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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Peifer v Rathmore Grammar School [2014] NIIT 1509_05IT (21 January 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/1509_05IT.html
Cite as: [2014] NIIT 1509_05IT, [2014] NIIT 1509_5IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1509/05
CLAIMANT: James Robert Peifer
RESPONDENT: Rathmore Grammar School
DECISION
The tribunal unanimously dismisses the claimant’s claim for sex discrimination.
Constitution of Tribunal:
Chairman: Mr J V Leonard
Members: Mrs T Madden
Mr N Jones
Appearances:
The claimant appeared in person.
The respondents were represented by Mr Jonathan Dunlop, Barrister-at-Law, instructed by Jones Cassidy Jones, Solicitors.
The Evidence
1. The tribunal heard evidence from the claimant and on behalf of the respondents from Sister Ursula Canavan, retired Principal of Rathmore Grammar School, and from Ms Claire Miskelly. The tribunal also received bundles of documents into evidence.
The Claim and Defence
2. This was a claim of sex discrimination which the respondent denied in its entirety.
The Issues
3. There has been a number of Case Management Discussions concerning this case, held both in conjunction with other cases that have been pursued by the claimant and also concerning this case, specifically. At a Case Management Discussion held on 3 November 2005 it was directed that ten separate cases should proceed, including this case. At a Case Management Discussion held on 20 June 2006 further directions were made in respect of this and other cases brought by the claimant and then, at a Case Management Discussion held on 10 December 2012, directions were made specifically in regard to this case by the Vice President. The Vice President, following discussion, adopted the draft statement of issues prepared by the respondent and categorised the instant claim as being a direct discrimination claim arising out of an interview held on 20 May 2005, where the claimant was unsuccessful and a female candidate was appointed to the post in question. It was directed that the matter be listed for hearing at the end of November 2013. Accordingly the matter was listed to proceed to hearing on the basis of a claim for direct sex discrimination.
4. At the outset of the hearing the claimant applied for an adjournment of the case, citing issues in regard to other cases that he had brought both before the tribunal and also before the, superior, courts. The tribunal heard full submissions from both parties and, having considered the adjournment application by the claimant and the respondent’s objections thereto, the tribunal, for reasons that were given at the time, refused the claimant’s application and the matter accordingly proceeded.
5. The tribunal (after hearing argument as mentioned below) adopted the draft statement of factual and legal issues prepared by the respondent: -
Factual Issues to be determined:
(1) Did the claimant’s application form and interview performance demonstrate that he was a more suitable candidate for appointment than the successful candidate?
(2) Was the claimant assessed as less suitable for appointment than the successful candidate on the ground of his sex?
Legal Issues to be determined:
(1) Was the claimant assessed as less suitable for appointment than the successful candidate on the ground of his sex [Article 3(2)(a) of the Sex Discrimination (Northern Ireland) Order 1976: direct discrimination]?
(2) If the claimant succeeds in his claim, any appropriate award of compensation.
6. The claimant proceeded to initiate a series of observations or submissions that the tribunal construed as being an endeavour on the claimant’s part to renew an application to include within his case a claim for indirect sex discrimination. The claimant’s submissions were lengthy and detailed and the tribunal also heard argument on behalf of the respondent to the effect that the case to be met by the respondent ought properly to be confined to that of a claim for direct sex discrimination. Having heard both parties, the tribunal’s determination was that the claimant’s claim did not include a claim for indirect sex discrimination. Reasons for the tribunal’s determination were given orally by the tribunal after having heard the respective arguments. After exploring at some length with the claimant the case which he sought to make in the matter, the tribunal concluded that there was not a claim for indirect discrimination. The matter, as will be further detailed below, in brief summary, concerned the respondent’s recruitment process for a post of classroom assistant. The claimant did assert that he was properly capable of being appointed to that post. Central to the claimant’s case was the contention that he did meet the post requirements and criteria and his fundamental contention is very clearly that he ought to have been appointed in preference to the successful (female) candidate who was appointed. The tribunal drew to the claimant’s attention the judgement of 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. It is sufficient at this point to mention briefly (that being an extract at paragraphs 18, 19 and 23) the relevant portion of the judgement of the Lord Chief Justice in that case, which matter was essentially similar to the instant case as far as this central issue is concerned. Morgan LCJ therein states:-
“(18) The definition of discrimination in employment at the relevant time was contained in Article 3 of the 1976 Order … . 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.
(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 …”
7. The foregoing being the case made by the claimant, essentially (as was indeed pointed out to the claimant in very clear terms) the tribunal is bound by the judgement of the Court of Appeal in the foregoing matter. Accordingly, the claimant did not suffer a detriment in terms of the specification of indirect discrimination under Article 3(2)(b) of the 1976 Order. Therefore there cannot be a claim for indirect discrimination arising. The claimant’s central argument upon the facts is that, as all candidates who applied were interviewed for the post and a scoring exercise was conducted, the respondent should have awarded him higher marks in the scoring process. His failure to secure the post on account of the scoring accorded to him is the identified detriment which the claimant then links to his assertion of unlawful discrimination on grounds of his gender. This is a claim in respect of direct sex discrimination.
The relevant findings of fact
8. (1) The claimant holds a degree in accounting and a degree in mathematics. He also holds a PGCE from 1974; this was recognised by the Department of Education for Northern Ireland as at 20 April 2004. The Principal of the respondent school at the material time (2005) was Sr Ursula Canavan. Sr Canavan has had a lengthy association with the respondent school and she retired some four years ago. That retirement was after the events that concern this tribunal. Ms Claire Miskelly was at the time, and is understood still to be, the respondent’s Special Educational Needs Co-ordinator (commonly known as SENCO) having been a teacher in the respondent school since 1995 and SENCO since 2001.
(2) On 21 April 2005 the respondent advertised for the post of classroom assistant to be located at the respondent’s school premises at Kingsway, Finaghy, Belfast. The post advertised was created to provide for assistance to a child who was due to join the school in September 2005. That child had a Statement of Special Educational Needs and indications of Asperger’s Syndrome. The recruitment method used by the respondent was to place a press advertisement for the post, with the description, “Classroom Assistant (full time, initially for one year)”. Interested parties were then required to apply for and to complete an application form, which form was to be returned by 4 May 2005. With the application form was sent out a document which provided details including a school profile, details of the special educational needs policy of the school and of the subject pupil, an outline of the post, a job profile, a candidate profile and other relevant information. Applicants were required to complete an application form specifying personal and educational details and qualifications, employment or work experience and other relevant information, in support of the application.
(3) In response to the foregoing, the respondent received applications from seven persons, six females and the claimant being the only male applicant. Upon receipt, Ms Miskelly conducted an initial review of the application forms received. She prepared a matrix including names of candidates, educational experience with children, Special Educational Needs or “SEN” specific experience, Asperger’s Spectrum Disorder or “ASD” specific experience, a marking in respect of the applications and a provisional ranking order in regard to the candidates for the post.
(4) Questions for the interviews had at some time earlier been prepared. Ms Miskelly, in a handwritten note dated 16 May (2005) addressed to the school Principal, Sr Canavan, enclosed a copy of her marking of the application forms. Ms Miskelly also mentioned in her note to Sr Canavan, in regard to the proposed interview questions, “I have reconsidered the 1st question. I hope you don’t mind. I thought it more appropriate to establish the applicants ASD experience. If this new question is not suitable we can remove it”.
(5) The first question had been, as the tribunal understands it, “Can you tell the panel about your experience working with children in an educational environment?” After Ms Miskelly’s revision the first question read, “Can you tell the panel about your experience working with children with Asperger’s Syndrome in an educational environment?” Sr Canavan concurred with the reformulation of the first question and a model answer sheet was prepared incorporating that question and the other five questions to be put to the candidates and also including suggesting model answers or information to be elicited from the candidates. Also prepared was an interview assessment sheet permitting the interviewers to record comments and scoring of the responses to the six interview questions, At the foot of the interview assessment sheet there was space for the interviewers to record comments and scoring regarding the categories, “Personal Presentation and Communication Skills” and “Application Form”.
(6) All of the applicants, including the claimant, were considered to be suitable to be interviewed and all were interviewed on 20 May 2005. The interview panel consisted of Sr Canavan, Ms Miskelly and Mr Eamon Hamill who was the school Bursar.
(7) The interview questions were:
(1) Can you tell the panel about your experience working with children with Asperger’s Syndrome in an educational environment?
(2) What qualities and skills would you bring to this position?
(3) What in your opinion are the main differences between a general classroom assistant and a special needs assistant?
(4) The child joining Rathmore in September has not had a classroom assistant whilst in Primary School. How would you deal with that situation?
(5) What do you understand by the term Asperger’s Syndrome and how would you go about dealing with a child with Asperger’s?
(6) In some cases a child with Asperger’s Syndrome can become quite isolated from their peers. How would you deal with a situation where the child has become withdrawn and isolated?
(8) Each of the three interviewers marked each candidate for the six questions and also in respect of the two additional issues, “Personal Presentation and Communication Skills” and “Application Form”. The maximum scoring in each category was 10 marks, thus that was a total of 80 marks. The three interviewers marked each candidate individually. The interview assessment sheets were dated and signed by each interviewer and the marks were totalled.
(9) The successful candidate (Mrs McVeigh) secured scores, respectively, from the interviewers as follows: Sr Canavan - 77 marks, Mr Hamill - 73 marks and Ms Miskelly - 73 marks, being a total of 223 out of a possible maximum of 240 marks. The claimant secured, respectively, from the interviewers as follows: Sr Canavan - 17 marks, Mr Hamill - 16 marks and Ms Miskelly – 24, being a total of 57 marks. That latter total scoring was by a considerable margin the lowest scoring of all of the seven candidates and was less than one quarter of the total scoring for the successful candidate (McVeigh). The marking scores for the other five candidates, in ranking order, were as follows: Ranking Two (McKeever) - Sr Canavan - 67 marks, Mr Hamill - 58 marks and Ms Miskelly - 62 marks, being a total of 187 marks; Ranking Three (Marsh) - Sr Canavan - 48 marks, Mr Hamill - 52 marks and Ms Miskelly - 45 marks, being a total of 145 marks; Ranking Four (Mongey) - Sr Canavan - 53 marks, Mr Hamill - 42 marks and Ms Miskelly - 45 marks, being a total of 140 marks; Ranking Five (McMahon) - Sr Canavan - 48 marks, Mr Hamill - 28 marks and Ms Miskelly - 42 marks, being a total of 118 marks; Ranking Six (Lavery) - Sr Canavan - 36 marks, Mr Hamill - 31 marks and Ms Miskelly - 37 marks, being a total of 104 marks.
(10) In relation to the scoring, it seems that the interviewers were guided by the content of the model answer sheet incorporating the questions to be put to the candidates with suggested answers or information to be elicited from the candidates. To give examples of this, in answer to the second question, which question read, “What qualities and skills would you bring to this position”? the respondent was looking for the qualities of, “Enthusiasm, Personality, Commitment, Sensitive attitude towards child, Ability to integrate SEN child, Ability to work under guidance of teacher, Confidentiality and Imagination”. The skills sought in this category were, “Teamwork and co-operation, ICT Skills, Relevant courses related to SEN and Asperger’s Syndrome, Communication, Decision Making, Ability to implement Education Plans, Make an impact discreetly, and Share information with class teacher and SENCO”. To take another example, in respect of the fifth question which was, “ What do you understand by the term Asperger’s Syndrome and how would you go about dealing with a child with Asperger's”? the candidate was expected to have some degree of comprehension of the Syndrome itself and of strategies for dealing with communication and behavioural issues and the specific needs of the child. Accordingly the nature and quality of the responses provided by each candidate to the questions put to each by the panel members appears to have been key to the scoring afforded in each of the first six matters when seen in the context of the model responses anticipated. In regard to the latter two categories, “Personal Presentation and Communication Skills” and “Application Form”, the scoring was linked to a personal assessment conducted by each interviewer concerning these factors, including, as was explained by both the respondent’s witnesses, how well the candidates had completed their individual application forms in specific reference to the document sent out to each applicant which provided details of the school profile and the special educational needs policy of the school, of the subject pupil, the outline of the post, job profile, candidate profile and other relevant information.
(11) Regrettably the interviewer, Mr Hamill, was unable to be present as a witness on account of serious long-term illness. In regard to the evidence proved by the other two interviewers, Sr Canavan and Ms Miskelly, the tribunal generally accepted that the witnesses were credible and consistent in giving their evidence as best as might be expected or possible in regard to matters that had indeed occurred a very considerable time before.
(12) The claimant’s case includes the assertion that the scoring of the interview panel members was affected and was influenced by gender bias and that he was scored by the interviewers in a manner that was tainted by sex discrimination. The claimant asserts that there was no proper recognition afforded to the fact that he held the professional qualifications mentioned (a PGCE from 1974 recognised by the Department of Education for Northern Ireland as of 20 April 2004). It was clear from the evidence of the respondent's witnesses that there were no specific technical educational qualifications requiring to have been attained in order to secure the post. The interviewers were, rather, looking for a candidate who had a genuine insight into the nature of the post and who possessed the personal qualities and skills and the learned experience needed adequately to perform in the post.
(13) In respect of the matter of comparison for the purposes of application of the material law, the claimant appeared reluctant to confine his case to the successful candidate as being a specific comparator. He endeavoured to argue that all of the candidates were comparators for the purposes of unlawful discrimination. He failed to demonstrate to the tribunal the relevance of all of the candidates for the post as comparators in that the detriment of which he complained in regard to the direct discrimination was his failure to be appointed to the post in comparison to the outcome for the successful candidate who was appointed. He also persistently endeavoured to introduce issues and matters that did not bear specifically upon the claimant’s claim of direct sex discrimination. In the light of the observations of the Court of Appeal, per Girvan LJ, in James Robert Peifer v (1) Castlederg High School and (2) Western Education and Library Board [2008] NICA 49, the tribunal, not without some difficulty, endeavoured on a number of occasions to bring the claimant’s proper focus back again to the requirements of proving unlawful direct sex discrimination with specific reference to comparison of the essential facts of his case with those of an appropriate comparator or comparators. The tribunal, in the management of the case, encountered considerable difficulty in that respect. The claimant persistently appeared to disregard the tribunal’s endeavours to direct his focus and attention appropriately. The tribunal explained to the claimant, to the extent required, the significance to the potential outcome of the matter in his advancing any case in regard to comparative detriment or advantage as alleged and the true cause or reason for any such. Having applied the tribunal’s best endeavours in that regard, the tribunal notes the facts emerging from the evidence in respect of the successful candidate. The tribunal also scrutinised the factual material insofar as there might have existed any merit in the claimant’s endeavour to suggest that all other candidates were potential comparators. In this case there were no short-listing criteria, all candidates were interviewed and were subject to scoring by the panel members; the top-ranked candidate secured the post and there was no reserve list arrangement. The claimant, together with the other lower-ranked candidates, six in number, was unsuccessful and he was not appointed. The claimant was the lowest-ranked in the scoring of all of the seven candidates in the competition.
The Relevant Statutory Provisions and Legal Principles
9. The relevant statutory provisions in regard to the unlawful sex discrimination asserted by the claimant are contained in the Sex Discrimination (Northern Ireland) Order 1976, as amended (“the 1976 Order”). The claimant requested the tribunal to indicate in its determination the statutory provisions which specifically applied and whether these were those statutory provisions in force at the time of the alleged unlawful discrimination (this being May 2005) or amending provisions which came into force thereafter. In submissions, the respondent's representative submitted that the applicable statutory provisions were those which prevailed at the time of the alleged discrimination. The tribunal's determination accords were that latter submission on the part of the respondent's representatives. The applicable statutory provisions in this matter are those provisions which were in force at the time of the alleged unlawful discrimination, at May 2005. It is those statutory provisions accordingly which are mentioned below.
Article 3 of the 1976 Order (as regards direct sex discrimination) provides as follows: -
“Direct ….. 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,…”
Article 4 of the 1976 Order provides that provisions relating to sex discrimination against women apply equally to the treatment of men. Article 7 of the 1976 Order provides 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.
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.”
Article 8 of the 1976 Order 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.”
10. The law in respect of burden of proof in discrimination cases is what could be appropriately described as "well trodden ground" and it has been subject to recitation and to comment in a considerable volume of tribunal decisions and in the judgments of the superior courts. The Court of Appeal in England & Wales in Igen v Wong [2005] IRLR 258, considered statutory provisions expressed in similar terms to those prevailing in this jurisdiction (and any references in the extract set out below are to be taken as parallel and equivalent to the statutory provisions applying in this jurisdiction). The Court of Appeal essentially approved, with only minor amendment, the guidelines expressed in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332. Igen v Wong provides: -
(1) Pursuant to S63A of the SDA, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of Section 41 or Section 42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as ‘such facts’.
(2) If the claimant does not prove such facts he or she will fail.
(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that ‘he or she would not have fitted in’.
(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome of this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.
(5) It is important to note the word ‘could’ in S63A(2). At this stage the tribunal does not have to reach a definitive conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.
(6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.
(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with S74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or other questions that fall within S74(2) of the SDA.
(8) Likewise, the tribunal must decide whether any provision of any relevant Code of Practice is relevant, and if so, take it into account in determining, such facts pursuant to S56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant Code of Practice.
(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the grounds of sex, then the burden of proof moves to the respondent.
(10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.
(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since ‘no discrimination whatsoever’ is compatible with the Burden of Proof Directive.
(12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which inferences can be drawn, but further that it has adequately discharged the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.
(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge the burden of proof. In particular, the tribunal will need to examine carefully explanations for failing to deal with the question or procedure and/or code of practice.
11. In this jurisdiction the Court of Appeal in Northern Ireland has approved Igen v Wong and the process to be used in relation to the application of the burden of proof. Igen v Wong has been the subject to further Court of Appeal decisions including Madarassy v Nomura International PLC [2007] IRLR 246 and Laing v Manchester City Council [2006] IRLR 748. Both decisions have received approval from the Court of Appeal in Northern Ireland in Arthur v Northern Ireland Housing Executive & Another [2007] NICA 25 and in Nelson v Newry and Mourne District Council [2009] NICA 24. In Madarassy v Nomura International the suggestion was rejected by the Court that the burden of proof will shift to the respondent merely upon the claimant establishing the fact of a difference in status and a difference in treatment of the claimant. As the Court stated: -
“The Court in Igen v Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment 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.”
12. The Northern Ireland Court of Appeal in Nelson v Newry and Mourne District Council, per Girvan LJ, approved Madarassy v Nomura International and Laing v Manchester City Council and endorsed the approach to the effect that the tribunal’s proper focus must be upon the question of whether or not unlawful discrimination may properly be inferred. If the tribunal is satisfied that the reason given by the respondent for any treatment accorded is genuine and does not disclose either conscious or unconscious unlawful discrimination that is the end of the matter. It was specifically observed in Laing that it is not improper for the tribunal to say in effect, “there is a nice question as to whether or not the burden has shifted, but 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 has nothing to do with [race].” This approach has been approved by the Northern Ireland Court of Appeal may be accordingly applied to all unlawful discrimination cases.
13. Lord Nicholls in the House of Lords case of Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] ICR 337 observed that sometimes a less favourable treatment issue cannot be resolved without, at the same time, deciding the “reason why” issue and that the two stage approach of tribunals in considering, firstly, whether the claimant received less favourable treatment than an appropriate comparator and, secondly, whether the less favourable treatment was on a proscribed ground, can often be avoided by concentrating on why the claimant was treated in the manner identified and determining if that was for the proscribed reason or for some other reason. If it was the latter, the application shall fail; if the former, there would normally be no difficulty in deciding whether the less favourable treatment accorded on the proscribed ground was less favourable than was accorded to others. In order to qualify as a ‘detriment’, it was held in Shamoon v Chief Constable of the Royal Ulster Constabulary 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; an unjustified sense of grievance could not amount to a detriment.
Application of the Law and the Findings of Facts to the Issues
14. Dealing firstly with the clearly-identified comparator in this case of direct discrimination, that comparator being the successful candidate who was appointed to the post of classroom assistant, Mrs McVeigh, the claimant has established a difference in gender in that the successful candidate was female and the claimant is male. The claimant also has established a difference in treatment in that the successful candidate was appointed to the post whereas the claimant was not. The tribunal is tasked with establishing the reason for this difference in treatment (the “reason why” issue per Shamoon v Chief Constable of the Royal Ulster Constabulary). The claimant alleges that the reason for this difference in treatment was because he was a male and the successful candidate was female. In support of that allegation the claimant relies on the marking by the interviewers; he asserts that he should have secured higher marks than the successful candidate, thereby resulting in his appointment instead of her. This is the detriment evidently identified by the claimant: his failure to be selected for the post and the fact that a female candidate was selected.
15. Examining the facts and the explanation afforded by the respondent, the tribunal is not persuaded that the ground for the difference in treatment is such as the claimant endeavours to assert. The marks accorded by the three interviewers resulted in the successful candidate’s appointment and in the claimant being the lowest scored of all of the candidates who had applied for the post. The tribunal carefully examined the evidence and conclusions of fact in the case in order to identify, following the approach indicated in the authorities mentioned above, whether or not it might properly be inferred that unlawful discrimination had any part to play in the outcome of the matter. Having done so, the tribunal did not conclude that such an inference might properly be drawn from the facts. In so concluding, the tribunal had regard to the following matters.
16. The members of the interviewing panel, in applying in the scorings, were guided by the content of the model answer sheet incorporating both the questions which were required to be put to the candidates and also suggested answers or information designed to be elicited from the candidates. The tribunal has alluded above to two of the questions put and to the corresponding information sought of the candidates. By this means, the nature and quality of the responses provided by each candidate at interview to the questions constituted an essential factor in the scoring in each of the first six matters (the six questions) in the light of the model responses anticipated. Further to that, in the latter two matters, “Personal Presentation and Communication Skills” and “Application Form”, the scoring applied was linked to an assessment by each interviewer which, whilst subjective, did include an assessment of how well the candidate in each case had completed their individual application forms with specific reference to the information provided with each application form concerning the school profile and special educational needs policy, the subject pupil, the outline of the post, the job profile, the candidate profile and other relevant information. Examining all of the evidence, the tribunal’s conclusion is that there was nothing in that type of assessment or in the manner in which it was conducted by the three interviewers that suggests that the approach taken was in any way unlawfully discriminatory. It is clear from the evidence of the two witnesses that the successful candidate performed excellently at interview. For example Sr Canavan stated, with considerable conviction, that this was one of the best applications she had ever received in the course of her extensive experience of such matters. Ms Miskelly endorsed that evidence. In contrast, Sr Canavan stated that she was “shocked”, as she expressed it, at the claimant's categorisation of the role applied for by him as a “lesser” role to that of a teacher. Sr Canavan appeared to the tribunal to have been quite genuinely dismayed and disappointed at the attitude and performance of the claimant at interview and concerning the claimant's apparent lack of insight into and understanding of the role which he had applied for.
17. Accordingly, the collective views expressed by the interviewers concerning the claimant's application and his performance at interview were that the claimant had displayed a significant lack of comprehension of and insight into the role of classroom assistant. The interviewers detected on the claimant's part a generally inappropriate and unsatisfactory attitude to the application. As mentioned, this had indeed been encapsulated in the claimant's application form were, in answer to the question as to why he was considering a change of employment, the claimant's response was that in the previous year he had not received one day’s work as a supply teacher and that he would gladly take the “lesser” role of (classroom) assistant. The interviewers anticipated that any person applying for and properly interested in the post of classroom assistant would have conducted an appropriate amount of preparation and research in order to enable a competent performance at interview to be demonstrated with a view to maximising the possibly to securing the post. It is clear from the evidence of the two respondent witnesses that the claimant's performance at interview fell very far short of what had been expected and indeed by a large measure fell very far short of other candidates, and especially so the successful candidate. There is no indication that any of this was influenced or affected in any manner by the claimant's gender, either taken in isolation, or in comparison to those who significantly outperformed the claimant in this recruitment exercise.
18. The claimant advanced an additional argument to the effect that the amendment to the first interview question had been designed specifically to disadvantage him in a manner which was unlawfully discriminatory. As mentioned, Ms Miskelly, in her note dated 16 May to Sr Canavan stated that she had reconsidered the first question which had been, so the tribunal understands, “Can you tell the panel about your experience working with children in an educational environment?” and which, after a reformulation which was agreed by Sr Canavan, then read, “Can you tell the panel about your experience working with children with Asperger’s Syndrome in an educational environment?” The claimant, in his argument, drew to the tribunal's attention that he had scored “0” in this category. He appeared to suggest that if he had scored full marks, a “10”, that might in some manner have been determinative of the outcome to the competition in his favour. Firstly, the tribunal's observation in regard to the claimant's argument is that the claimant scoring an additional 10 marks would in no way have been determinative of any other outcome. If he had done so, it would have increased the claimant's score to a figure of 67 marks, whereas the next lowest ranked candidate (the candidate who came second last in the scoring) had indeed scored a total of 104 marks. Furthermore, the tribunal does not accept that there was some manner of an exercise conducted in the amendment of this question in order to exclude the claimant from the possibility of success in this competition in a manner which was unlawfully discriminatory. Nothing accordingly arises from the claimant's contentions in this regard and the tribunal does not accept that anything done thereby was unlawfully discriminatory or gives rise to any possibility of the drawing of an inference of unlawful discrimination.
19. The claimant made much in argument concerning the assertion that a PGCE qualification which he held from 1974 recognised by the Department of Education for Northern Ireland in April 2004 should have secured additional marks and (as he saw it) proper recognition in the process. However the interview panel members were not tasked with specific awarding of additional marks for such a qualification and accordingly this had no bearing on the interview and upon the scoring process and was thus not reflected in the outcome. There was nothing directly discriminatory about the approach taken by the interview panel in that regard; no inferences of unlawful discrimination may properly be derived from this approach.
20. The claimant failed to be appointed on the aggregate scoring by a considerable margin. His final score was 57 marks and that of the successful candidate was 223 marks. This is not suggestive of a panel that was trying to discriminate on the ground of gender. The claimant also raised in argument a comparison of his case with the other candidates. None of these other candidates were appointed. The second-ranked candidate (McKeever) had a total score of 187 marks, again very considerably in excess of what the claimant scored. Insofar as the second ranked candidate has any relevance in regard to the detriment which it is asserted by the claimant to arise on grounds of unlawful discrimination, again this scoring is not suggestive of a panel that was trying to discriminate on the ground of gender in view of the perception on the part of the interviewers of a very impressive application and interview performance by the second-ranked candidate. There is nothing emerging from the facts in the case to suggest that the scoring was manipulated, unduly influenced or infected in some manner by conscious or unconscious bias, on grounds of gender, in such a way as to disadvantage the claimant in comparison to the successful candidate (or indeed, insofar as this might possibly be deemed applicable, in regard to second-ranked candidate or indeed any other candidate). In all the circumstances it seems to the tribunal to be entirely improbable on the facts that the reason for the claimant’s non-appointment was on account of his gender in comparison to the successful candidate (or any other person).
21. Accordingly, as the tribunal is not persuaded that the ground for the difference in treatment received by the claimant relates to his gender, the burden of proof does not pass to the respondents. The claimant has not established the essential ingredients to prove a sex discrimination claim. His claim must therefore fail. As the claimant has not succeeded in the matter of a liability in showing that he suffered unlawful discrimination, it is unnecessary to deal with the matter of remedy. The claimant's claim is accordingly dismissed.
Chairman:
Date and place of hearing: 25, 26, 27 November and 5 December 2013, Belfast.
Date decision recorded in register and issued to parties: