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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Peifer v St Louise's Comprehensive Coll... BELB [2013] NIIT 01616_05IT (22 May 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/1616_05IT.html
Cite as: [2013] NIIT 1616_5IT, [2013] NIIT 01616_05IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1616/05
CLAIMANT: James Robert Peifer
RESPONDENTS: 1. St Louise’s Comprehensive College
2. BELB
DECISION
The unanimous decision of the tribunal is that the claims of the claimant of direct and/or indirect discrimination on the grounds of sex and/or discrimination by way of victimisation, pursuant to the Sex Discrimination (Northern Ireland) Order 1976, are dismissed.
Constitution of Tribunal:
Chairman: Mr N Drennan QC
Members: Mrs E Gilmartin
Mr B Mackin
Appearances:
The claimant appeared in person and was not represented.
The respondents were represented by Mr A Colmer, Barrister-at-Law, instructed by the Education & Library Boards Solicitors.
Reasons
1.1 The claimant presented his claim form to the tribunal on 23 November 2005, in which he made a claim of direct and/or indirect discrimination on the grounds of sex and/or discrimination by way of victimisation, pursuant to the Sex Discrimination (Northern Ireland) Order 1976 (‘the 1976 Order’), in relation to his failure to be appointed to two posts at the first respondent, namely:-
(i) Classroom Assistant (SCO5/23/16);
and
(ii) Classroom Assistant (Special Needs) – Temporary (SCO5/23/17);
following a recruitment and selection exercise carried out by the respondents in respect of each post. The respondents presented a response to the tribunal on 21 December 2005, in which they each denied liability for the said claims.
1.2 At a Case Management Discussion on 4 October 2012, as set out in the Record of Proceedings dated 15 October 2012, the Vice President identified the claimant’s claims of direct and/or indirect discrimination and/or discrimination by way of victimisation, pursuant to the 1976 Order, in relation to the claimant’s failure to be appointed to the said posts with the first respondent and, in particular, in circumstances where:-
(i) in relation to post SCO5/23/16 (‘Post 16’) he had not been shortlisted; and
(ii) in relation to post SCO5/23/17 (‘Post 17’) he had not been appointed, following interview.
At the commencement of the hearing, it was confirmed by the parties that these were the relevant issues to be determined by the tribunal in these proceedings.
At the said Case Management Discussion, the Vice President also stated at Paragraph 10 of the record:-
“10. After discussion I took the view that this was not the type of case where the witness statement procedure would be productive; or indeed the type of case where the tribunal’s directions were likely to be obeyed or followed to the letter. I therefore ruled that this, unusually, was the type of case which would be best dealt with by oral evidence and directed that it would be dealt with in that manner.”
Further, as set out in Paragraph 13 of the said record, the Vice President also stated:-
“13. Again the claimant asked for this matter to be postponed until 3 July 2013. Again I advised him that this was not possible. Following discussion, the matter was listed for five days maximum from:-
25 February 2013 – 1 March 2013.”
Notice of Hearing for the said dates of hearing was issued to the parties on 7 November 2012.
1.3 The tribunal heard oral evidence from the claimant. It further heard oral evidence, on behalf of the respondents, from Mr Brendan Stewart, Mr Michael Smyth, Mrs Patricia Grant and Mr Gerard Campbell. The tribunal was also referred, in the course of the said evidence, to various documents contained in the bundles prepared by both the respondents and the claimant. At the conclusion of the evidence, during the course of submissions by the parties, the various legal authorities and/or relevant legislation, to which further reference is made elsewhere in this decision, were referred to by both the claimant and Mr Colmer.
1.4 Before the commencement of the hearing, the claimant applied to record the proceedings on his own tape recorder. The respondents’ representative did not object. The claimant indicated to the tribunal he had a hearing difficulty, albeit he had a hearing aid; but in particular, because he had no representative he found such a recording helpful for note-taking and preparation for each day of the hearing and preparation of any oral submissions. In the circumstances, in light of the foregoing, the tribunal decided to allow the claimant to make his own recording; but, in doing so, reminded the claimant of the recording carried out by the tribunal, in accordance with the terms of the President’s Practice Direction, dated 7 May 2012.
1.5 Before the commencement of the proceedings, the claimant made an application for the postponement of the hearing, on the grounds that he had recently been a claimant in a number of cases listed before the tribunal and was to be also a claimant in a number of cases over the following few months; and, in those circumstances, he submitted he had not had sufficient time to prepare for this hearing and he required further time. He also stated that he had been involved in a number of appeals to various higher courts and had recently been required to lodge a further appeal to the Court of Appeal. All of this had taken up a considerable amount of his time, which would otherwise have been devoted to the preparation for this hearing. It was apparent to the tribunal that, if the tribunal granted the postponement application, this claim would not be able to be heard for a considerable period of time, given, as the claimant acknowledged, there were a number of other cases, in which he was a claimant, which were already listed before the tribunal over the next few months. The respondents’ representative strenuously objected to the application, pointing out, in particular, that the date for this hearing had been set out at the Case Management Discussion on 4 October 2012, with Notice of Hearing on 12 November 2012 and he submitted that, in his opinion, the claimant had had ample time to prepare for this hearing, which he emphasised to the tribunal related to matters which had occurred in or about 2005. Having heard these oral submissions by both the claimant and the respondents’ representative, the tribunal, decided, after consideration, not to grant the claimant’s application for a postponement. In doing so, the tribunal took into account, in particular, that these claims had commenced in 2005 and the claimant had known of the date of hearing since 4 October 2012, when the issues to be determined had been identified by the tribunal. The tribunal was aware that, due to the large number of cases which the claimant has brought to this tribunal, it had been necessary for the Vice President, at various Case Management Discussions, to schedule all these claims, including this claim, in order to ensure that all the claimant’s claims could be heard within a reasonable period. The tribunal was reluctant, unless exceptional grounds were shown to have arisen, since the schedule was drawn up, to disturb the said schedule. It was not satisfied any such grounds were shown by the claimant in his application. Further, the tribunal was satisfied that the claimant had had sufficient time to prepare for this hearing. The fact the claimant had brought a large number of appeals over the last number of years, and indeed was continuing to do so up until shortly before the commencement of this hearing, did not persuade the tribunal this was a sufficient reason to alter the tribunal’s decision not to postpone this hearing. The tribunal had no doubt, given that the events, the subject-matter of this claim, had occurred in or about 2005, that this claim should be heard, in the interests of justice for both parties, as soon as possible. In this context, the tribunal also noted the terms of the judgment of the Lord Chief Justice in the case of Peifer v Castlederg High School and Western Education & Library Board & Others [2012] NICA 21, when he referred, when dismissing the claimant’s appeal against the decisions of various tribunals to refuse similar applications to adjourn claims brought by the claimant, to the length of time since the factual matters, the subject-matter of each said claims, had occurred and the relevance of such a factor when determining such an application. Indeed, the tribunal had serious concerns about the claimant’s credibility in making the application, where it appeared, from the above judgment, that he was merely repeating, without more, a pattern of such applications at the commencement of each set of proceedings. This was confirmed to the tribunal, before the tribunal had had any opportunity to reach any decision on his application, whether in his favour or not, when the claimant informed the tribunal he would, in any event, be appealing any decision made by the tribunal. Further, as the hearing progressed, the tribunal noted, during the course of the hearing, the claimant showed no lack of preparation for this hearing and/or any lack of knowledge, of either the legal or the factual issues, the subject-matter of his claim.
1.6 At the outset of the hearing, the tribunal, having ascertained from the parties the likely number of witnesses to be called and/or the nature of their evidence, timetabled (without objection) the giving of the evidence by those witnesses to ensure the evidence and submissions were completed within the period allocated to the hearing, as set out in the Notice of Hearing (see further Veitch v Red Sky Group Ltd [2010] NICA 39). In fairness to both parties and taking account of the fact, in particular, that the claimant was not a litigant in person, both the claimant and the respondents’ representative largely kept to the said timetable, with the tribunal granting some flexibility, insofar as it considered necessary and appropriate to do so. At the conclusion of the evidence, the parties were given time to prepare overnight their oral submissions, which again both the claimant and the respondents’ representative concluded within the agreed timetable for the making of such oral submissions.
2.1 Having considered the oral evidence given to the tribunal by the claimant and the witnesses on behalf of the respondents, the documents contained in the ‘trial’ bundles, to which the tribunal was referred during the course of the hearing, together with the oral submissions of the claimant and the respondents’ representative, the tribunal made the following findings of fact, as set out in the following sub-paragraphs, insofar as necessary and relevant for the determination of the claimant’s claims.
2.2 On 31 May 2005, advertisements were issued by the respondents for two positions at the first respondent (‘the College’), namely:-
(a) SC23/16 Classroom Assistant (Post 16)
Hours : 321/2 per week
Hourly rate : £6.57 - £8.65 (depending on age/qualifications held)
Preference may be given to those applicants who have experience in working with children with emotional and behavioural difficulties and/or learning difficulties. Preference may also be given to those applicants who hold a relevant qualification.
(b) SC23/17 Classroom Assistant (Special Needs) (Post 17)
Hours : 321/2 per week
Hourly rate : £6.57 - £8.65 (depending on age/qualifications held)
A special schools allowance is also payable.
Preference may be given to those applicants who hold a relevant qualification and/or have experience of working with children with special educational needs. This is a temporary post subject to review.
2.3 The closing date for applications for each of the said posts was 17 June 2005. The claimant applied for Post 16 and Post 17 on 2 June 2005. In essence, his applications were in the same terms for each post. In the event, the recruitment process for Post 17 was concluded before the recruitment process for Post 16. In light of the foregoing, it is necessary to first consider the recruitment process in respect of Post 17.
2.4 Post 17 –
(a) There were 16 applicants for the post, 14 females and 2 males, one of whom was the claimant. A short listing meeting was held on 29 June 2005. There was a short listing panel of three Governors of the College:-
Mr B Stewart (Teacher in the College), who was chairman of the panel;
Mr R Leonard, who is now deceased; and
Mr M Smyth (a Teacher in the College).
Mr G Campbell, the Assistant Bursar of the first respondent, was primarily in attendance in an administrative/secretarial role, as the representative of the Principal/Management of the College in order to ensure the members of the panel had copies of all relevant documents and to provide guidance, insofar as necessary, the procedure to be followed at the various stages of the recruitment process. He had no voting/decision-making role, but he did also fill in an assessment form at the interview.
(b) A relevant qualification, referred to in the advertisement, and which was used as the relevant criteria for the short listing of the candidates for the said post was contained in JNC Circular No: 34. This circular included, as a relevant qualification:-
‘Teaching qualification in a nursery, special, primary or post-primary school approved by Teacher Training Institution formerly DENI’
It was not disputed the claimant had such a teaching qualification, namely a PGCE and thereby satisfied the said short listing criteria. Fourteen applicants were called for interview –namely 12 female and 2 male. Ten candidates, one of whom was the claimant, attended for interview – 9 females and 1 male (the claimant). Four candidates did not attend, including the other male, who had been shortlisted, as set out above.
(c) Interviews were held on 26 August 2005. The following questions were asked of each candidate by the members of the interview panel, who were the same as for the short listing exercise:-
(1) Would you like to tell us why you have applied for this post of Classroom Assistant and any relevant experience you might have?
(2) What are your views on children with special learning needs being educated in mainstream schools – advantages/ disadvantages?
(3) What personal qualities are necessary for working with an individual special needs pupil and liaising with her teachers?
(4) What would you see as the main difficulties which might be encountered in carrying out this post?
(5) What importance would you place on keeping daily written records of your pupil and being accountable to the HOY or Pastoral Team?
(d) At the conclusion of the interviews, the interview panel recommended, based on performance at interview of the candidates, that a female candidate be appointed. The reserve candidate was also female. The claimant was therefore not appointed to the position, following the said interviews.
(e) The tribunal considered very carefully the answers given by the claimant and the other candidates, who were not interviewed, insofar as necessary to do so, in answer to the said questions, as noted by the members of the interview panel on their assessment forms, which they completed during the course of the interviews. It has to be recognised that these notes were notes and not a verbatim record; but the tribunal was satisfied that the notes taken by the interview panel clearly illustrated the principle points made by each of the candidates to the said questions, and were the basis for their decision based on his performance not to select the claimant and to appoint the successful candidate.
In the following sub-paragraphs the tribunal sets out, by way of illustration/example, insofar as material and relevant, the contrast between the performance of the claimant and the successful candidate, and where appropriate the reserve candidate, in answering the first, third, fourth and fifth questions. The answers to the second question by the said candidates did not reveal such a disparity in performance.
(f) The first question, as referred to above, was a two-part question and sought not only information why a candidate had applied but also, in particular, details of relevant experience.
The tribunal is satisfied the claimant, at the interview, failed to provide to the members of the interview panel details of any relevant experience; but rather he concentrated on the first part of the question – ‘why he had applied for the post’. This, in essence, related to his understandable wish to obtain the post in order to be in a position to obtain other teaching posts in the future, having gained, as he hoped by appointment of this post, the ‘first step on the ladder’. It was not sufficient, in the view of the interview panel, which the tribunal accepts, for the claimant to merely refer to the fact that he had classroom experience without more, in the context of the question that had been asked and the position which he had applied for. By way of contrast, the tribunal noted the reserve candidate, in answer to the first question, gave considerable details of her relevant experience as a volunteer in a primary school, including, for example, her experience with children with Attention Deficit Hyperactivity Disorder (‘ADHO’) and autism/working with children with behavioural difficulties, as such a volunteer. Further, the tribunal was satisfied the successful candidate, in answer to the first question, gave detailed relevant experience gained by her, largely based on her ‘in-house’ experience at the College, where she was employed for approximately 18 months at the time of this application, as a Learning Support Assistant. She clearly used the experience she had gained, as she was entitled to do, to her advantage in the interview, to illustrate her answer to this question and, in particular, when giving details of her relevant experience.
(g) The third question focused on the personal qualities of the candidates, in the context of the post applied for. The claimant, at the interview, inter alia, as set out in the notes Mr Stewart, referred to ‘his broad educational background’, that he had ‘gone to Catholic schools his whole life’, and that he had had ‘a caring attitude and patience’ and ‘could provide various ways of approaching different problems/under the supervision of a teacher’. The tribunal accepts, as found by the panel, his answer, as illustrated above, did not give a proper and relevant answer about his personal qualities in the context of the post applied for, other than his limited reference to caring attitude and patience. The tribunal noted that the successful candidate, by way of contrast, in answer to this question, gave detailed answers in relation to her personal qualities, with examples of qualities relating to the post, such as motivation, good organisational skills and/or ability to interact/reach out.
(h) The fourth question related to the various difficulties to be encountered in carrying out the post applied for. The tribunal is satisfied, at interview, the claimant again did not focus on the question asked. Mr Stewart noted that the claimant, for example, ‘did not see any difficulties having been a teacher … I would treat them as a learning experience myself’. Again by way of contrast, the tribunal is satisfied, as illustrated by the notes, the successful candidate and the reserve candidate each focused on the question and suggested relevant difficulties each might encounter in the post. Indeed, even in the course of the hearing, the claimant still could not foresee any difficulties in carrying out the post, which seemed, in the tribunal’s view, to be somewhat unrealistic and less than convincing. In the circumstances, the tribunal could fully understand why the interview panel marked the claimant down on foot of his answers to this question.
(i) The fifth question related to the keeping of daily records and, in particular, focused on the importance of same. Again, the tribunal is satisfied the claimant, at interview, did not provide good and relevant answers to the question asked in the context of the post applied for. In essence, the claimant’s answers could be summarised by the note of Mr Stewart, where he noted the answer of the claimant – ‘any paperwork that needs to be done no problem’; and also the note of Mr Smyth where he noted the answer of the claimant – ‘did job reports in military do not have a problem with paperwork’. The tribunal is satisfied the question did not relate to whether the claimant could do reports but the importance of same. As set out in the said notes of his answer, this distinction does not appear to have been understood and appreciated by the claimant. By way of contrast, the successful candidate, for example, focused on the need to keep such records for a child accurately and up-to-date and answered using the experience she had clearly gained, when working, as set out previously, for the College over the previous 18 months.
2.5 In light of the foregoing, the tribunal was satisfied that the claimant, as found by the interview panel, did not perform as well as the successful candidate (or indeed the reserve candidate) at the interview. In particular, he failed to answer the questions that he was asked, unlike the successful and/or the reserve candidate, as illustrated above. It was therefore not surprising, in the judgment of the tribunal, that he was not recommended for appointment to the said post by the panel by reason of his said performance at the interview. There is no doubt that, during the course of cross-examination, when his failure to properly answer the focus of the questions, which had been put to him at the interview, was exposed by the respondents’ representative, the claimant began to give what might have been found by the panel to be more focused and acceptable answers. However what is relevant is the performance on the day of the interview, not during the course of cross-examination at a tribunal hearing. The tribunal was satisfied, contrary to what he sought to suggest during the course of his cross-examination, that the answers which he was giving, during the course of the hearing, were not given at the time of the interview. If they had been the tribunal is satisfied they would have been noted by the interview panel on their assessment forms.
2.6 Post 16 –
There were 21 applicants for the post – 18 females and 3 males, including the claimant. A short listing meeting was held on 27 October 2005. There was a short listing panel of three Governors of the College:-
Mr P Graham, a Solicitor, who died in or about May 2012;
Mrs P Grant, a Trustee Governor; and
Mr M Smyth, a Teacher in the College, who had previously sat on the short listing/interview panel for Post 17
Sister Nuala Kelly, the Vice Principal of the College, was present at the short listing meeting instead of Mr Campbell who had a potential conflict of interest, as he knew one of the candidates in a personal capacity. Sister Kelly’s role was similar to that of Mr Campbell in relation to Post 17. The panel members, having reached their decision on short listing, did not have any role in the sending out of relevant correspondence on foot of any decisions made by them. This was handled, principally by Mr Campbell, after Sister Kelly passed to him the relevant documents, which recorded the decision of the short listing panel.
2.7 The short listing panel, at the meeting on 27 October 2005, decided, at the conclusion of the short listing meeting that five candidates satisfied the short listing criteria, namely four female and one male (not the claimant). Only one of the shortlisted candidates, a female, attended for interview, the remaining shortlisted candidates having withdrawn prior to the interviews, which were held on 7 November 2005 by the interview panel, the membership of which was the same for the short listing exercise. The candidate who was interviewed was not recommended for appointment, and it was decided to re-advertise the post.
2.8 Mr Graham, the Chairman of the short listing and interview panel, completed and signed a panel report sheet of the recruitment exercise. Firstly, on 27 October 2005, after the short listing meeting, he set out, in particular, the candidates who had been shortlisted. Again, following the interview on 7 November 2005 he completed and signed the panel report sheet setting out, in particular, that no candidate was recommended for appointment. The said panel report sheet, which is a standard form, contains two pages and, on the second page, there is a section for the Chairman to complete, inter alia, setting out the short listing criteria used at the short listing meeting. The panel report sheet at Page 2 states that the criteria used by the short listing panel was ‘a relevant qualification’. However, the tribunal is satisfied this had not been stated on the panel report sheet completed by the Chairman, Mr Graham, as it should have been; but was written on the said sheet subsequently by Mr Campbell, some day or two after the interview meeting on 7 November 2005. He did so after the sheet had been sent to him by Mr Graham and he had noted that the short listing criteria had not been stated on the sheet by Mr Graham. The tribunal accepts that Mr Campbell, when he noticed the said omission, contacted Mr Graham by telephone and was informed by him the short listing criteria used was ‘a relevant qualification’; and, as a result, Mr Campbell wrote the relevant information, as set out above, on the panel report sheet for sake of completeness. Despite the above failure of Mr Graham to properly complete the paperwork, as set out above, relating to the short listing exercise, the tribunal is satisfied that ‘relevant qualification’ was the criteria used for the short listing exercise in relation to Post 16 – which were the various qualifications set out in JNC Circular No 34, referred to previously.
2.9 As stated previously, the short listing panel decided that five candidates should be shortlisted – four female and one male, but not including the claimant, on the basis of the said criteria:-
(a) Candidate B, who was a female, in her application form dated 16 June 2005 stated in relation to her qualifications she had ‘NVQ 3, Early Years Care and Education, Level 3 – but under grade/date obtained she stated “under completion. Course finishes end of July”. It was not disputed, by the claimant, this would be a qualification, if completed, which would be a relevant qualification under JNC Circular No 34 and therefore would entitle this candidate to be shortlisted – but, as he correctly pointed out, at the date of the application for the post, she did not actually have the qualification (see later).
(b) Candidate J, who was male [tribunal’s emphasis] in his application form dated 10 June 2005, stated, in relation to his qualifications, he had NVQ Childcare and Education Level 3, Grade : Distinction, obtained in 2001. It was not disputed by the claimant that this qualification was a relevant qualification under JNC Circular No 34 and therefore satisfied the said short listing criteria and entitled this candidate to be shortlisted.
(c) Candidate M, who was female, in her application form dated 16 June 2005, stated, in relation to her qualification, she had NVQ Childcare and Education Level 3, Grade : City & Guild Pass, obtained in 2003. Again, it was not disputed by the claimant this qualification was a relevant qualification under JNC Circular No 34 and therefore satisfied the short listing criteria and this candidate was entitled to be short listed.
(d) Candidate N, who was female, in her application form dated 6 June 2005, stated, in relation to her qualification, she had BTech Cert in Childhood Studies/Nursery Nursing, with distinction. Again, it was not disputed by the claimant this qualification was a relevant qualification under JNC Circular No 34 and therefore satisfied the said short listing criteria and therefore this candidate was entitled to be shortlisted.
(e) Candidate T, who was female, in her application form dated 8 June 2005, stated, in relation to her qualification, she had North City Training NVQ 2 (Childcare) February 2004 (Passed). It was not disputed by the claimant this qualification was a relevant qualification under JNC Circular No 34 and therefore satisfied the short listing criteria. This candidate, as set out previously, was the only shortlisted candidate who attended for interview; but, following interview, was not recommended for appointment by the interview panel.
2.10 Those five candidates, referred to above, who were shortlisted were sent letters on 28 October 2005 inviting them to interview on 7 November 2005. On the same date, request for references were also made, pointing out that an early reply would be appreciated as the interviews were on 7 November 2005. The tribunal is surprised such a short period was given; but was assured by Mr Campbell it was not unusual and worked in practice.
Although the decision was taken not to shortlist the claimant and the other non-shortlisted candidates at the short listing meeting on 27 October 2005, the College, in accordance with normal practice, did not so inform them until each was sent a letter on 7 November 2005, informing them:-
“Further to your application for the above post. I regret to inform you that you have not been selected for interview on this occasion. I should like to thank you for the interest you have shown in this post.”
2.11 It was not disputed, in the tribunal’s view correctly, by the respondents’ representative, that the claimant in his application form, dated 2 June 2005 had, as he had in his application for Post 17, relied in relation to his qualifications on his teaching qualification, namely his PGCE, and that this was a relevant qualification under JNC Circular No: 34; and, as the claimant contended and agreed by the respondents, he thereby satisfied the short listing criteria and should have been shortlisted by the short listing panel along with the other five candidates.
2.12 The tribunal noted, in particular, in relation to other non-shortlisted candidates, the following matters:-
(a) Candidate A, who was female, in her application form dated 12 June 2005, stated in relation to her qualification she had, inter alia, a PGCE. As with the claimant this was a relevant qualification under JNC Circular No: 34 and she was therefore entitled to be shortlisted but, as set out above, was not shortlisted by the short listing panel.
(b) Candidate K, who was female, in her application form dated 14 June 2005, stated in relation to her qualifications she had City & Guilds NVQ, 2 August 2003 and City & Guilds NVQ3, February 2005. In addition, she referred to various qualification numbers in respect of each qualification, which the tribunal accepts, if properly researched, would have shown these were childcare qualifications, which were relevant qualifications under JNC Circular No: 34 and therefore would have satisfied the short listing criteria. However, as set out above, this candidate was also not shortlisted.
2.13 The claimant, in the course of his cross-examination, when referring to the failure to shortlist him, but also Candidate A, in the circumstances referred to previously, acknowledged that the short listing panel must have failed to give either his application and/or Candidate A’s application due consideration and may have been ‘sloppy’ when dealing with their applications.
2.14 By letter dated 23 November 2005, Mr Campbell informed Mrs Lewis of Human Resources of the second respondent, that no appointment had been made by the interview panel in relation to Post 16 and he asked for the post to be re-advertised.
2.15 In relation to the failure to shortlist the claimant, which was clearly in error, as accepted by the respondents, and/or the reason for such a failure, Mr Graham, as set out above, was now deceased and there was no record produced to the tribunal of any reason given by him for the said failure. Mrs P Grant, who gave evidence to the tribunal, frankly accepted in 2013 she had no recollection of the short listing meeting, which had occurred in 2005, and she had only been made aware of the present proceedings in or about December 2011. In the circumstances, she therefore found she was not able to give any explanation for any of the decisions taken at the short listing meeting and, in particular, why the panel had decided not to shortlist the claimant. Mr Smyth, who also gave evidence, similarly stated that, given the passage of time, he had no recollection of the short listing meeting and could give no explanation for any of the decisions taken at that meeting and, in particular, why the panel had decided not to shortlist the claimant. He acknowledged that he had been a member of the short listing panel for Post 17, where the claimant had been found to satisfy the short listing criteria for that post, and that the same short listing criteria applied to Post 16. However, he could not remember why, in these circumstances, the claimant had failed to be shortlisted for Post 16, albeit he had been shortlisted, under the same criteria, for Post 17. He accepted that, in his opinion, Candidate B, who as set out in her application form only had a pending qualification, should not have been shortlisted by the short listing panel. Again, given the passage of time, he did not know why she had been shortlisted in the circumstances. To have done so in such circumstances clearly would have been speculation on his part. The opinion of Mr Smyth was confirmed by Mr Campbell who stated in evidence, which the tribunal accepts, that if he had been in attendance at the short listing meeting, he would have advised the panel that a pending qualification, at the time of application, would not have satisfied the said short listing criteria for Post 16.
Mr Smyth stated in evidence, which the tribunal accepts, that immediately following conclusion of any such short listing meeting he would have returned to his day-to-day tasks as a Teacher in the College.
2.16 On 7 September 2005, following the interviews for Post 17, which took place as set out above on 26 August 2005, the second respondent wrote to the claimant in a letter headed:-
“ ‘Appointment of Classroom Assistant (Special Needs) – St Louise’s CC’
I regret to tell you that you have been unsuccessful in your application for appointment to the above post. On behalf of the panel I would like to thank you for your interest in the post and for attending the interview.”
The claimant, given the heading on the said letter and its contents has, in the tribunal’s judgment, at all times been fully aware the letter related to his application for Post 17, the interview for which he had just attended, and had no relevance to Post 16. Indeed, at that time, he had not been informed of the result of his application for Post 16. He had also been informed by the College, by letter dated 7 July 2005, that in relation to Post 16 the short listing/interviews would not take place until late August/early September 2005 and that he would be notified in due course of the outcome. In the event, as set out previously, the short listing for Post 16 did not take place until 27 October 2005 and the claimant was informed by the College on 7 November 2005 he had not been selected for interview.
By letter dated 19 September 2005, the claimant wrote to the College stating in an unheaded letter:-
“I recently received word of my non-selection relative to your interview for the Classroom Assistant vacancies : ‘You have been unsuccessful. Thanks.’ I had thought the interview (26th of August) went rather well.”
Since, he had only had an interview for Post 17, not Post 16, on 26 August the letter sent by the claimant had to refer to the recruitment process for that post and not for Post 16, as he tried to suggest, during the course of this hearing. Following a reminder, on 10 October 2005, the College replied, in a letter headed:-
“ ‘Classroom Assistant (Special Needs)’
With reference to your recent correspondence regarding your interview for the above position, I would advise that it is practice that personal feedback is not given at present. The panel agreed unanimously that the appointment be offered to the candidate who performed best at interview. I would assure you that the process was carried out in a fair and equitable manner.”
2.17 As set out above, it was agreed by the parties that the claimant satisfied the criteria for both Post 16 and Post 17 – namely he had a relevant qualification, as defined in JNC Circular No: 34, having a relevant teaching qualification, namely the PGCE. The respondents’ representative, for the purpose of these proceedings, also accepted that the claimant’s analysis of the various statistics obtained by the claimant from the second respondent, in relation to the breakdown of males and females appointed to the post of Classroom Assistants, after applying the criteria of the relevant qualification, as set out in JNC Circular No: 34. In particular, the respondents’ representative accepted that the statistics showed that, by applying the said criteria, far more females, in the region of 98% - 100%, (depending on the actual qualification applied), had been appointed than males. In view of the acceptance of this statistical evidence by the respondents’ representative and the tribunal’s decision, as set below, it was not necessary to set out, in this decision, the precise statistical analysis and percentages found against each relevant qualification as set out in JNC Circular No: 34.
2.18 On 19 August 2005, the claimant issued proceedings to the tribunal in relation to alleged discrimination on grounds of sex by various schools (not including the College) and the second respondent (BELB) for which schools it had responsibility, in relation to his non-selection for various Classroom Assistant posts in these various schools. On 25 August 2005, the tribunal wrote to BELB as a named respondent to those claims informing it of the claims and asking for a response by 22 September 2005. On 22 August 2005, the claimant sent BELB a questionnaire in relation to the claims, the subject-matter of the proceedings, as set out above, which had been presented to the tribunal on 19 August 2005.
2.19 The decisions taken by the College in respect of Post 16 and Post 17 were taken by the members of the panels, as set out previously, not by BELB, who were subsequently informed by the College of the decisions taken by the said panels, and who did not have a representative on any of the said panels or any representative in attendance. In light of the foregoing, the tribunal is satisfied that the decisions made in relation to Post 16 and Post 17, the subject-matter of these proceedings, were taken by the members of the said panels, as set out previously, and that they did so in the absence of any knowledge of either the various other claims presented to the tribunal against BELB on 19 August 2005 or the questionnaire sent to BELB on 25 August 2005 in relation to same. There was no evidence of any such knowledge of these matters had been given to the College by BELB, when these decisions were taken. Those witnesses for the College, who were members of the said panels confirmed in evidence they had no knowledge of such matters when they took the said decisions. The tribunal accepts their evidence, which was not challenged by the claimant in any meaningful way.
3. Relevant legislation
3.1 The relevant legislation relating to the claimant’s said claims is contained in the Sex Discrimination (Northern Ireland) Order 1976, as amended.
3.2 By the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001, which came into operation on 20 August 2001, Article 3 of the 1976 Order was amended to provide as follows:-
“Direct and indirect discrimination against women
…
3(1) In any circumstances relevant for the purpose 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 large proportion of women than of 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 because she cannot comply with it.”
(3) Paragraph (2) applies to –
(a) any provision of Part III; and
… .”
3.3 By the Employment Equality (Sex Discrimination) Regulations (Northern Ireland) 2005, which came into operation on 5 October 2005, Article 3(2) of the 1976 Order was further amended so that sub-paragraph (b) (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,
(iii) which he cannot show to be proportionate means of achieving a legitimate aim.”
3.4 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 provided that in Article 3(2)(b)(ii) of the 1976 Order that after the word ‘puts’ the words ‘, or would put,’ were to be inserted.
3.5 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 to the treatment of men and Article 7 makes clear that the comparison of the cases of difference 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.
3.6 Article 63 of the 1976 Order provides:-
“(1) A complaint by any other 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.
3.7 Article 63A of the 1976 Order 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 is 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.”
3.8 Article 6 of the 1976 Order, as amended, in relation to discrimination by way of victimisation provides as follows:-
“(1) A person (‘the discriminator’) discriminates against another person (‘the person victimised’) in any circumstances relevant for the purpose of any provision of this Order if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and also by reason of the person victimised has –
(a) brought proceedings against the discriminator or any other person under this Order …,
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Order …, or
(c) otherwise done anything under or by reference to this Order … in relation to the discriminator or any other person, or
(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Order …
or by reason that the discriminator knows that the person victimised intends to any of those things, or suspects the person victimised has done, or intends to do, any of them.
(2) Paragraph (1) does not apply to treatment of a person by reason of any allegation made by him that the allegation was false and not made in good faith.
(3) For the purposes of Paragraph (1) the provision of Part III … framed with reference to discrimination against women shall be treated as applying equally to the treatment of men and for that purpose shall have effect with such modification as are requisite.”
3.9 Article 8 of the 1976 Order, as amended, 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 on 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.”
4.1 In relation to the burden of proof provisions set out in the relevant legislation, as referred to above, the English Court of Appeal in the case of Igen v Wong [2005] IRLR 258, considered similar provisions, applicable under the legislation applying in Great Britain and, approved, with minor amendment, the guidelines set out in the earlier decision of Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332. In a number of decisions, the Northern Ireland Court of Appeal has approved the decision of Igen v Wong [2005] IRLR 258 and the said two-stage process to be used in relation to the burden of proof (see further Brigid McDonagh & Others v Samuel Thom t/a The Royal Hotel Dungannon [2007] NICA 1 and other decisions referred to below.) The decision in Igen v Wong [2005] IRLR 258 has been the subject of a number of further decisions in Great Britain, including Madarassy v Nomura International PLc [2007] IRLR 246, a decision of the Court of Appeal in England and Wales, and Laing v Manchester City Council [2006[ IRLR 748, both of which decisions were expressly approved by the Northern Ireland Court of Appeal in the case of Arthur v Northern Ireland Housing Executive & Another [2007] NICA 25. (See further the recent Supreme Court decision in the case of Hewage v Grampian Health Board [2012] UKSC 37, in which the Supreme Court approved the guidance in Igen and followed in subsequent case law, such as Madarassy [see below]. The Supreme Court did not consider any further guidance was necessary. It also emphasised it was not necessary to make too much of the role of the burden of proof provisions; they required careful attention where there was room for debate as to the facts necessary to establish discrimination but they had nothing to offer where the Tribunal was in a position to make positive findings on the evidence one way or the other.)
In Madarassy v Nomura International PLC [2007] IRLR 246 the Court of Appeal held, inter alia, that:-
“The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a 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. This would include evidence adduced by the claimant in support of the allegation of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject to the statutory absence of an adequate explanation at this stage the Tribunal needs to consider all the evidence relevant to the discrimination complaint, such as evidence to whether the act complained of occurred at all, evidence as to the actual comparators relied upon by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the claimant were of like with like as required by Section 5(3) and available evidence for the reasons for the differential treatment. The correct legal position was made plain by the guidance in Igen v Wong. Although Section 63A(2) involves a two-stage analysis of the evidence, it does not expressly or impliedly prevent the Tribunal at the first stage, from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing or rebutting the claimant’s evidence of discrimination … .”
4.2 In the case of Curley v Chief Constable of the Police Service of Northern Ireland and Another [2009] NICA 8, the Northern Ireland Court of Appeal approved the judgement of Elias LJ in Laing, which was also referred to with approval by Campbell LJ in the Arthur case, that it was not obligatory for a Tribunal to go through the steps set out in Igen in each case; and also referred to the opinion of Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] NI 147, where he observed at paragraph 8 of his opinion, as follows:-
“Sometimes a less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue”.
Lord Nicholl’s opinion in the Shamoon case made clear the normal two step approach of Tribunals in considering, firstly, whether the claimant received less favourable treatment than the appropriate comparator, which can include an actual or hypothetical comparator, and then, secondly whether the less favourable treatment was on the proscribed ground, can often be avoided by concentrating on why the claimant was treated as he/she was; and was it for the proscribed reason or for some other reason. If the latter, the application fails. If the former, there would normally be no difficulty in deciding whether the less favourable treatment, afforded to the claimant on the proscribed ground was less favourable than was or would have been afforded to others (see further Paragraph 11 of Lord Nicholls’ opinion). Indeed, Lord Nicholls’ opinion emphasised that the question whether there had been less favourable treatment and whether the treatment was on the grounds of [sex] are in fact two sides of the same coin.
4.3 The said reverse burden of proof provisions also apply to cases of victimisation (see further Rice v McEvoy [2011] NICA 9). Further, the House of Lords made clear, in the decision in the case of Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830, victimisation occurs when in any circumstances relevant for the purposes of the provisions of this act, a person is treated less favourably than others because he/she has done one of the protected acts, as defined in the 1976 Order. Thus, in order to make the necessary comparison it is necessary to compare the treatment afforded to the claimant who has done a protected act and the treatment which was or would be afforded to other employees, who had not done the protected act. This may involve a comparison with an actual or hypothetical comparator. In the Rice case Lord Justice Girvan at paragraph 33 of his judgement, when considering ‘the reason why issue’ stated:-
“In determining the reason why issue, it is necessary for the Tribunal to consider the employer’s mental processes, conscious and unconscious. If on such consideration it appears that the protected act had a significant influence on the outcome victimisation is established (see Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR 572 at 575, 576), the question is why did the alleged discriminator act as he did? What consciously or unconsciously was his reason? Unlike causation this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact (per Lord Nicholls in Chief Constable of West Yorkshire v Khan [2001] IRLR 830 at paragraph 24).”
Lord Scott in the Khan case referred to establishing ‘the real reason’, ‘the core reason’ and ‘the motive’ for the treatment complained of.
As Higgins LJ stated in Northern Ireland Fire and Rescue Service and Another v McNally (NICA unreported 29 June 2012) at paragraph 23 of his judgement.
“The primary object of the victimisation provisions is to ensure that employees who have taken steps to exercise their statutory rights (under the 1998 Order) are not penalised for doing so (see Lord Nicholls in Khan v Chief Constable of West Yorkshire Police (2001) UKHL 48 at Paragraph 16).
In the recent decision of Durrani v London Borough of Ealing [2013] UKEAT/0454, the Employment Appeal Tribunal (Longstaff P) has emphasised that a general unspecific complaint of detrimental treatment, which was simply unfair will not be sufficient to establish a complaint of discrimination by way of victimisation under the discrimination legislation. Such treatment must be shown to be linked to a protected act, as defined in the legislation:-
“There must be something sufficient about the complaint to show that it is a complaint to which at least potentially the Act [the discrimination legislation relating to victimisation – protected act] applies.”
4.4 In relation to whether the ‘protected act’ had a significant influence on the outcome, as referred to by Lord Nicholls in Nagarajan, that expression has been interpreted as an influence more than trivial. In Villalba v Merrill Lynch and Company [2006] IRLR 43, Elias J, as he then was, held that, if in relation to any particular decision where a discriminatory influence was not a material influence or factor then it was trivial and therefore according to the dicta in Igen v Wong insufficient to break the principle of equal treatment.
4.5 In order to qualify as a ‘detriment’, it was held in Shamoon by the House of Lords that a Tribunal must find that, by reason of the act or acts complained of, a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances where he thereafter had to work. It further held an unjustified sense of grievance could not amount to a detriment (see further Northern Ireland Fire and Rescue Service v McNally [NICA unreported 29 June 2012]).
4.6 In Nelson v Newry and Mourne District Council [2009] NICA 24, Girvan LJ referred approvingly to the decisions in Madarassy and Laing and also held that the words ‘could conclude’ are not to be read as equivalent to ‘might possibly conclude’. He said “the facts must lead to the inference of discrimination”. He also stated:-
“24. This approach makes clear that the complainants allegation of unlawful discrimination cannot be used 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 probably conclude in the absence of an adequate explanation that the respondent has committed an act of discrimination. In Curley v Chief Constable the Police Service of Northern Ireland and Another [2009] NICA 8, Coghlin LJ emphasised the need for a Tribunal engaged in determining this type of case to keep in mind the fact that claim put forward is an allegation of unlawful discrimination. The need for the Tribunal to retain such a focus is particularly important when applying the provisions of Article 63 A. The Tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”
4.7 Coghlin LJ in the case of Curley also referred to the well known dicta of Carswell LCJ, as he then was, at Page 273 of his judgment in the Sergeant A case, where Carswell LCJ emphasised the necessity for the Tribunal to look at the matter, in the light of all the facts as found:-
“(3) Discrepancies in evidence, weaknesses in procedures, poor record keeping, failure to follow established administrative processes or an unsatisfactory explanation from an employer may all constitute material from which an inference of religious discrimination may legitimately be drawn. But Tribunals should be on their guard against the tendency to assume that every such matter points towards a conclusion of religious discrimination, especially where other evidence shows such a conclusion is improbable on the facts.”
4.8 In relation to the amendments to the 1976 Order in relation to the definition of indirect discrimination under the said Order, pursuant to the provisions of the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001; the Employment Equality (Sex Discrimination) Regulations (Northern Ireland) 2005; and the Sex Discrimination Order 1976 (Amendment) Regulations (Northern Ireland) 2011, which have been previously set out in Paragraph 3.2 – 3.4 of this decision, were referred to in the course of the judgment of Morgan LCJ in the case of James Robert Peifer v Castlederg High School, Limavady High School, St Patrick’s and St Brigid’s College, Claudy, and Western Education & Library Board [2012] NICA 21, when he stated:-
“(18) 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 …’
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 posts 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 a victim of indirect discrimination without having to demonstrate any 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 have 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 this transposition does not meet the requirements of the Directive. We do not agree. We consider that in the context 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 plainly supports this interpretation. For that reason we consider that the appellant’s reliance on 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 & 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.
… .”
This tribunal, when determining the issues in the present proceedings, is bound by the judgment of the Northern Ireland Court of Appeal in the case of James Robert Peifer v Castlederg High School, Limavady High School, St Patrick’s and St Brigid’s College, Claudy, and Western Education & Library Board [2012] NICA 21, in particular, the relevant extracts from the judgment, as set out above; and is therefore required to follow it.
5.1 The tribunal reached the following conclusions in light of the findings of fact made by it, the legislative provisions and the case law, referred to in the previous paragraphs of this decision.
5.2 In relation to the failure of the claimant to be appointed to Post 17, following interview, the tribunal was not satisfied the claimant had established, on the balance of probabilities, that the tribunal could [tribunal’s emphasis] conclude (see Igen v Wong) the respondents had unlawfully discriminated against the claimant on the grounds of his sex in relation to the said failure to be appointed to the said post. The tribunal was satisfied the ‘reason why’ he failed to be appointed to the said post was because of his performance at the interview and not because of his sex (see further, in particular, the detailed findings of fact in relation to his said performance at the interviews, set out in Paragraphs 2.4 – 2.5 of this decision). The claimant’s claim of direct discrimination on the grounds of sex in relation to his failure to be appointed to Post 17 must therefore fail and be dismissed.
5.3 In relation to the claimant’s failure to be shortlisted for Post 16, it was not disputed that the claimant’s qualification of a PGCE was a relevant qualification and he was therefore entitled to be shortlisted. The issue for the tribunal to determine was therefore whether this failure was for a discriminatory reason, namely the claimant’s sex.
As emphasised in Curley v Chief Constable of the Police Service of Northern Ireland & Another [2009] NICA 8 (see further Paragraph 4.6 of this decision) a tribunal’s approach, in determining whether the tribunal could conclude the respondents had unlawfully discriminated against the claimant on the grounds of his sex, required it to be informed ‘by the need to stand back and focus on the issue of discrimination’. The tribunal, following that approach, was not satisfied the failure to shortlist the claimant for Post 16 was for a discriminatory reason, namely his sex. On the facts, as found by the tribunal, it was apparent that there were a number of mistakes/failures made by the short listing panel, not just in relation to the claimant, but also in relation to other candidates. Significantly, in the judgment of the tribunal, Candidate A, who was a female, and who also had a PGCE, the same qualification as the claimant, was not shortlisted, in error, by the short listing panel. Further, Candidate K, another female, also had the necessary relevant qualification but she also failed, wrongly, to be shortlisted by the short listing panel. The tribunal also noted the short listing panel made a further mistake in the case of Candidate B, a female, who should not have been shortlisted as she did not have the relevant qualification at the date of her application. The description given by the claimant to the work of this short listing panel, during the course of the hearing, as ‘sloppy’ was. in the tribunal’s judgment, an appropriate and accurate summary of the actions of the panel. As set out above, there were a succession of mistakes/failures for which there was no explanation by the respondents; but these applied, as seen above, to both female candidates as well the claimant, a male. In this context, the judgment in the Sergeant A case (see Paragraph 4.7 of this decision) is also of particular relevance:-
“Tribunals should be on their guard against the tendency to assume that every such matter points towards a conclusion of [sex discrimination] especially where other evidence shows such a conclusion is improbable on the facts.”
The tribunal also noted that Candidate J, another male, whom the claimant accepted was entitled to be shortlisted, as he had a relevant qualification, was properly shortlisted by the short listing panel.
In this particular case, the fact that another male was shortlisted but also that two other female candidates should also have been shortlisted but were not, due to the mistake/failure of the short listing panel pointed, in the tribunal’s judgment, to a conclusion that sex discrimination was improbable on the facts. In this context, it was of particular relevance, in the tribunal’s judgment, that Candidate A, a female, had the same [tribunal’s emphasis] qualification as the claimant a PGCE and both were not shortlisted, albeit wrongly. Standing back and focusing on the issue of discrimination, as referred to in Curley, the tribunal was not therefore satisfied, in the circumstances, in relation to the failure to shortlist the claimant for Post 16, it could conclude the respondents had unlawfully discriminated against the claimant on the grounds of his sex. The claimant’s claim of direct discrimination on the grounds of sex, in relation to his failure to be shortlisted for Post 16, must therefore fail and be dismissed.
5.4 In relation to the claimant’s claim of indirect discrimination, there was no dispute the claimant, in relation to both posts, satisfied the provision, criterion or practice imposed. He had, in particular, a relevant qualification, namely the PGCE, which was a criterion for the post. Since he satisfied this criterion, he was not therefore disadvantaged by the application of the provision, criterion or practice. Therefore, in light of the judgment of the Court of Appeal in Peifer v Castlederg High School & Others [2012] NICA 21 (see further Paragraph 4.8 of this decision) which decision the tribunal is required to follow, the claimant’s claim of indirect discrimination on the grounds of sex must therefore fail and be dismissed.
5.5 In relation to the claimant’s claim of discrimination by way of victimisation, the tribunal was also not satisfied the claimant had established the tribunal could conclude he had been so discriminated against. There was no evidence that the members of the interview panel for Post 17 or the short listing panel for Post 16 had any knowledge of either the various other claims presented by the claimant to the tribunal against BELB on 19 August 2005 or the questionnaire sent to BELB on 25 August 2005 in relation to those said claims, which were the ‘protected acts’ relied on by the claimant for the purposes of his said claim of victimisation. Further, there was no evidence any such knowledge of these matters held by BELB had been given to the College by BELB, when the decisions, in relation to Post 17 and Post 16, were taken by the members of the said panels. The decisions were taken by the members of the panel, not by BELB, who were subsequently informed by the College of the said decisions. BELB did not have a representative on any of the panel or any representative in attendance. In the circumstances, there was no evidence, on the facts found by the tribunal, the claimant had been penalised in relation to Post 17 or Post 16 for exercising his statutory rights in bringing various other claims to the tribunal on 19 August 2005 or sending the questionnaire to BELB on 25 August 2005, as set out above (see Northern Ireland Fire & Rescue Service & Another v McNally at Paragraph 4.4 of this decision). The claimant’s claim of discrimination by way of victimisation must therefore fail and be dismissed.
6.1 The claimant’s claim of direct and/or indirect discrimination on the grounds of sex and/or discrimination by way of victimisation, pursuant to the Sex Discrimination (Northern Ireland) Order 1976 are dismissed.
Chairman:
Date and place of hearing: 25 – 28 February 2013; and
1 March 2013, Belfast
Date decision recorded in register and issued to parties: