge) was not obviously discriminatory. However, he alleged that a workforce (Classroom Assistants) which had over 99% females would indicate that it would be principally women who would have this experience of working with children. His final comment on the questions was, “It is the secret criteria beyond this which are imposed. These questions are about as reasonable as I have seen”. He gave no evidence as to what the “secret criteria” might be.
3.10 The claimant did not adduce any evidence in relation to the marks he had been given compared to the marks given to any of the other candidates at interview. He did question Mrs Clarke about the marks she had given to the various candidates and the comments she had made on her marking sheet. He asked her to comment on the comments she had made in relation to his interview as compared to the successful candidate’s interview and she agreed that there were similarities in relation to some of the comments. She remarked that her notes were an overall summary and she noted key words. She also pointed out that it was hard to remember her exact mind set eight years later, and we accept that this was a genuine response. It was put to Mrs Clarke that the claimant had suggested that she had downgraded his teaching experience. Her reply was, “No, absolutely not”. She went on to clarify that she felt that the claimant had answered questions more from the point of view of the teacher than from the perspective of a classroom assistant. She also pointed out that the successful candidate had been a teacher so that she was not in any way degrading teaching experience. She also denied, as did Father Strain, that they had been motivated in any way by gender in their selection of the successful candidate.
3.11 The claimant did not adduce any evidence to show that he was a superior candidate to candidate “A”. He did not either adduce any evidence in relation to candidates “G” and “H” to show that he was in any way superior to them and their performance at interview was not drawn to our attention either by the claimant or by the respondent. There is no evidence before us to challenge the assessment made by the interview panel, that candidates “A”, “G” and “H” all performed better at interview than the claimant.
4. The RELEVANT LAW
4.1 The claimant’s application to the Industrial Tribunal was lodged on 18 August 2005 and relates to allegations of discrimination which occurred in June/July 2005. At the time that these complaints were presented, the relevant legislation was contained in the following Articles of the Sex Discrimination (NI) Order 1976 Order (as amended).
“Article 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 was unlawful by virtue of Part III … may be presented to an Industrial Tribunal.
4.2 Part III of the 1976 Order deals with discrimination in relation to employment. The definition of discrimination in employment at that time was contained in Article 3 of the 1976 Order which provides as follows:-
“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 grounds 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 or 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 …”
4.3 It is clear from the definition that for indirect discrimination to be proven under Article 3(2)(b), then the application of the provision, criterion or practice (PCP) complained of must cause a “detriment” to the claimant.
4.4 Article 4 of the 1976 Order, as amended, makes it clear that the provisions relating to sex discrimination against women are to be read as applying equally to the treatment of men. Article 7 equally makes it clear that the comparison of the cases of different sexes under Article 3 must be such that the relevant circumstances in one case are the same or not materially different in the other.
4.5 By the Employment Equality (Sex Discrimination) Regulations (Northern Ireland) 2005 (which came into operation on 5 October 2005 and therefore after the act of discrimination complained of in this case) Article 3(2) of the 1976 Order was further amended so that sub-paragraph (b) (the definition of indirect sex discrimination) provided:-
“(b) He applies to her a provision, criterion or practice which he applies or would apply equally to a man, but
(i) which puts or would put women at a particular disadvantage when compared with men
(ii) which puts her at that disadvantage, and
(iii) which he cannot show to be a proportionate means of achieving legitimate aim.”
4.6 The 1976 Order was further amended by the Sex Discrimination Order 1976 (Amendment) Regulations (Northern Ireland) 2011 which came into operation on 31 March 2011 and which provided that in Article 3(2)(d)(ii) of the 1976 Order the words “or would put” were to be inserted after the word “puts”.
4.7 In relation to discrimination in employment, the relevant provision is Article 8 of the 1976 Order as amended. This provides as follows:
“(1) It is unlawful for a person, in relation to employment by him at an establishment in Northern Ireland, to discriminate against a woman –
(a) in the arrangements he makes for the purpose of determining who should be offered that employment, or
(b) in the terms in which he offers her that employment, or
(c) by refusing or deliberately omitting to offer her that employment.
(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland, to discriminate against her -
(a) in the way he affords her access to opportunities for promotion, transfer or training or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or
(b) by dismissing her, or subjecting her to any other detriment.”
BURDEN OF PROOF
4.8 Article 63A of the 1976 Order (as amended) provides:-
“(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.”
4.9 The “burden of proof” in discrimination cases has attracted considerable judicial comment. The guidance in Igen Limited v Wong [2005] EWCA Civ 142 has been endorsed in a number of cases including by the Northern Ireland Court of Appeal in the case of Arthur v Northern Ireland Housing Executive and SHL UK Limited [2007] NICA 25. The claimant must first show facts from which the tribunal could, in the absence of inadequate explanation from the respondent, conclude that the respondent has committed an unlawful act of discrimination. Once the tribunal has so concluded the burden of proof then shifts to the respondent to prove that he did not make an unlawful act of discrimination. The burden of proof has been considered subsequently in a number of cases including Madarassy v Nomura International plc [2007] IRLR 246. In that case, Lord Justice Mummery said:-
“The bare facts of the difference in status and the difference in treatment only indicate the possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that on the balance of probabilities the respondent had committed an unlawful act of discrimination. “Could conclude” in Section 63A(2) must mean that “a reasonable tribunal could properly conclude” from all the evidence before it.”
4.10 In Laing v Manchester City Council [2006] IRLR 748, Mr Justice Elias said:-
“The focus of the tribunal’s analysis must at all times be the question of whether or not they can properly and fairly infer race discrimination (in that case). If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a tribunal to say, in effect there is a neat question as to whether or not the burden has shifted, we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it is nothing to do with race.”
4.11 In Nelson v Newry and Mourne District Council [2009] NICA 24 Lord Justice Girvan, referring to the decision in Madarassy, added:-
“This approach makes it clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the tribunal could properly conclude, in the absence of adequate explanation, that the respondent has committed an act of discrimination … The need for the tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”
4.12 We are also conscious of the judgment of Elias LJ in Laing (referred to above) in which it was noted that it was not obligatory for a tribunal to go through every step set out in Igen in each case. As was noted in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] NI 147, by Lord Nicholl:-
“Sometimes the “less favourable treatment” issue can be resolved without, at the same time, deciding the “reason why” issue.”
INDIRECT DISCRIMINATION
4.13 We have set out the definition of indirect discrimination above. This matter was considered by the Northern Ireland Court of Appeal in the case of James Robert Peifer v Castlederg High School, Limavady High School, Saint Patricks and Saint Brigid’s College Claudy, and Western Education and Library Board [2012] NICA 21. The Lord Chief Justice considered a situation very much similar to that which arises in this case. In a number of the claims under appeal, the claimant alleged that he had suffered indirect discrimination. However, as in this case, he had met the criteria for shortlisting and therefore had been shortlisted and interviewed for the posts at issue. Morgan LCJ stated as follows:-
“(18) The definition of discrimination in employment at the relevant time was contained in Article 3 of the 1976 Order [see above at para 4.2] … 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.
(19) The appellant disputes this. He relies on Directive 2002/73/EC which defines indirect discrimination as a situation 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. The appellant argues, therefore, that although he satisfied the criteria that were used for the post for which he applied the fact that less men than women would be likely to satisfy those criteria was sufficient. Since those criteria were applied to him he submits that he is the victim of indirect discrimination without having to demonstrate a particular disadvantage suffered by him.
(20) The date for transposition of Directive 2002/73/EC was 5 October 2005. On 1 October 2005 the 1976 Order was amended to replace the definition of indirect discrimination by substituting the following for Article 3(2)(b):
“(b) He applies to her a provision, criterion or practice which he applies or would apply equally to a man, but –
(i) which puts or would put women at a particular disadvantage when compared with men,
(ii) which puts her at that disadvantage, and
(iii) which he cannot show to be a proportionate means of achieving a legitimate aim.”
(21) That transposition became the subject of a Reasoned Opinion from the European Commission dated 23 November 2009. The Commission concluded that the requirement in the transposition for actual damage did not reflect the intent of the Directive that hypothetical damage should also be covered. The Commission relied on the decision in the Feryn case C-54/07 for the conclusion that where candidates were dissuaded from the labour market, they were potential victims covered by the Directive. The Commission noted that a requirement that an alleged victim of indirect discrimination was put or would be put at a disadvantage would normally bring UK law into line with the Directive. On foot of this determination the Sex Discrimination (Amendment) Regulations (Northern Ireland) 2011 were made on 31 March 2011 and amended Article 3(2)(b)(ii) of the 1976 Order by inserting the words “or would put” after the word “puts”.
(22) The effect of the 2011 amendment of the 1976 Order is to limit a claim for compensation under Part III of the 1976 Order to those who had been or would be disadvantaged by the application of the provision, criterion or practice. The appellant submits that in light of his submission set out at paragraph 19 above that his transposition does not meet the requirements of the Directive. We do not agree. We consider that in the context of a claim of a claim for compensation the claimant must demonstrate that he has been or would have been put at a disadvantage. We consider that paragraph 24 of the Reasoned Opinion clearly supports this interpretation. For that reason we consider that the appellant’s reliance on the Mangold v Helm Case – 144/04 [2006] IRLR 143 is of no assistance to him. Our conclusion is also consistent with the decision of the EAT in Villalba v Merrill Lynch and Co [2006] IRLR 437.
(23) 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 or would put him at a disadvantage since his case is that he satisfies each criterion. We therefore, reject the appeal in relation to the pre-hearing review on 2 September 2011 …”
4.14 This tribunal is bound by that ruling of the Northern Ireland Court of Appeal and is required to follow it. We note that in the particular case before us, the claimant met the relevant criteria for the post as demonstrated by the fact that he was shortlisted for interview and was at that stage competing on a level playing field with the other shortlisted candidates.
5. DECISION
5.1 Indirect Discrimination
Despite repeated attempts by the Chair first of all to point out to the claimant that this case appeared to us to be a case of alleged direct discrimination on grounds of sex the claimant insisted that it was a case of indirect discrimination, or as he regularly referred to it, “institutionalised discrimination”. The Chair invited him on at least two occasions to identify the provision, criterion or practice which he said put him at a detriment compared to women but he would not do so. The only possible criteria which we could identify were those in relation to the shortlisting for the post. Since the claimant met those criteria and was shortlisted for the post we consider, applying the judgment of Morgan LCJ set out at paragraph 4.13 above, that the claimant did not suffer any detriment in this regard. Accordingly his claim of indirect discrimination (such as it is) will be dismissed.
5.2 Direct Discrimination
(ii) The claimant alleged that he had been discriminated against on grounds of his sex in relation to his non-appointment to the post of classroom assistant at Saint Colmcille’s in July 2005. There was a substantial bundle of documents produced to the tribunal. The claimant did not adduce any evidence to demonstrate why he should have been appointed, rather than the three other candidates who were interviewed and all of whom were ranked ahead of him. The only issue he raised in relation to the appointment of candidate A, the successful candidate was that, subsequent to interview, it appeared that she may not have had the six months’ experience which was a desirable criteria when it came to shortlisting for the post. The interview panel was not aware of this at the time, and we accept their evidence that they genuinely believed the successful candidate met the “experience” criteria both at shortlisting and interview stage. We agree that the second reference should have been drawn to the panel’s attention subsequent to interview and before the offer of the job was made to candidate A. However just as the respondent could not show definitively that candidate “A” had six months experience dealing with 11-16 year olds in a formal school environment, the claimant was not in a position to disprove this either, as candidate A had completed teacher training including classroom placements. Mrs Clarke pointed at the fact that the six months’ experience criterion was “desirable” rather than “essential” and we note that point. Given that it was applied however, we believe it should have been applied consistently. It was also noted that candidate “E”, who was shortlisted for the post, did not state explicitly on her form that she had six months experience of dealing with 11-16 year olds in a formal school setting, and again this was questioned by the claimant. In the event, candidate “E” was not interviewed for the post and we therefore believe that her situation is not directly relevant to the issue of sex discrimination. It may be that there were inconsistencies in the shortlisting, but this of itself is not evidence of sex discrimination.
The claimant put it to one of the interview panel that another candidate had not been shortlisted, who, he said, should have been. These inconsistencies and the shortlisting failures were not explained by the respondents. However, they worked both for and against the female candidates and as set out above, there was no detriment to the claimant: he was shortlisted and was interviewed for the post. Even if candidate “A” had not been shortlisted on the basis of her experience – and we take the point made by the respondents that this was a desirable rather than an essential criterion – there were two other candidates ranked ahead of the claimant at interview and whose marking he did not challenge in any way. The claimant did not establish that he was better than any of the candidates ranked ahead of him. The fact that a female candidate was shortlisted and there was a question mark over that shortlisting does not prove without more that there was sex discrimination on the part of the respondent in respect of the claimant. It is for the claimant to prove his case on the balance of probabilities. He must show facts from which the tribunal could conclude, in the absence of a proper explanation, that there has been unlawful discrimination. He has failed to do so. The claimant has not adduced any evidence to show that he was a superior candidate to any of the three woman ranked ahead of him in this competition. The claimant’s claim of direct discrimination on the grounds of sex in relation to his failure to be appointed to the post of Classroom Assistant at St. Colmcilles must fail and be dismissed.
Chairman:
Date and place of hearing: 28 and 29 May 2013, Belfast.
Date decision recorded in register and issued to parties: