Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 698/15

 

 

 

CLAIMANT: Anne Artt

 

 

RESPONDENT: Mid & East Antrim Borough Council

 

 

 

DECISION

The unanimous decision of the tribunal is that the claims of indirect sex discrimination and of unfair dismissal are dismissed.

 

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Mrs K McCrudden

Mr C McIlwaine

 

Appearances:

The claimant was represented by Ms S Bradley, Barrister-at-Law, instructed by Equality Commission for Northern Ireland.

The respondent was represented by Mr T Warnock, Barrister-at-Law, instructed by Worthingtons, Solicitors.

 

Background

 

1. Following local government re-organisation, the respondent is the local government body which has incorporated Ballymena Borough Council. The claimant had been originally employed by Ballymena Borough Council. This decision will refer simply to the respondent.

 

2. The claimant had been employed on a part-time basis for 22 ¹/ ₂ hours per week by the respondent as a project manager. Her contract of employment was for a fixed-term from 2 July 2012 until 30 September 2014. Her contract was extended on one occasion until 31 December 2014. Her contract of employment terminated at that point and she was paid statutory redundancy compensation. She was not given alternative employment.

 

3. The claimant alleged that she had been unfairly dismissed and that the respondent had indirectly discriminated against her on grounds of gender because of concerns that she would wish to work part-time or in a job share arrangement.

 

4. There was no claim of either part-time worker discrimination or fixed-term worker discrimination.

 

Hearing

 

5. The hearing was for five days from 9 - 13 November 2015.

 

6. The witness statement procedure was used. Witness statements were exchanged in advance by the parties, according to directions issued by the tribunal. At the hearing, each witness in turn swore or affirmed to tell the truth, adopted their witness statement as their entire evidence-in-chief, and moved immediately into cross-examination and brief re-examination.

 

7. The claimant gave evidence on her own behalf. She called no other witnesses to support her claims.

 

8. Diane Moorehead, the HR Manager at the relevant time, Sean Trainor, the Economic and Tourism Development Manager, Aidan Donnelly, the Director of Economic, Community Services and European Programmes at the relevant time, and Mary Penny, a HR Adviser at the relevant time, gave evidence on behalf of the respondent.

 

9. The parties were directed to lodge written submissions by 20 November 2015. The tribunal met on 26 November 2015 to consider the evidence and those submissions and to reach a decision. This is that decision.

 

Relevant law

 

Indirect sex discrimination




10. Article 3(2) of the Sex Discrimination (Northern Ireland) Order 1976 provides that indirect sex discrimination occurs where an employer in relation to an employee:-

 

"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 to men;

 

(ii) which puts her at a disadvantage; and

 

(iii) which he cannot show to be a proportionate means of achieving a legitimate aim."

 

11. Article 63A of the 1976 Order (as amended) sets out the legislation in relation to the burden of proof in sex discrimination cases. It provides as follows:-

 

"63A (1) This Article applies to any complaint presented under Article 63 to an Industrial Tribunal.

 

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

 

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

 

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

 

the tribunal should 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".

 

Unfair dismissal/Selection for Redundancy

 

12. Article 130(1) of the Employment Rights (Northern Ireland) Order 1996 provides:-

 

"In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -

 

(a) the reason (or if more than one, the principal reason (for the dismissal; and

 

(b) that it is either a reason falling within Paragraph (2); or

 

... ."

 

Article 130(2) of the 1996 Order provides:-

 

"A reason falls within this paragraph if it -

 

...

 

(c) is that the employee was redundant;

 

... ."

 

13. In Polkey v AD Dayton Services Ltd [1988] ICR 142, Lord Bridge stated:-

 

"In a case of redundancy, the employer will normally not act reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis in which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation."

 

14. In Langston v Cranfield University [1988] IRLR 172 stated:-

 

"Where an applicant complains of unfair dismissal by reason of redundancy we think that it is implicit in that claim, absent agreement to the contrary between the parties, that the unfairness incorporates unfair selection, lack of consultation and failure to seek alternative employment on the part of the employer."

 

15. In Mugford v Midland Bank [1997] IRLR 208, the EAT stated:-

 

"It will be a question of fact and degree for the tribunal to consider whether consultation with the individual and/or his union was so inadequate as to render the dismissal unfair. A lack of consultation in any particular respect will not automatically lead to that result. The overall picture must be viewed by the tribunal up to the date of termination to ascertain whether the employer has or has not acted reasonably in dismissing the employee."

 

16. Under the 1996 Order, as amended by the Employment (Northern Ireland) Order 2003, a dismissal (including the termination of a fixed-term contract) will be automatically unfair if a three step statutory procedure is not followed by the employer. That, in summary, is writing to the employee with the grounds of potential dismissal, holding a meeting with the employee and reaching a decision, and holding an appeal.

 

Relevant findings of fact

 

17. The claimant had been engaged by the respondent as a project manager for the Rivers Project. This Project, insofar as the claimant was concerned, involved the upgrading of facilities near the river passing through Ballymena, including the provision of jetties. It was dependent on EU funding. At the request of the claimant, her hours had been reduced and latterly the claimant worked 22 ¹/ ₂ hours per week. It was a fixed-term contract originally due to expire on 30 September 2014.

 

18. The marketing element of this post was relatively small; some 20% to 30%. The SEUPB channelled the funding for this post and it required the use of its logo on all relevant correspondence and documentation. Apart from that particular issue, which was purely clerical in nature, marketing was an issue which only had relevance towards the end of the Project and involved the marketing of completed facilities, such as jetties on the river. Before that point, there had been nothing to market. The Project, including that part managed by the claimant, was primarily concerned with the building of facilities for tourism. It was a cross-border project covering five locations, including Ballymena. The bulk of the budget had been for capital build with only £40,000.00 allocated to a marketing budget.

 

19. Two advertising and PR agencies were appointed to devise the marketing strategy and to implement it on behalf of the Project. While the claimant drafted press releases, her involvement in the devising of the marketing strategy and in its implementation was relatively small and, as indicated, with the exception of the use of the SEUPB logo, took place entirely towards the end of the Project. The two external agencies had been engaged at that point.

 

The post occupied by the claimant was primarily focused on the management of capital expenditure. It provided very limited marketing experience.

 

20. There was a meeting on 28 August 2014 between the claimant and Ms Moorehead in the run-up to the expected termination of the claimant's fixed-term contract on 30 September 2014. Ms Moorehead stated, during that meeting, that when the funding ended for the post, the post would also end. The necessity for EU funding for the continuation of the post had been obvious and was not in dispute. Ms Moorehead's statement was therefore unremarkable.

 

21. The claimant argued that the failure on the part of the respondent to formally minute all meetings and to copy those minutes for agreement was in some way a significant failure on the part of the respondent. The tribunal cannot agree. Meetings occur all the time in the context of employment and if each such meeting were to be formally minuted and if such formal minutes were to be first circulated for agreement and then for the discussion of amendments, the system of ordinary interchange between employees would grind to a halt. It is also notable that the claimant did not at the time of the meeting, or immediately thereafter, request a formal set of minutes. She did not compile her own contemporaneous note.

 

22. In any event, Ms Moorehead recorded a note of this meeting for her own file. That note stated that Ms Moorehead had told the claimant in this meeting on 28 August 2014 that an individual meeting would be arranged later with the claimant to deal with her concerns and to consider other alternatives; in effect, to consider whether suitable alternative employment was available for the claimant. Ms Moorehead was clear in evidence that this note had been prepared by her shortly after the meeting on 28 August 2014 and that it was accurate. As indicated above, it was not sent to the claimant for agreement as a formal minute. Equally, a formal minute was not asked for, after the meeting, by the claimant and the claimant has not produced any contemporaneous note of her own. If formal minutes had been the practice within the respondent organisation, they would have been asked for by the claimant at that point. The note recorded by Ms Moorehead was released in the normal way on discovery as part of this litigation.

 

23. In evidence, the claimant asserted to the tribunal that there had been no mention of the consideration of suitable alternative employment or of the consideration of other opportunities in the course of the meeting on 28 August 2014. Further, she alleged that the note of the meeting had been deliberately fabricated by Ms Moorehead to give a false impression for the purposes of this litigation.

 

24. This allegation of deliberate fabrication of notes was a consistent feature of the claimant's case. The only evidence put forward by the claimant in this respect was her unsupported assertion that, whatever had been recorded, as having been said, had not been said. Apart from her own evidence, she simply pointed out that the documents had not been released by the respondent until the discovery process. The tribunal notes that it has not been referred to any prior request by or on behalf of the claimant for the release of these documents. Furthermore, it is noted that this allegation was not pursued in the written submissions.

 

25. This allegation, which was repeated throughout the hearing in relation to various notes, is of the utmost seriousness. In terms, the claimant is accusing employees of the respondent of fabricating documents to support the respondent's position in this litigation. The claimant accuses those witnesses of a conspiracy to pervert the course of justice. The tribunal ensured that the respondent's witnesses in these circumstances were cautioned in relation to the evidence they might give in cross-examination.

 

26. The tribunal can see no reason why Ms Moorehead, and indeed other witnesses for the respondent would have fabricated notes in the manner alleged by the claimant. If the claimant were to be correct in her accusation, the respondent's witnesses would have had to either have spontaneously and individually produced consistent documentation as a deliberate fabrication or forgery, or to have consciously colluded together in the production of such fabricated documentation. It is difficult to see why any of the respondent's witnesses would have done this; either singly or jointly. There would have been no financial or other gain to those witnesses in doing so; and they would have committed a serious criminal offence. The fabricated documentation would, in any event, have provided, at best, marginal assistance to the respondent's case. Furthermore, some of the allegedly forged or fabricated parts of the documents are consistent with events which post-dated those documents.

 

27. Turning back to the particular note of the meeting on 28 August 2014, the tribunal has listened carefully to the evidence of the claimant and to that of Ms Moorehead. The tribunal is content that the note was prepared shortly after the meeting by Ms Moorehead and that it was entirely accurate. Even on the claimant's own case to this tribunal, discussion and indeed detailed discussion of alternative employment followed the meeting of 28 August 2014. It is highly improbable that that discussion would not have first been raised in the course of the meeting on 28 August 2014. It is even more highly improbable that Ms Moorehead would have engaged in the fabrication of documents for the purposes of this litigation and yet more highly improbable that she would have done so with no benefit to either herself and little discernible benefit to the respondent in doing so.

 

28. It is regrettable that allegations of this nature were casually and repeatedly made in a public hearing on the basis of no credible evidence and particularly since they were not carried through to the claimant's written submissions.

 

29. A further meeting was held on 8 September 2014. Mr Aidan Donnelly and Ms Moorehead met nine fixed-term workers (all female), including the claimant who were similarly affected by the ending of the EU funding. Another note was recorded of this meeting by Ms Moorehead. It stated, inter alia, that the fixed-term employees had been assured that the respondent would meet with them to discuss alternative employment. That assurance was recorded at two separate points in the note. Again the claimant alleged that no such assurance had been given.

 

30. After considering the evidence of the claimant, that of Mr Donnelly and that of Ms Moorehead, the tribunal concludes that the note was accurate. There would have been little point in Mr Donnelly and Ms Moorehead holding a joint meeting just to tell the nine employees what they already knew; that when funds supporting their fixed-term posts ran out, they faced redundancy and that in those circumstances, statutory redundancy compensation would be paid. As pointed out above, detailed discussion of suitable alternative employment followed shortly in relation to the claimant and it is also obvious that similar discussion followed in relation to the other fixed-term employees. Four of those fixed-term employees were redeployed to like-for-like posts. It is simply not credible that this process of seeking suitable alternative employment was not mentioned as part of this group meeting on 8 September 2014 and equally not credible that, with no personal financial advantage and with, at best, a marginal advantage to the respondent in the litigation, the note had been falsified, necessarily at a much later date, for the purposes of the discovery exercise. Again, this was a very serious allegation advanced on behalf of the claimant, with no credible basis.

 

31. A further meeting was held between the claimant and Ms Moorehead on 11 September 2014. At that meeting the claimant outlined her experience. The claimant alleges, before this tribunal, that at that meeting she had discussed her experience in detail. This seems unlikely in the context of this meeting. There would have been no need to have done so where this was a meeting at a relatively early stage where the discussion of potential alternative employment was on a general level. Ms Moorehead was not in a position to personally allocate any of these posts and a detailed discussion of experience at that meeting would have been pointless. The tribunal therefore concludes that it is much more likely that any discussion entered into by the claimant at this stage in relation to her experience was at a relatively general level.

 

32. The tribunal also notes that this meeting occurred shortly after the two meetings referred to above. The claimant has alleged that notes had been fabricated to support a false proposition that alternative employment had been mentioned at those two earlier meetings. Again, the tribunal can see no logical reason why suitable alternative employment would not have been mentioned on both 28 August 2014 and 8 September 2014 as part of the normal course of events and then taken into further detail shortly thereafter on 11 September 2014. The claimant's proposition would require, not just that documents had been forged for no apparent purpose, but that the discussion of suitable alternative employment had somehow emerged spontaneously at some point immediately before 11 September 2014. It is difficult to understand how the claimant believes that this could have been the case.

 

33. In any event, the claimant again disagrees with the note prepared by Ms Moorehead of this meeting. The claimant alleges, inter alia, that she had not been told at that meeting that there had been any restriction on her redeployment to a higher grade. Ms Moorehead was quite clear in her cross-examination that the claimant would have been told that consideration would ordinarily be given in a redeployment situation to posts one grade below, or one grade above, the relevant employee's current grade. That in itself seems to the tribunal to be a relatively generous position for the respondent to have adopted. Many employers would restrict consideration of redeployment to posts at the employee's own grade or to posts below that grade; but not to any post at any level above that grade. The claimant's position on this point, in any event, is illogical. There seems to be no reason why the claimant would have been effectively given carte blanche for a substantial promotion as part of a redeployment exercise. Furthermore, the claimant's allegation seems to have no obvious connection to a claim of unfair dismissal or of indirect sex discrimination. It is unclear why the claimant would make this allegation or indeed why it would be maintained on her behalf. However, the tribunal concludes that it is untrue. It is highly improbable that higher grade posts would have been considered as part of a redeployment process beyond the respondent's stated position of posts one grade above the employee's current post.

 

34. Ms Moorehead had mentioned one particular post where at that point she had been unsure of the precise grade. That post turned to be two grades higher than the claimant's grade as Project Manager. The tribunal is content that this was an honest error made by Ms Moorehead in the context of seeking suitable alternative employment for the claimant and indeed for other employees in the same position. It is simply not credible, as the claimant apparently argues, that this was anything other than a simple mistake of no particular importance. Again, it is difficult to understand the relevance of this point to claims of unfair dismissal and indirect sex discrimination.

 

35. On 15 September 2014, Ms Moorehead wrote to the claimant confirming the contents of that discussion on 11 September 2014. It is clear that this letter simply recorded that discussion. That is the way it was worded and the tribunal is content with Ms Moorehead's evidence in that regard. The claimant again made significant mention in the course of the hearing of the repetition in that letter of the mistake made at the meeting in relation to the higher grade post. However that, as a summary of what had been discussed, was entirely in order. It is difficult to see what point the claimant was trying to advance in this respect or how it could in any way have assisted either her claim of unfair dismissal or her claim of indirect sex discrimination.

 

36. A further meeting took place between the claimant and Ms Moorehead on 17 September 2014, some two days after that letter. There was a further discussion of five posts. One was the higher grade post discussed at the earlier meeting. It was made clear to the claimant that this was at a higher grade level and that it could not be regarded as suitable alternative employment. That was not; and apparently is not, disputed by the claimant. As indicated above, it is entirely unclear what point the claimant was seeking to make about the mistaken mention of that post some six days earlier.

 

One other post was no longer available and that was made plain to the claimant. Another post was dismissed by the claimant as being only temporary. Another post was with the new Council and the claimant confirmed that she had put her name forward for consideration. The final post remaining out of the five was maternity cover for a marketing officer post. That is a post which will feature in the ensuring parts of this decision. That post had, at that point, been offered to an agency worker. The substantive post holder, a Ms McEldowney, had been employed on a four day per week basis. The maternity cover post offered to the agency worker was on a full-time basis. The relevant line manager, ie Mr Sean Trainor, had to be contacted before that offer to the agency worker could be withdrawn.

 

37. The marketing officer post was not EU funded and was related to the town centre environment and to tourism facilities. It did not, as asserted by the claimant in her written submissions, fall ' within the European Programmes Directorate of the Council'. The relevant Directorate was the Directorate of Economic, Community Services and European Programmes. It would not have fallen within the European Programmes part of that Directorate.

 

The post required the building of relationships, particularly with the retail sector in the town centre where disruption and frustration would be caused by ongoing capital work. The line manager, Mr Trainor, had had previously had difficulty with a job share in a post which required continuity in dealing with stakeholders. The two job sharers had different approaches. One had been favoured by stakeholders over the other.

 

38. Ms Moorehead met the claimant again on 18 September 2014, ie on the next day. Ms Moorehead informed the claimant that the project officer post in which the claimant had expressed some interest would expire in December 2014; the claimant was therefore not interested in that post. Ms Moorehead and the claimant concluded that the marketing officer post, referred to above, was the only real option left at that stage. Ms Moorehead confirmed that the offer to the agency worker had been withdrawn because the agency worker might not be needed. It is clear that the marketing officer post was not offered to the claimant at this point. It remained a possibility only. It was on that basis that the offer was withdrawn to the agency worker until that possibility had been considered and resolved.

 

39. Ms Moorehead prepared another note for her file of this discussion. Again the claimant disagreed with part of that note. The note stated that the claimant had been told that if the claimant's existing fixed-term contract, due to expire shortly thereafter on 30 September 2014, were to be extended with the provision of additional funding, the process, ie the process of considering suitable alternative employment, would have to start again. The claimant asserted that this had never been said in the course of this meeting. Again the tribunal, after considering the evidence of Ms Moorehead and that of the claimant, unanimously concludes that the evidence of Ms Moorehead is correct. There is no reason why such a statement would not have been said. It was no more than a statement of the obvious. At that point, on 18 September 2014, no suitable alternative post had been offered to the claimant. One potential post had been identified. Consideration of suitable alternative employment was at an early stage. If the claimant's existing fixed-term post were to be extended and therefore if the potential redundancy of the claimant were to be delayed, it is logical that the process of considering suitable alternative employment would have to start again.

 

40. Nothing concrete had happened at that point. If there had been a delay of some months, the possibility of suitable alternative employment would necessarily have to be re-considered. The availability of posts would have altered; the position of other employees would have altered; the scope for redeployment would have altered. It would have been an entirely different scenario. There is no reason why such an obvious statement would not have been made and again absolutely no reason why Ms Moorehead would have lied about it and fabricated a document to support any such lie.

 

41. The claimant's existing fixed-term contract was extended to the end of December 2014 on the provision of additional EU funding. The claimant was advised of this later on 18 September 2014. Where the possibility of additional funding had clearly been under review and where that possibility had clearly been in everybody's mind, it is absolutely unsurprising that a remark such as the remark recorded by Ms Moorehead would have been made. It is completely incomprehensible why the claimant alleges that this was a deliberate falsification to the advantage of the respondent. Apart from the fact that such falsification is in itself highly improbable, there was no obvious advantage to the respondent. The claimant accepted in cross-examination that at that date in September the maternity cover for the marketing officer post should have been offered, as it was offered, to the agency worker. There would have been no point in the post being left vacant for three months when the claimant was at that point not available to take it up and may never have taken it up. The maternity cover post, judged at the time, was a short term post, and leaving it vacant for three months of that short term in case the claimant would have become available in December, and would have been judged suitable for it, would have been unreasonable.

 

42. Ms Moorehead went on a short period of annual leave and in her absence, the claimant arranged to meet Mary Penney on 27 October 2014. While the claimant was undoubtedly concerned about the forthcoming termination of her fixed-term contract at the end of December 2014, this meeting was at a point some two months in advance of that date. The tribunal does not understand why at that point the claimant pressed ahead and sought this meeting when she could easily have waited for the return of Ms Moorehead from annual leave. Ms Penney, in any event, told the claimant that there were no other roles available at that point. The claimant was asked why she had not applied for the post of Programme Co-ordinator (Affordable Warmth). The trawl for that post had been circulated among staff, including the claimant. The time for that trawl had passed. Even though the claimant had not applied in time in response to that trawl, she was allowed by the respondent to notify her interest in the normal way. In the event, she was not successful.

 

43. The tribunal concludes that the fact that the respondent allowed the claimant to take part in the trawl exercise, even though she was clearly out of time, is not consistent with her allegations that the respondent had tried in some way and for some reason to exclude her from alternative employment. It would have been easy for the respondent at that point to have simply told the claimant that it was up to her to respond to trawl notices within time and to have left the matter at that point. Instead, it went out of its way to assist the claimant.

 

44. On 24 November 2014, the claimant wrote to Ms Moorehead and asked would it be possible for her to job share in respect of the maternity cover post then occupied on a full-time basis by the agency worker. That agency worker had commenced the post approximately two months earlier. The claimant in her cross-examination before the tribunal on Monday stated clearly that she had not raised the issue of a possible job share with the agency worker. Her position abruptly changed the next day and she stated that she had in fact raised the possibility of a job share with the agency worker but that she had clearly not been interested. The agency worker required full-time employment.

 

The claimant's inconsistency is troubling. She asserted that she thought after making her initial assertion that Mr Warnock would have asked her further questions and that a further explanation would have emerged from her at that point. She appeared to suggest that it was in some way Mr Warnock's fault that there had been a misunderstanding.

 

It also seems clear that the claimant did not mention in her job share application on 24 November 2014 that the agency worker, had been unwilling to job share and that she would only work full-time.

 

45. It seems undisputed that the claimant expressed a preference to work part-time or to job share but equally undisputed that she told the respondent that she was prepared to work full-time. Given that the claimant was facing redundancy and that the claimant and the respondent were at that point considering the possibility of suitable alternative employment in a difficult labour market, that seems entirely reasonable. It is highly unlikely that the claimant had insisted, for some reason, solely on a part-time job or job share arrangement and had then pursued what was clearly expressed to be a full-time post all the way to a formal interview. She applied for that post as a full-time post. She was willing to work full-time as an alternative to redundancy and the respondent knew and accepted this position.

 

46. On 27 November 2014, Ms Moorehead met Mr Trainor. He was the line manager of the marketing officer post and was the correct person to consult in relation to the maternity cover post. She informed Mr Trainor that she was managing a potential redundancy situation and that she might have someone who was interested in the maternity cover post but that that person wanted to job share if possible. Mr Trainor pointed out that a lot of time had at that stage been invested in the agency worker. At that point it is beyond dispute that the agency worker had been employed for two months in the post and that the post was a short term post. Mr Trainor was also concerned that the nature of the job required consistency. It involved building relationships and required flexibility. The out of hours requirement varied. As indicated above, the substantive post holder had been absent on maternity leave for almost three months at that point and the agency worker had replaced her for two months. There had already been significant changes in staff at that stage.

 

47. Mr Trainor was concerned about a part-time employee being able to fulfil the responsibilities of that post. He had received approval from the Senior Management Team for full-time hours for the maternity cover during the absence of the substantive post holder on maternity leave the full-time nature of the maternity leave cover, had therefore been the subject of some particular consideration at that stage. On her return from maternity leave the substantive post holder would revert to four days per week,

 

48. The tribunal is content that the marketing officer experience of the claimant was not discussed at this meeting on 27 November 2014 between Ms Moorehead and Mr Trainor. There would have been no reason to do so in the context of a short meeting where the primary focus was on the part-time or job share preference put forward by the claimant.

 

49. Two meetings took place on 2 December 2014; one was in the morning and one was in the afternoon.

 

50. In the morning meeting, Ms Moorehead met the claimant again. She again prepared a note of the meeting. Again the claimant alleges that certain parts of that note were wrong and that they had been concocted to assist the respondent. Again the claimant had taken no note of her own.

 

For example, the note recorded that the claimant said early in this meeting that part-time work was all that she would consider rather than to commit to full-time hours and then to request part-time hours further down the line. The claimant claimed that this had not been said. The note also recorded that the claimant when told that the maternity leave cover for marketing officer was a full-time post stated that she could not turn things down.

 

Having listened to the evidence of both Ms Moorehead and the claimant, the tribunal unanimously concludes that the note is an accurate reflection of the meeting. The claimant had initially expressed her preference for part-time work or a job share and had expressed her reluctance to take full-time hours. However when the view of Mr Trainor was explained, in relation to the only post then on the table, the claimant took the sensible view that she had been in no position to turn things down. The note of the meeting was entirely consistent with what appears to have been the case; an employee facing redundancy at the end of the month expressed a wish for part-time hours but when it was plain to her that the only post then on offer was a full-time post, she adopted the entirely logical position that she was not about to turn that post down. There is absolutely no reason that this note would have been falsified as alleged by the claimant.

 

51. In the afternoon meeting, the claimant met Mr Trainor and Ms Moorehead. Again Ms Moorehead took a note. That note summarised the meeting which had taken place during the morning and, in particular, stated that having been told that the post was full-time the claimant had said that she was not in a position to turn posts down.

 

52. Having looked at this note and after having considered evidence of the claimant, that of Ms Moorehead and that of Mr Trainor, the tribunal concludes that the claimant had discussed her experience in relation to marketing but that that discussion had been at a relatively high level without a great deal of detail.

 

53. The claimant's main objection to this meeting, before the tribunal, was that she had not been prepared for a discussion of her suitability for the marketing officer post. This meeting, in the afternoon of 2 December 2014, had been a pre-arranged meeting with the relevant line manager in the context of the consideration of suitable alternative employment. There was a deadline of the end of that month. It seems scarcely credible that the claimant did not realise in advance of that meeting that her suitability for that post would have been discussed at the meeting. It is difficult to understand what the claimant felt would have been discussed at that meeting other than her potential suitability for that post. She cannot realistically have thought that the meeting was going to be no more than a formality to offer her the post. However that appears to have been the case. The tribunal accepts that, during the afternoon meeting, she said " I don't understand why you can't just give me the job".

 

54. In any event, at this meeting, the claimant accepts that she became ' stressed' and ' upset'. Ms Moorehead and Mr Trainor state that she became aggressive. The meeting did not end well. Given what appears to have been a totally irrational belief on the part of the claimant that her suitability for this post and her experience in marketing would not, for some reason, have been discussed in the course of the meeting, the tribunal concludes that she reacted badly to questions put to her about her suitability and her experience. Ms Moorehead and Mr Trainor stated that the claimant had demanded any job. The claimant alleges that she simply asked Ms Moorehead to look for other posts.

 

As pointed out above, it is difficult for the tribunal to understand what the claimant had expected to take place in the course of this meeting. However, having considered her evidence, that of Ms Moorehead and that of Mr Trainor the tribunal unanimously concludes that the note is an accurate reflection of that meeting.

 

55. In the course of that meeting the claimant had been advised when she raised the fact that Mrs McEldowney had been a part-time worker, that they were not filling Mrs McEldowney's post as such; they were filling the temporary maternity cover post which had been specifically approved at five days' full-time working because of additional work which required to be carried out. The note also recorded that the claimant had stated that 20% of the council's jobs were carried out by agency staff and that one of them could be given to her to work on a part-time basis. The note recorded that she had been told that 20% was not accurate and that, in any event, the majority of those jobs were at a lower salary level. As was repeatedly the case in this matter, the claimant alleged that this note was not accurate and that the statement had simply not been made. There appears to be no reason why these remarks would not have been made. This meeting was to discuss the claimant's suitability, for maternity cover for a particular marketing officer post. It is not surprising that the claimant would have raised as an issue that the substantive post holder had been a part-time worker. It is equally not surprising that it would have been pointed out to her that funding had been specifically provided for a full-time temporary maternity leave cover. Equally, there is nothing odd in a suggestion from the claimant about the potential for work otherwise done by an agency worker being done by her. It is difficult to understand why the respondent would simply have invented these statements and what purpose the respondent would have sought to achieve in doing so.

 

56. The note of the meeting concluded by recording that the claimant stated that she " wasn't sure now if she could work for Sean" and that she demanded any job. She stated that she needed to know that week. Having observed the claimant, Ms Moorehead and Mr Trainor give evidence and given that it was accepted by all parties that the claimant was, at the very least, stressed and upset, the tribunal concludes on the balance of probabilities that the note was entirely accurate and that the claimant had stated at the tail end of the meeting, when Mr Trainor had left, that she was not sure if she could work for him. The tribunal also concludes that she was quite forceful in demanding ' any' job and that she had pointed out that time was pressing for her.

 

57. On 3 December 2014 the claimant wrote again to Ms Moorehead. She stated that 3 December 2014 was her last day in her current post and asked Ms Moorehead to contact her that day to review redeployment opportunities. She stated that the meeting on the previous day with Mr Trainor had been very ' stressful'. Ms Moorehead wrote back on the same day indicating that this was not her last day of service although it was her last working day as she was taking annual leave and that her contract remained in place until 31 December 2014. She stated that she would try to make contact with her as soon as she possibly could.

 

58. Later that same day, the claimant telephoned the respondent to ask if Ms Moorehead could meet her urgently to discuss her redeployment. Ms Moorehead rang the claimant and agreed to meet on 5 December 2014.

 

59. On 4 December 2014, Mr Trainor wrote to Ms Moorehead summarising the meeting on the afternoon of 2 November 2014. He gave four reasons why the post of maternity leave cover was not open to job share. He stated, firstly, that the nature of the role required the post holder to have consistent engagement with stakeholders. He stated that relationship building was paramount. He stated that job sharing diluted relationship building and therefore the effectiveness of the role and he stated that based on previous experience he believed that a job share for this important post, ie the maternity cover post, would present difficulties to the service in securing another person willing to job share.

 

60. In the same note, Mr Trainor also expressed concerns about the suitability of the claimant in any event for the post. However, the tribunal is content that the claimant was not completely ruled out of consideration at that point. The e-mail specifically stated, firstly, that:-

 

"Before further consideration, a formal interview would be required to probe more."

 

The e-mail then went on to state that he would not wish appoint the claimant on the basis of the meeting for five specific reasons. He stated, firstly, that the claimant gave little indication as to the areas of marketing which were required in this post, working on her initiative and relationship making. He stated that the claimant had indicated, firstly, that she could not do full-time work but then stated ' beggars can't be choosers'. He pointed out that the claimant had been currently stressed out with her current part-time role. He stated that the claimant had also seemed concerned at the prospect of having to work on her own a lot. He finally pointed out the job required flexibility which the claimant had not confirmed that she had and that the claimant had indicated her preference was for job share. He stated, finally, that he was not impressed with the claimant's suitability and that he had to mention her aggressive and clearly stressed demeanour. He stated ' based on our meeting ' [tribunal's emphasis] that her experience and her preference for job share made her and the post non-compatible.

 

61. The tribunal notes, in particular, that it was Mr Trainor who raised the possibility of the requirement for a formal interview to probe the claimant more in relation to her suitability. That was not a request made by or on behalf of the claimant or indeed by Ms Moorehead. It was raised by Mr Trainor. He did not have to do that. Furthermore, his comments in relation to the claimant's suitability were heavily qualified with the fact that it was based solely on the meeting. It has to be remembered that this meeting had not gone well and that it had been difficult because the claimant had had unrealistic expectations of what would occur during that meeting. She had believed it was no more than a formality and that the maternity cover post (or the remainder of it) was hers.

 

62. On 4 December 2014 Ms Moorehead wrote again to the claimant. In particular, the claimant stated that the letter was incorrect, in that it mentioned that the Grade 5 Project Surveyor post had been previously been mentioned in the morning meeting. Again there is absolutely no reason why this would have been falsified, as suggested by the claimant. The tribunal prefers the clear evidence of Ms Moorehead.

 

63. The claimant and Ms Moorehead met again, as indicated, on 5 December 2014. The tribunal concludes that the note prepared by Ms Moorehead was accurate. The claimant pressed her need for alternative employment and discussed her personal circumstances. She asked about the project surveyor post. Ms Moorehead stated that if she was interested she would speak to the manager and take it further. The claimant asked again about the marketing officer role. Ms Moorehead stated that the claimant had said that she did not want to work with Mr Trainor and that she wanted part-time work doing anything. The claimant said that this had been said in the heat of the moment. She stated she was still interested in the job. Ms Moorehead stated a formal interview would give Mr Trainor the opportunity to find out more about the claimant's experience and skills and at the same time would give the claimant an opportunity to put forward those skills and experience.

 

64. Ms Moorehead sent the claimant the job description for the project surveyor post, as had been discussed. The claimant e-mailed Ms Moorehead on 8 December 2014 to state that she could not afford the drop the salary related to this post. One other post in which the claimant had expressed interest was rated at two grades higher than her substantive post and was therefore not a suitable redeployment. The other post was that of assistant policy officer but was a very specialist role. Ms Moorehead stated that on that basis it was not an option they could explore further. Ms Moorehead confirmed that that left them with the single role of the marketing officer post which was at the claimant's current grade. A formal interview was provisionally scheduled for 12 December 2014. The claimant indicated that that date did not suit and asked for an alternative. An alternative date was arranged for 15 December 2014 at 6.00 pm in the hope that an evening appointment would better suit her childcare arrangements. That pre-arranged date did not suit the claimant and she suggested 12 December 2014 at 4.00 pm. That was finally confirmed. The tribunal notes the considerable efforts made by the respondent to arrange the formal interview at a time and date that would suit the claimant. Those efforts are not consistent with the claimant's argument that she was being forced out.

 

65. At about this time, flexi time and leave balance and TOIL balances were confirmed. The tribunal sees nothing sinister in any of this. The claimant had clearly been unable to fix these matters and it would have been a normal part of an employer/employee relationship to confirm them when a potential redundancy was looming.

 

66. On 9 December 2014, the Chief Executive sent a urgent trawl notice to all staff in relation five secondment opportunities in the new amalgamated Council. That was specifically forwarded to the claimant by Ms Moorehead. Again, that does not seem to the tribunal to be consistent with an attempt by the respondent to avoid providing suitable alternative employment.

 

67. The claimant alleged in the course of the hearing that favourable treatment had been shown towards the agency worker. That was despite the fact that it was clear that the agency worker had not been named specifically as a comparator by the claimant in the interlocutory process. Two other individuals had been named as comparators but not the agency worker. It is entirely unclear why the time in the tribunal was spent in relation to this matter. In any event, it was clear that the agency worker, had a third level marketing qualification as required by the job specification. It is equally clear that the claimant did not have that qualification. The agency worker also had over three years' experience as a marketing officer for the Southern Area Hospice. The job specification required that three years' marketing experience be in either the private or public sector, including delivery of ' public and private sector marketing initiatives'. While the charitable sector had not been specifically mentioned, the ordinary reading of the words ' public and private sector' in this type of document indicates to the tribunal it was simply meant to cover any type of employment. There would have been no logical reason for excluding, from the broad definition of the public and private sector, people employed providing services similar to those provided in the Health Service in a charitable organisation. Equally, it would have made no sense to exclude those people employed by, say, an embassy or by the EU Commission or those who were self-employed. The ordinary meaning of the words used in the job specification was meant to include those jobs. It is difficult again to see why the claimant makes such a point about this while even if, using a rather pedantic and narrow interpretation of the words ' public and private sector' there might have been a little leniency shown towards the agency worker, it cannot compare in the least to the substantial leniency shown towards the claimant in interviewing her formally for this post when she clearly did not have the third level marketing qualification which was the first criterion in the job specification.

 

68. The claimant was interviewed by both Mr Trainor and Ms Moorehead. Each kept their own note and their own marks. Once that had been completed they produced a joint marking. They had discussed the earlier informal meeting on 2 December 2014 and had both agreed to start the interview afresh with no preconceptions. The tribunal accepts that his had been their approach. The tribunal does not accept that this formal interview had had a predetermined result as alleged by the claimant.

 

69. Again a great deal of time was spent in the course of the hearing in relation to an argument advanced on behalf of the claimant that there was something sinister in the non-use of the Local Government Staff Commission Guidelines in relation to the interview process. This was not an appointment attracting those guidelines. It was a redeployment exercise in the context of a potential redundancy. The Local Government Staff Commission Guidelines were not used in such redeployment exercises. They therefore did not have to be used in relation to the formal interview of the claimant. When invited, the claimant was unable to point to any part of the Guidelines which provided that they were required to be used in those circumstances. Equally, the Guidelines had no relevance to the selection of an agency worker earlier in September 2014.

 

There was no requirement to have a formal interview as such or to have an interview panel of three people rather than two people. While the claimant criticised the inclusion of Mr Trainor as part of the interview panel, he was the relevant line manager and the obvious choice. He had reached preliminary views about the claimant's suitability but those conclusions were expressly and clearly based only on the informal interview on 2 December 2014. He volunteered the possibility of a formal interview to test those preliminary view s. He had not definitively made his mind up about the claimant and had agreed to start afresh in the formal interview.

 

70. Having listened to the claimant give evidence and having listened to Mr Trainor and Ms Moorehead give evidence, the tribunal concludes that during the formal interview the claimant had failed to provide adequate detail in relation to her experience and her suitability in relation to this post. The tribunal concludes that the marking was fair and entirely justified. The claimant was not found suitable for employment for the remainder of the maternity leave cover for the marketing officer.

 

71. Ms Moorehead awarded 12 points overall and Mr Trainor 10. They concluded on the ' Interview Summary Form' that:-

 

"Most of the candidate's experience was not considered relevant for this specific post - gaps in the requirements. Answers lacked the detail required."

 

72. There were five substantive questions in the interview. Ms Moorehead asked two and Mr Trainor three.

 

73. The first question was ' Please tell us about your experience to date and how they [sic] relate to this post?'. Six ' positive indicators' were included on the marking sheet as an aid to marking. They were:-

 

"(1) Project manage marketing initiative from development to evaluation.

 

(2) Building relationships with stakeholders for buy in.

 

(3) Tourism and Town Centre development experience.

 

(4) Administration management.

 

(5) Seek and management of external funding.

 

(6) Assist with devising strategic and operational plans."

 

The individual sheets compiled by Ms Moorehead and Mr Trainor in the course of the interview show notes of the answer given by the claimant. Both had some difficulty in recording the detail of the interview at this stage but both stated that there were gaps in the answers. Statements were made or ' buzzwords' were used by the claimant without sufficient supporting evidence or detail. Evaluation, seeking external funding and devising strategic and operational plans were not adequately covered. Mr Trainor stated that the answer had been extensive but not necessarily relevant.

 

74. The second question was:-

 

"Please tell us about a time when you were involved in a marketing situation?"

 

(a) What was your job?

 

(b) What was the outcome?"

 

Five positive indicators for (a) were provided to assist with marking. They were:-

 

"(1) Looking to lead the initiative.

 

(2) Research and identify issues.

 

(3) Resource the initiative people (generally external).

 

(4) Challenges presented, how overcome?

 

(5) How personal input influenced outcome?"

 

Four positive indicators for (b) were provided:-

 

"(1) Good/bad, what would you do different?

 

(2) How did you measure outcome?

 

(3) Looking to find out if candidate can learn from mistakes and capture and use successes.

 

(4) Overall the benefit and value of evaluation."

 

The issue here was that one external agency had been engaged to devise the marketing strategy on the Rivers Project; another had been engaged to conduct evaluation. This had not been the claimant's own work. Both interviewers felt her answers lacked depth and detail. If she had given an example, other than the Rivers Project, where she had been more directly involved in marketing, she would have got higher marks. She did not.

 

75. The third question was:-

 

"The job involves working with a wide range of stakeholders:-

 

(a) How would you ensure you gain their support?

 

(b) What particular skills would you use to achieve best results?"

 

Four positive indicators were provided for (a):-

 

"(1) Friendly approach, there to assist them not to hinder.

 

(2) Use influence, knowledge and research.

 

(3) Know what they need and you need.

 

(4) Mutual benefit, partnership."

 

Four positive indicators were provided for (b):-

 

"(1) Influencing, encouraging, advice.

 

(2) Take away bureaucracy/barriers.

 

(3) Good interpersonal skills, friendly co-operative approach.

 

(4) Get things done but ensure not lumbered on self - use external people as a resource."

 

Again the interviewers felt that the answer provided had gaps and lacked practical examples. For example, the claimant stated that she had good communication skills but did not provide an example. She mentioned things without providing detail.

 

The fourth question was a scenario question, asking how the claimant would prepare for, deal with, and evaluate a meeting with committee representatives who were seeking funding for an event.

 

Both interviewers again felt that the answer again lacked detail and had gaps. The claimant had not considered how the event would have affected the Council or councillors and how it would have fitted in with the corporate plan. She did not state what she would have researched.

 

76. The fifth question was:-

 

"Please give us an example of when you had to prepare a speech/press release? -

 

(a) What was involved?

 

(b) How/where did you distribute it to?"

 

Some positive indicators were provided to assist with marking.

 

The claimant was directed to deal with either a speech or a press release. She elected to deal with both in her answer.

 

The involvement of external agencies in the Rivers Project affected her marking.

 

77. The claimant was also unsuccessful in her application for secondment to the new amalgamated Council. On that basis, Ms Moorehead wrote to the claimant on 15 December 2014 with a Notice of Termination. It confirmed that the fixed-term contract would not be renewed on its expiry and that her employment would therefore terminate on 31 December 2014. It provided that she was entitled one month's notice commencing on 16 December 2014 and that a statutory redundancy payment would be made.

 

78. The claimant appealed against that termination by letter dated 19 December 2014. That letter is worded oddly. It stated in clear terms that:-

 

"I would like to have it explained to me why the current marketing officer's initial offer of employment was withdrawn in September 2014 so that I could take up this position at the end of September having been deemed suitable ... ."

 

That letter can only be read as stating that the maternity cover post had been withdrawn from the agency worker in September 2014 on the basis that the claimant had been found suitable for the post and that it had been offered to her. However, the parties accepted, in the course of this tribunal hearing, that the marketing officer post had never been offered to the claimant in September 2014 and that she had not been deemed suitable at that stage. To have asserted the contrary in a letter of appeal is inexplicable.

 

79. The claimant argued that she was the only person who had to attend a formal interview in these circumstances. However it seems clear and the tribunal accepts that she had been the only employee where the potential line manager in that redundancy redeployment situation had expressed concerns about her suitability. In the four other cases where the employees had been redeployed to like for like posts the line manager had been content for the redeployment to take place.

 

80. The appeal was to be heard by Mr Aidan Donnelly. He had not conducted an appeal of this nature before and there was no formal process or written process for either a redundancy process, a suitable alternative employment redeployment process or an appeal process in such circumstances. The tribunal accepts that that was not particularly surprising given that it may have been some time since redundancies were an issue in local government. In any event, the tribunal accepts that Mr Donnelly took advice from the HR Department as matters progressed.

 

81. He met the claimant on 29 December 2014. Ms Mary Penny took a note and Ms Marie McCormick attended as the claimant's witness.

 

82. In Ms Penny's note she stated that Mr Donnelly had asked the claimant a number of clarification questions in relation to her appeal and that a discussion of the appeal followed.

 

83. As with earlier notes the claimant alleges that the note prepared by Ms Penny was inaccurate and deliberately inaccurate. She stated in her witness statement:-

 

"I can only conclude that most of these minutes were fabricated in an attempt to show that Ballymena BC held a meaningful appeal meeting, when in fact they held a clarification meeting."

 

The tribunal does not accept that Ms Penny fabricated these notes and after having listened to the evidence, the parties concludes that the notes were an accurate reflection of the meeting. It is particularly puzzling that, after securing the attendance of a witness to a disputed meeting, the claimant did not call that witness to support her version. The tribunal can only draw the inference that the witness would not have assisted the claimant's case.

 

84. Mr Donnelly concluded the meeting by stating that he would discuss the meeting and the letter of appeal with Mr McKnight, Acting Chief Executive, and get back to the claimant to advise her how this would move forward, ie with either a written response (determining the appeal) or a further meeting.

 

85. The claimant sought to allege, for the first stage in the course of the tribunal hearing, that it was in fact Mr McKnight who had determined this appeal and not Mr Donnelly. That allegation was withdrawn after some discussion. If it had been proceeded with, on behalf of the claimant, the tribunal would have had to rule on whether it was appropriate to proceed with that new allegation or whether it would have been more appropriate for the respondent to have been allowed a postponement to secure the attendance of Mr McKnight to answer this entirely new allegation and for an order in relation to any costs incurred thereby.

 

86. A great deal of time was spent at the hearing in relation to a ' to do list' compiled by Ms Penny. The tribunal concludes that there was nothing sinister in that list. Equally, a great deal of time was spent in the tribunal in relation to an allegation that references to ' the Council' meant that there was also something sinister in that reference and that someone, other than Mr Donnelly, had determined the appeal.

 

87. For the avoidance of doubt, the tribunal unanimously concludes that Mr Donnelly had concluded the appeal and that Ms Penny's note was entirely accurate.

 

Decision

 

88. The claim of indirect sex discrimination is specifically that the respondent failed to appoint the claimant for maternity cover for the marketing officer post as a result of the concerns of Mr Trainor that she would wish to work part-time or in a job share arrangement.

 

89. The tribunal notes, first of all, that there was no evidence of any predisposition on the part of the respondent against part-time workers; quite the reverse. The claimant had been previously facilitated by the respondent in relation to part-time hours in the Rivers Project post. The substantive post holder of the marketing officer post also worked part-time; for four days per week.

 

90. The tribunal sees nothing wrong in the respondent's wish to satisfy itself about the claimant's suitability for the maternity cover with a informal interview on 2 December 2014. The claimant, for some reason, had assumed that this meeting was no more than a formality and objected to questions about her suitability. She became upset and the meeting ended.

 

91. Mr Trainor voiced concerns about the claimant's suitability. However he raised the possibility of a formal interview to explore the issue further. No one else did.

 

92. The claimant knew the maternity cover post was regarded as a full-time post. She accepted that. As she stated in her claim form she " proceeded to formal interview on the basis of my willingness to work full-time".

 

93. There is no evidence that the respondent had made up its mind to refuse the post to the claimant on the basis that she really wanted to work part-time or to job share. The claimant had accepted the maternity cover was full-time. She had asked to be considered on that basis. She was formally interviewed on that basis. The maternity cover had only a limited period to run at that time; perhaps nine months. There had been no indication from the claimant that she wanted to revise her position and press for part-time work, during this diminishing period.

 

94. The first building block for a claim of indirect sex discrimination is that the relevant PCP had been applied to the claimant to her detriment. The PCP had been identified by the claimant in this case as the requirement that the maternity cover post was full-time. However the claimant had been willing to work full-time for the remainder of that short term post. She had been interviewed on that basis.

 

95. This is not a situation such as that in Muldrew v Board of Governors at Larne Grammar School - www.emplolymenttribunalsni.gov.uk (quoted by both counsel). In that case a PCP had been applied to the claimant's detriment. The respondent had determined not only that a particular post needed to be a full-time post but, crucially, had excluded the claimant on that basis. That did not happen in the present case. The claimant in the present case had expressed her willingness to work full-time for the remainder of the maternity cover as an alternative to redundancy and had been formally interviewed on that basis. There is no evidence that her initial preference for part-time working had played any part in the formal interview process and the tribunal is satisfied that it did not do so.

 

96. The claimant has asked the tribunal to accept that four people, Ms Moorehead, Mr Trainor, Mr Donnelly and Ms Penny had falsified notes or had colluded in or accepted the falsification of notes and had then set up an interview process in bad faith with a predetermined outcome and an appeal process with a predetermined outcome. That is simply not credible.

 

97. The reality was that the claimant clearly did not meet the first criterion for the maternity cover post. She did not have a third level marketing qualification. Her objection to the agency workers relevant marketing experience being in the charity sector is spurious and pedantic. Despite that lack of a qualification, the respondent, including Mr Trainor, continued to consider her for the maternity cover post. If, as the claimant argues, the respondent did not want to provide alternative employment for her, it is difficult to see why they would have done this, rather than simply telling the claimant that the marketing qualification was an essential criterion.

 

98. The tribunal can also see no reason why the respondent or four employees of this respondent would have gone through an alleged charade simply to disguise a predetermined outcome, and simply because the claimant initially suggested she preferred to work part-time or to job share. She was willing to work full-time in the maternity cover post. Her initial preference for part-time work or for a job share was not an issue in the formal interview.

 

99. The respondent had in fact facilitated the claimant's part-time hours in the Rivers Project, had re-opened a trawl to facilitate her, had arranged and re-arranged a formal interview to assist her and had engaged in extensive efforts to find her suitable alternative employment. The reason she did not get the maternity cover post was simply her performance at the formal interview. She did not provide enough detail at the final interview to justify appointment. This was maternity cover for a marketing officer post and she did not demonstrate that she was suitable.

 

100. A claim of indirect sex discrimination requires, first of all, that a relevant PCP had been applied to the claimant to her detriment. In this case it had not. There is no evidence on which a tribunal could reasonably infer that the claimant had been excluded because of a preference for part-time working or for a job share. It was plain that the interview was for a full-time post and that had been agreed to by both the claimant and by the respondent.

 

101. The claim of indirect sex discrimination is therefore dismissed.

 

Unfair dismissal

 

102. The tribunal concludes that the reason for the claimant's dismissal was redundancy; a potentially fair reason. The funding for the Rivers Project post concluded and the claimant was redundant at that point. There is no evidence of any other reason for the dismissal.

 

103. The claim of unfair dismissal is, firstly, an allegation that the process was inadequate and; secondly, that suitable alternative employment was available and was not offered to the claimant.

 

104. The respondent had no pre-written redundancy/redeployment procedure. That does not make the respondent's actions unlawful in itself. The respondent went through a series of meetings as noted above and fully satisfied its duty to consult with the claimant. It satisfied the requirements of the statutory dismissal procedure. In particular, an appeal hearing was conducted by Mr Donnelly on 29 December 2014 and was properly determined by Mr Donnelly. The procedure followed by the respondent was fair and reasonable.

 

105. There were no suitable alternative positions ultimately available, despite the substantial efforts of the respondent. The claimant argued that she should have been given the maternity cover post for the marketing officer. The claimant was not suitable for that post. The claimant did not have a marketing qualification. The agency worker then providing the maternity cover did have such a qualification together with three years' marketing experience. The claimant's recent post as project manager for the Rivers Project had a limited marketing content which was, in any event, provided by two external agencies. She was nevertheless informally and then formally interviewed. She had been marked fairly and the respondent had been entitled to reach the decision that it did.

 

106. The tribunal is therefore satisfied that the dismissal was a fair dismissal and the claim of unfair dismissal is dismissed.

 

 

 

 

 

 

 

Vice President

 

 

Date and place of hearing: 9 - 13 November 2015, at Belfast

 

 

Date decision recorded in register and issued to parties: