Industrial Tribunals Northern Ireland Decisions

INDUSTRIAL TRIBUNALS

 

CASE REF:   1316/13

 

 

 

CLAIMANT:                      Ashraf Farag

 

 

RESPONDENT:                S P Graham Ltd T/A Sean Graham

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant was not discriminated against by the respondent on the grounds of age and/or race contrary to the Employment Equality (Age) Regulations (Northern Ireland) 2006 (‘the 2006 Regulations’) and/or Race Relations (Northern Ireland) Order 1977 (‘the 1997 Order’) respectively; and the claimant’s claims are therefore dismissed.

 

Constitution of Tribunal:

Employment Judge:         Employment Judge Drennan QC

Members:                        Ms V Walker

                                        Mr J Law

 

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Mr T Sheridan, of Peninsula Business Services Ltd.

 

Reasons

 

1.1     The claimant presented a claim to the tribunal on 9 July 2013, in which he made a claim of age discrimination and/or race discrimination in relation to his failure to be appointed to the post of Betting Shop Manager with the respondent when it failed to shortlist him for interview for the said post.

 

          The respondent presented a response to the claimant’s claim to the tribunal on 20 August 2013, in which it denied liability for the said claims by the claimant.

 

1.2     In accordance with the tribunal’s normal practice, at a Case Management Discussion, on 10 October 2013, as set out in the Record of Proceedings dated 17 October 2013 the claimant and the respondent’s representative agreed the following issues in an amended statement of legal and factual issues which had been drafted by the respondent’s representative, subject to further comments set out in the record and referred to below:-

 

                    “Legal Issues :

 

1.       Whether the claimant was unlawfully discriminated against on the grounds of his age contrary to the Employment Equality (Age) Regulations (Northern Ireland) 2006 by not being selected for the post of Betting Shop Manager?

 

(a)      Whether he received less favourable treatment as a result of his age by the respondent than any other younger candidate who applied for the post of Betting Shop Manager?

 

2.       Whether the claimant was unlawfully discriminated against on the grounds of his race contrary to the Race Relations (Northern Ireland) Order 1977 by not being selected for the post of Betting Shop Manager?

 

(a)      Whether he received less favourable treatment as a result of his race by not being selected for the post of Betting Shop Manager contrary to the Race Relations (Northern Ireland) Order 1997?

 

                    Factual Issues :

 

                    1.       Whether the claimant was not selected due to his age?

 

2.       If not, why was the claimant not selected for the post of Betting Shop Manager?

 

3.       Did the respondent conduct a reasonable selection process?

 

4.       Whether the claimant was not selected due to his race?

 

5.       If not, why was the claimant not selected for the post of Betting Shop Manager?

 

6.       Did the respondent conduct a reasonable selection process for the post of Betting Shop Manager?

 

7.       Whether Mr Deery treated the claimant any differently from the other candidates due to his age?

 

8.       Whether Mr Deery treated the claimant any differently from the other candidates due to his race?

 

9.       Whether Mr Deery fully considered the claimant’s application for the post of Betting Shop Manager?

 

10.     Whether the claimant was informed his application was unsuccessful?

 

11.     108 applications for the post of Betting Shop Manager were received of which 69 were incomplete leaving 39 applications considered for interview.

 

12.     Each of the 39 applications were all assessed equally against eight personal specifications and shortlisted for the interview stage.

 

13.     There were 18 selected for the interview stage.

 

14.     The respondent did not reply to the claimant’s letter dated 17 May 2013.”

 

          As set out in the said record, the following comments were also made, namely:-

 

                    “ ...

 

(2)      The claimant’s national origin is Egyptian.  He was aged 61 at the time of the acts complained of.

 

(3)      According to the respondent company : (1) it had 7 vacancies (the claimant applied for those vacancies) (2) There were 39 applications (3) of those, 19 were invited for interview.

 

(4)      The claimant was not shortlisted.  (He was not invited for interview.)  He was not appointed.  He asserts that, if there had been a fair assessment of his demonstrated merits, and if there had been fair assessments of the demonstrated merits of other candidates he would have been shortlisted (he would have been invited for interview) and he would have been appointed to one of the vacancies.  The respondent says that the short listing and appointment process were carried on entirely fairly and that those exercises were in no way affected by ageism or racial bias. 

 

(5)      Accordingly, the main factual issues in this case are whether or not, on the basis of his demonstrated merits, and on the basis of the demonstrated merits of the other applicants who completed application forms, the claimant should have been : (1) shortlisted? and/or (2) appointed?  If the answer to both those questions is ‘No’, that, for practical purposes, may well be the end of the matter.  If the answer to either of those questions is ‘Yes’, then the next issues will be as follows.

 

(6)      First, to what extent, if at all, was the decision not to shortlist the claimant tainted by anti-Egyptian, or pro-British or pro-Irish discrimination?

 

(7)      To what extent, if at all, was the decision not to shortlist the claimant tainted by ageism?

 

(8)      To what extent, if at all, was the omission not to appoint the claimant tainted by anti-Egyptian, or pro-British, or pro-Irish discrimination?

 

(9)      To what extent, if at all, was the decision not to appoint the claimant tainted by ageism?

 

(10)    The claimant also complains of racism in relation to the failure to deal adequately with his post-recruitment process queries.

 

(11)    In every instance, the racial discrimination complained of is direct racial discrimination.  In every instance, the ageism complained of is ageist bias (as distinct from ageism which consists merely of applying neutral criteria which happen to have ageist effects).

 

... .”

 

1.3     It was not disputed by the respondent’s representative that, if any employee of the respondent discriminated against the claimant as alleged, the respondent was vicariously liable for the acts of any such employee, which were done in the course of his/her employment.

 

2.1     The tribunal heard oral evidence from the claimant, and, on behalf of the respondent, Chris Deery, the general manager of the respondent.  Having considered the evidence given to the tribunal by the parties as set out above, the documents contained in the ‘trial bundle’, as amended, to which the tribunal was referred during the course of the hearing, together with the oral submissions of the claimant and the respondent’s representative, the tribunal made the following findings of fact, insofar as necessary and relevant for the determination of the claimant’s claim, as set out in the following sub-paragraphs.

 

2.2     The claimant applied for the position of shop manager, on foot of an advertisement placed by the respondent, which he saw in a local Belfast newspaper dated 8 December 2012, which was headed ‘Shop Manager Vacancies’.

 

          The advertisement stated:-

 

“We are seeking Betting Shop Managers interested in or used to working in a small team/shop based environment.  We only want driven people who can demand high standards of others and can live up to high standards demanded from this key management position.  Vacancies throughout Belfast.  Training commences in January.  Whether experienced working in a betting shop or not, it doesn’t matter, training will be provided.  You have to be qualified with at least G.C.S.E. grade B in Maths and English with some computer skills.  Above all we want people who are self-motivated capable of delivering high standards and able to get results from shop teams.

 

For an application form call ... or by email to ... (a CV optional list).”

 

2.3     The claimant completed his application form on 4 December 2012, together with a CV, and sent both to the respondent.  He had been previously sent by the respondent at his request an application form and in the letter from the respondent enclosing the blank form, he was told he could include a CV with the application form.  In the application form, the claimant set out his name ‘Ashraf Farag’ and his date of birth 6 May 1952.  He stated also, insofar as relevant and material:-

 

                    “Schools                                                        Qualifications gained

 

                    C11 (Chartered Insurance Institute)                  CF6 Mortgage Advice 2008

 

                    LIA (Life Insurance Association)                       LIA ALIA (O & P)1991

 

                    Jordanstown University                                    Medical Lab Science (MLS)

                                                                                          1981 – 1983

 

                    Queen’s University Belfast                               Biology         1973 – 1976

 

                    Grammar School                                             Grade A        1970

 

                    Colleges/Universities                                     Qualification gained

 

                    As above

 

                    Other training

 

                    Specialised training in different subject of finance ...

 

                    Media training by FSB

 

                    Employment        History                 Job Title & Dates               Salary    Reason for leaving

                              From - To              Names &                                                                          

address of

employer

 

                              July 1986 to          Established my     Principal                               N/A         Cost of Regulation,

                              date                       own Financial                                                                    Selling business

Services               

                                                            Company

                                                            Global Financial

                                                            Services

 

                              1985 – 1986          Colonial Mutual

Life                        Sales Executive

 

                              1983 – 1985          Canada Life           Sales Executive

 

          Leisure

 

... I like travelling and public speaking

 

          General Comments

 

Please detail here your specific reasons for this application, your main achievements to date and the strengths you would bring to this  post. 

 

I take a lot of interest in gambling and I have a wide range of experience in gambling and I understand the problems associated with it.  I am very good with numbers.”

 

          In his CV, the claimant stated, insofar as relevant and material:-

 

                    “Personal Statement:

 

I travelled in Europe and lived in Belfast since 1973.  I am a competent professional with over 30 years experience in sales encompassing business development, customer relationship management and team working in a highly pressurized financial services environment.  Currently I am a one band man working from office located within Belfast University area (walking distance from Belfast City Centre).

 

Education:

 

2008                       Passed Mortgage Exams (CF6 Mortgage Advice with C11 Designated letters CE – Map)

 

1991                       Passed my exams in the Life Insurance Association EQ to the AFPC Designated letters ALIA (Dip)

 

1981 – 1983            University of Ulster, Jordanstown (UK)

 

Medical Lab Science Designated Letters MLS

 

1973 – 1976            Queen’s University Belfast

                              Science, Physiology, Botany, Zoology Genetics

 

School:

 

Bacaloriate (equivalent to A Level).   First Class with additional subjects in English

 

Work Experience:

 

Since 1986 to Present established Global Financial Services as directly regulated and authorised by the Financial Services Authority as a whole of market independent firm.

 

Key Tasks

 

·       We offer clients full financial reviews and establish any gaps and find a solution to fulfil that need

 

·       Use excellent communication skills and presence of mind to deal with all clients (domestic and commercial)

 

·       We cover all aspects of financial services and general insurance, personal and commercial alike

 

1994 opened Global Property Sales.  Sales and Management.  Had some involvement in Property sales in Spain (Murcia)

 

I did compliance auditing for other IFA Firms.  I was also involved in training and employment AR's

 

...

 

1989 – 1991 I was active member with the Life Insurance Association (educational officer for 3 years) I was involved in teaching FPC Course to other financial advisers

 

...

 

1994 became manager of the million dollar round table

 

...

 

Current Role and Activities:

 

1.       I am always developing new sources of business via net working and professional connections such as accountants and solicitors.

 

2.       All new and renewal business is completed by myself.

 

3.       Do my own compliance assisted by Bankhall/Sesame (when needed).

 

4.       Over the years we completed a large volume of mortgage business, that is domestic, commercial and buy to let, secured and unsecured loans together with asset finance.  This work included full sales process form interviewing clients to presentation of documents to lenders, liaison with clients, solicitors, surveyors and lenders and follow ups to completion stage.

 

5.       I have my own commercial premises and I can work from home or office.

 

6.       I am self-motivated and have been working, marketing and developing my own business for the last 26 years.

 

7.       IT : I use Microsoft Office Professional; mainly Word, Excel and publisher on a daily basis, I also use back office system for electronic filling and database management.  95% of my work is communicated electronically via IT system.

 

8.       Communication Skills : I enjoy communicating with phone and face to face and emails and have been doing so for the last 30 years.  I do not like waffle, I focus on the object of the discussion.  I do like 2^nd opinion and working in group.  I accept group decisions.

 

9.       It is part of my daily routine to be organised and focused.  I plan my day in order to maximise the amount of work I can achieve starting by prioritization and meeting deadlines.  If needed I would work longer hours in order to achieve my aims and objective.

 

...

 

Other

 

I am an active member with the Federation of Small Business (FSB), locally I am a Branch Vice Chairman and Branch Regional Representative.

 

Nationally : 2008 to 2010 I was Financial Affairs Chairman for the FSB (I had my own budget, policy adviser based in London and a team of 6 people).  2009 & 2010 I was a platform motion speaker at FSB National Conference.

 

2010 I was main platform speaker for (EPIC) Annual Conference

 

... .”

 

2.4     The claimant received no communication from the respondent until he received a ‘standard format’ letter on 12 April 2013, signed by Chris Deery, General Manager of the respondent.

 

          The letter stated:-

 

“Further to your application for the position of shop manager with Sean Graham bookmakers, unfortunately on this occasion you have not been shortlisted for interview from the many applications we have received for this position.  I would like to take this opportunity to thank you for taking the time to complete an application form and wish you every success in finding a suitable position in the future.”

 

2.5     The claimant was very disappointed to receive this letter as he had expected, on the basis of the advertisement, and what he had set out in his application form and CV he would have been shortlisted for interview for the post; and, after interview, he would have hoped to be offered the position of betting shop manager.  As a consequence, he tried to contact the respondent in numerous phone calls, but without success, between 12 April 2013 and 17 May 2013 for an explanation for his said failure to be shortlisted for interview.  On 17 May 2013 he was able to speak to Mr Deery, who firmly told the claimant that he was not prepared to speak to the claimant on the phone about the matter and he should put anything in writing and he would reply to the claimant.

 

          By letter dated 17 May 2013, following this phone call, the claimant wrote to the respondent and stated:-

 

“As per our telephone conversation this morning, I did would [sic] like to know why my application for the position of shop manager was not considered.  You have asked me to specifically write to you.  I look forward to your response.”

 

It was not disputed by the respondent, the claimant did not receive a reply to that letter.  The claimant suggested Mr Deery’s tone changed when he spoke to the claimant on 17 May 2013.  The tribunal accepts his tone did change, when it heard, in evidence, the tape of the conversation and it was clear, in the opinion of the tribunal, from his tone he did not want to engage in discussion about this recruitment exercise with the claimant on the phone.  Mr Deery accepted he was annoyed by the interruption; as he explained, in evidence, because he was busy that day dealing with redundancies at Head Office and his time was otherwise spoken for and this accounted for his tone.  He accepted he did ask the claimant to write to him.  He had intended to reply but he accepted he failed to do so.  The claimant, in fairness, having heard the tape of the conversation, accepted he may have read too much into the change of tone and had taken it up wrongly.  In the circumstances, the tribunal was not prepared to draw any inference from the telephone call itself and any change of tone by Mr Deery (see later).

 

2.6     In the absence of a reply, the claimant hand-delivered on 8 July 2013 to the respondent a letter, with enclosures, dated 8 July 2013:-

 

                    “My letter to you on 17.05.2013

 

To date I have not received any response from you to my letter above.  From the way you are treating me I feel that I was not selected for interview because of either race discrimination or age or both [tribunal’s emphasis].  I am taking this matter further and I enclose RR63 for your attention”.

 

However, there was no reference in the covering letter that an age discrimination questionnaire, unlike the race discrimination questionnaire (RR63) was also enclosed.

 

It was not disputed by the respondent that a race discrimination questionnaire, dated 4 July 2013, was then received by the respondent.  The claimant maintained that he had also hand-delivered, at the same time, an age discrimination questionnaire; but this was strongly disputed by Mr Deery.  The claimant said, in evidence, he had signed the race discrimination questionnaire on 4 July 2013, but did not deliver it until 8 July 2013, as he only received from the Equality Commission for Northern Ireland on or about 8 July 2013 a blank age discrimination questionnaire form, which he had previously sought from the Commission.  He informed the tribunal he had kept a copy of the age discrimination questionnaire form he had hand-delivered, which he subsequently produced in evidence to the tribunal.  It was dated 8 July 2013.  Unlike the race discrimination questionnaire (see below) it merely stated:-

 

“(2)     17-5-13 letter to employer to explain their action – no response to date.

 

 (3)     I consider this treatment may have been unlawful because of my age.”

 

          However, no specific questions were asked to be replied to by the respondent.

 

          By way of contrast, the race questionnaire was more detailed and stated:-

 

“2.      On 17.5.13 letter to employer to explain their action.  No response to date.

 

 3.      I consider that this treatment may have been unlawful.

 

There is no reason and you failed to give me any reason as why I was not selected for interview.

 

You have failed to give me a written explanation of same despite the fact you asked me to write to you.  This is either race or age discrimination or both                         [tribunal’s emphasis].”

 

          In Paragraph 6 he stated:-

 

“See enclosed Attachment Race Discrimination Recruitment and Selection Questions (1 to 31).”                                             (see later)

 

2.7     On 9 July 2013, the claimant presented his claim to the tribunal, dated 4 July 2013, in which he claimed age and race discrimination, referring in particular to the letter of 12 March 2013 and his conversation with Mr Deery on 17 May 2013 and the failure of the respondent to reply, as referred to in the previous sub-paragraphs.  The respondent presented a response to the tribunal on 20 August 2013.  The response was drafted for the respondent by its representative, Peninsula Business Services Ltd (‘Peninsula’) and, in particular, Mr Michael Farry, a consultant with Peninsula.  It was not clear to the tribunal if Mr Deery saw the terms of the response, drafted by Peninsula, before it was issued; although he was the main person from the respondent who took all relevant decisions relating to this recruitment exercise.  If it was, Mr Deery did not suggest any relevant amendment to the draft.  Peninsula were sent by Mr Deery, for the purposes of drafting the response, and as seen later, the reply to the questionnaire, some of the paperwork relating to this recruitment exercise.  The tribunal was satisfied, on the evidence before it, this was limited to the typed list of applicants prepared by the respondent, detailing, inter alia, date applied, whether CV provided, whether application form was returned, whether shortlisted, whether interviewed, job offered and whether accepted; the handwritten short listing matrix prepared by Mr Deery; the typed interview schedule detailing, inter alia, all applicants (external and internal) interviewed, date of interview, decision and outcome.  Other than the supply of this limited paperwork, the tribunal is satisfied there was no relevant and meaningful discussion between Mr Deery and Michael Farry before the response and reply to the questionnaire was drafted by Peninsula, on behalf of the respondent and sent to the claimant (see also later).

 

2.8     The response to the claim form stated, in particular:-

 

“It is denied that the respondent discriminated against the claimant on the grounds of his race and/or age or that he was subject to any detriment on these grounds, as alleged, or at all.

 

1.       The claimant had been informed by the respondent that his application for the role of Betting Shop Manager had been unsuccessful.  Whilst the claimant was considered for interview, it was decided that other candidates better demonstrated the respondent’s requirements, following a review of each application.

 

More specifically:

 

(a)      The respondent avers that thirty-nine individuals who submitted a full application were considered for interview; sixty-nine individuals who submitted an incomplete application were not considered for interview.

 

(b)      The respondent considered each full application on its own merits with reference to the relevant applicant’s level of competence and experience.

 

(c)      The respondent avers that each individual selected for interview exceeded the claimant’s level of competence and experience.

 

(d)      The respondent accepts that they did not respond to the claimant’s letter dated 17 May 2013.

 

2.       The respondent refutes any allegation that they treated the claimant less favourably on account of his race and/or age [tribunal’s emphasis].  It is asserted rather that they fully considered the claimant’s application deciding that, based on level of competence and experience alone, other applicants could better demonstrate their requirements.

 

... .”

 

          On 20 August 2013, a reply, headed ‘Race Relations (Northern Ireland) Order 1977’, to the race discrimination questionnaire, was sent to the claimant dated 20 August 2013, which was the same date as the response to the tribunal.  It was also drafted for the respondent by its representative, Peninsula.  It was signed by Michael Farry of Peninsula, for and on behalf of Mr Chris Deery, in whose name the reply was given. 

 

Mr Farry drafted the reply on the basis of the same paperwork sent by Mr Deery to Peninsula, referred to previously, and which was used also in the drafting of the response.  Mr Deery did read the reply, as drafted, before it was issued to the tribunal; but the tribunal is satisfied, at best, it was a cursory glance and not read in any depth, as he was content, as with the response to the claim form, to leave it in the hands of Peninsula, and, in particular, Mr Farry.  He maintained, somewhat surprisingly, if he had read the reply properly, he did not notice the reference, as drafted by Mr Farry, to the denial of race and age discrimination in either the response or the reply. 

 

2.9     The reply stated the questionnaire was dated 4 July 2013 and served on Mr Deery on 4 July 2013.  The tribunal considers this was in error.  It was based on the perusal of the paperwork by Mr Farry; but the tribunal is satisfied by the evidence of the claimant, it was in fact served on 8 July 2013, by the claimant in person, as set out previously.  There is no separate reply to the age discrimination questionnaire, which the tribunal, not without some hesitation, accepts was also hand-delivered by the claimant on 8 July 2013.  It concluded it has been subsequently lost by the respondent, which as seen later, is not the only document which has been lost by the respondent in relation to this recruitment exercise.  It was not replied to in any event.  In the view of the tribunal, this failure, is of little relevance since, in the reply to the race discrimination questionnaire, as set out below, Mr Deery specifically refuted, in Paragraphs 2 and 4, the allegations of race and/or age discrimination and Mr Farry, in drafting same, had clearly taken note from Paragraph 3 of the questionnaire, the claimant was making an allegation of race and/or age.

 

2.10    In essence, the reply to the questionnaire, in Paragraph 2 follows closely the terms of the response to the tribunal, which is not surprising since both documents were drafted by Peninsula/Michael Farry, on behalf of the respondent.

 

          In the questionnaire, the claimant asked 31 detailed questions relating to this recruitment exercise.

 

          In relation to the short listing he asked nine questions, based on a ‘standard format’ including, in particular,:-

 

“7.      How many candidates applied for the above named post?  State the names and race of the candidates.

 

In providing details of race please state by reference to                                (i)  Black/White (ii)  National Origin (iii)  Nationality (iv) Ethnic origin.

 

8.      How many candidates were shortlisted for interview?  State the name and race of those shortlisted.

 

In providing details of race please state by reference to                                (i)  Black/White (ii)  National Origin (iii)  Nationality (iv) Ethnic origin.

 

9.      Please state the essential criteria used for short listing for the post.

 

10.    Please state the preferred criteria used for short listing for the post.

 

16.    Please explain why I was not shortlisted.”

 

He also asked similar questions relating to the interviews held and appointments made and asking, in particular, what attributes did the successful applicants have that he did not have and the criteria used for the final selection of the successful candidate and why the appointment of the candidate was made.

 

In reply to the said 31 questions, the following composite reply was made:-

 

“The respondent does not believe that they discriminated against the claimant on the grounds of his race and/or age [tribunal’s emphasis] or that he was subject to any detriment on these grounds; as alleged.  It is asserted that they followed a full and thorough selection process in determining the most appropriate candidate(s) to interview, for the role of Betting Shop Manager, from a pool of 39 applicants.

 

The respondents will detail a response to any query and will provide relevant documentary evidence in accordance with any order submitted in respect of any claim to the Industrial and/or Fair Employment Tribunal (in Northern Ireland).

 

The respondent notes that the complainant has submitted a claim to the Industrial and/or Fair Employment Tribunal (in Northern Ireland) under the following case number 1316/13 IT.

 

... .”

 

The tribunal has no doubt that the failure of Mr Deery to reply, as he had agreed, to reply to the claimant’s letter of 17 May 2015, coupled with the failure of the respondent to state precisely the reason he had not been shortlisted beyond a mere denial of race and/or age discrimination, in the reply to the questionnaire and the response, increased his disappointment and hurt in not being shortlisted for interview.

 

2.11    Mr Chris Deery, as the General Manager of the respondent, was required to look after the respondent’s retail operation for the respondent’s 23 betting shops in Northern Ireland.  He also had responsibilities for licensing and personnel issues.  In each shop, in order to cover shifts, it is necessary to have two managers.  As part of this recruitment exercise, the respondent was therefore seeking to recruit trainee managers to take on a 12 week training programme and, after training, to become shop managers.  As training was to be provided for all successful applicants the advertisement made it clear previous experience in a betting shop was not necessary.  Mr Deery drew up the terms of the advertisement, referred to previously, which was similar to advertisements used by the respondent in the past.

 

2.12    Mr Deery subsequently drew up a short listing matrix, which was taken from a ‘standard form’ provided to him by Peninsula for the short listing exercise, in order for him to determine which applicants were to be shortlisted for interview.  This short listing matrix was only used by Mr Deery for the short listing of the 33 external applicants for the post (see later re: the six internal applicants).

 

          The matrix stated under the heading ‘Requirements taken from Personnel Specification’, eight specific requirements.  In fact there was no personnel specification, as stated on the matrix; but the requirements on the matrix were determined by Mr Deery, based on his experience of what he considered was required, in order to be shortlisted for such a post.  He stated, in evidence, there was no significance in the order of the said requirements on the matrix form – which were as follows:-

 

                    “1.      GCSE Maths B

 

                     2.      GCSE English B

 

                     3.      Evidence of Computer Skills

 

                     4.      Managed Staff/Team

 

                     5.      Worked as part of a Shop Team environment

 

                     6.      Evidence of delivery of High Service Standards

 

                     7.      Flexible work shifts

 

                     8.      Recent Customer Handling experience”

 

          He stated he worked on the basis that, for this short listing exercise, a candidate had to qualify on at least five of the eight requirements.  He stated none were essential but it was important they had the said number of the requirements; albeit he acknowledged that the wording in the advertisement stated specifically:-

 

“You have to be qualified with at least G.C.S.E Grade B in Maths and English with some computer skills.”

 

He accepted the advertisement only gave a general understanding of the role, without specifically listing all of the said requirements set out on the matrix form.  However, he felt all had been properly drawn by him from the general terms of the advertisement.  He accepted flexible work shifts had not been not expressly referred to; but he believed anyone applying for the post of Betting Shop Manager would have been aware of/understood the working hours of such a shop and that, as a consequence, shift work would be required to be undertaken by such a manager.  He further acknowledged, in evidence, for example, that if an applicant did not satisfy the said requirements relating to Maths and English, he/she could still get shortlisted, if five at least of the other requirements were satisfied.  He stated that, at the Case Management Discussion on 10 October 2013, the respondent’s representative was ‘in error’ to state there were seven vacancies; whereas there was no fixed number of vacancies for this recruitment exercise.  He stated, for the purposes of the short listing exercise and the filling out of the matrix, he had read all the application forms of the external applicants and, where provided, CVs.  Insofar as relevant, this matrix was handwritten by Mr Deery in relation to the said requirements and his decisions in respect of those requirements in respect of each external candidate.

 

2.13    On the matrix, in relation to the claimant, Mr Deery set out, as follows, against the said requirements:-

 

                    “1.      GCSE Maths B                                      X

 

                     2.      GCSE English B                                    ?

 

                     3.      Evidence of Computer Skills                  √

 

 

                     4.      Managed Staff/Team                             X

 

                     5.      Worked as part of a

                              shop team environment                         X

 

                     6.      Evidence of delivery of high

                              service standards                                  X

 

                     7.      Flexible Work Shifts                                        ?

 

                     8.      Recent Customer

                              Handling Experience                             X

 

                              Decision re: Short listing                        N

 

                    ‘N’ – meant the claimant was not to be shortlisted for interview”

 

2.14    It is necessary to note that the claimant, in his evidence, stated that he did not study under the school system in Egypt for GCSEs and A Levels, as used in the United Kingdom Schools System; but rather he studied under the French System for the International Baccalaureate, which operated at that time at his school in Egypt.  He suggested his school in Egypt was equivalent to a grammar school, as would be understood in the United Kingdom.  He stated, in evidence, which was not challenged, that, for the Baccalaureate, it was necessary to sit a range of subjects and, in particular, he was required and did sit Maths but not English.  However, he sat English as an additional subject for the Baccalaureate.  He said his overall grading of first class, as set out in the application form, was based on achieving at least 75% in each subject he sat.  He accepted he did not put down percentage records for all the said subjects he sat on the application form; but he said, which was not challenged, his Baccalaureate qualification was equivalent to ‘A’ Level, as stated on his application form and was therefore higher than GCSE.  Therefore, he maintained he had satisfied, with his said Baccalaureate qualification, in his view, the said minimum educational standard referred to in the advertisement (at least GCSE Grade B in English and Maths) and should have been given the appropriate tick for the first two requirements on the matrix.

 

2.15    As appears from the claimant’s application form, the claimant had what might be described as a ‘foreign sounding’ name and had lived in Belfast since 1973; but on the application form his colour, race, nationality or ethnic origin was not identified.  It was not disputed, as seen in the agreed statement of factual issues, the claimant’s national origin was Egyptian and he was aged 61 at the time of these events; but, on the application form there was no reference to having been born in Egypt and educated there prior to 1973, when he commenced at Queen’s University Belfast for his science course.  The claimant, in his evidence, was adamant he had filled in with his application form a race monitoring form.  Mr Deery, in turn, was adamant the only monitoring form required by the respondent to be filled in was one which covered religious belief, male/female but not race.  The tribunal was subsequently provided with some monitoring return details provided by it to the Equality Commission, which related only to religious belief.  The actual forms sent out with the application forms had been destroyed, as normal, following completion of the monitoring return.  The tribunal concluded, in light of the foregoing, the claimant may have been mistaken.  In any event, the tribunal is satisfied all such monitoring documentation would not have been seen by Mr Deery, who only saw the application forms/CVs of the applicants.  All such monitoring information obtained by the respondent from an applicant for a post was kept separately by the monitoring officer, in accordance with normal practice. 

 

          It was not disputed that, apart from the claimant, the only other applicant, with what might be described as a ‘foreign sounding’ name was Zehead Manjoo.  However all the paperwork relating to his application has been lost and therefore nothing further relating to his race or age was able to be established.  It was not disputed by Mr Deery all the other applicants, on the basis of their application forms, did not have ‘foreign sounding names’, and appeared to be of Irish/British race.  Although, in many recruitment exercises carried out by employers, monitoring details relating to race are frequently sought, it is not a legal requirement in Northern Ireland.  Indeed, Mr Deery had experience of the obtaining of such details when working for another employer in Great Britain.

 

2.16    As stated previously, the claimant applied for the post on foot of the said newspaper advertisement, referred to previously.  On 29 November 2012, Mr Deery also sent a memo to all staff (cashier grade) headed:-

 

                    ‘Subject : Job Vacancies – Trainee/Shop Managers’

 

          and which included a copy of the said advertisement, answered by the claimant.

 

          The memo also stated:-

 

“There will be various job adverts appearing in the local press as detailed below.  If you wish to apply for any of these positions please submit your application to Chris Deery by no later than the first week in January.  Interview will be taking place during the course of 2^nd to 3^rd week in January 2013.”

 

Six internal applicants applied and it will be necessary to consider how Mr Deery dealt with these applications, in greater detail later in this decision.  However, it is necessary to note at this stage, the said six internal applicants did not form any part of the handwritten short listing matrix compiled by Mr Deery, referred to previously, which only dealt with the 33 external applicants.  In addition, it must also be noted in the agreed amended statement of issues, referred to in the Record of Proceedings of the Case Management Discussion at Paragraph 10 of the said statement of factual issues, which was drafted by the respondent’s representative it is stated:-

 

“Each of the 39 applications were all assessed equally against 8 personal specifications and shortlisted for the interview stage.”

 

Indeed, it was not until the preparation of the ‘trial bundles’ by the respondent’s representative, for use in these proceedings, subsequent to that Case Management Discussion, the claimant obtained copies of all the relevant documents relating to this recruitment exercise, including the said handwritten short listing matrix, the application forms/CVs provided by the external applicants, the typed interview schedule with decision and outcome, the documents used by the respondent for short listing of the external applicants, and the interview notes for all applicants (internal and external) who were interviewed.  When the claimant received these documents, he realised that the internal applicants were assessed differently to the external applicants, such as himself (see later).

 

2.17    Mr Deery suggested, in evidence, when he was deciding to advertise externally for this recruitment exercise for betting shop manager, he had had an expectation he would receive applications from existing betting shop managers but also applicants from people working in a shop based environment and primarily from people in the shop/retail sector wanting to transfer to a betting organisation.  In addition he expected to get applicants from assistant manager level in other betting organisations looking to progress to management level.  At the same time, he was also looking for internal applicants who wanted to progress in the respondent by way of promotion/ development and the training opportunity offered.  However, he insisted, in evidence, that he had considered the recruitment of applicants, external and internal, as part of one process.  As set out previously, he trawled internally at the same time as the advertisement for external applicants.  He did so, as he stated, as he wished to give both external and internal applicants equal opportunity to be selected for the advertised posts.  He accepted both internal and external applicants were applying on the basis of the same advertisement and he was looking for both external and internal applicants.

 

2.18    The short listing for the external applicants was carried out by Mr Deery on 2 and 3 January 2014, using the short listing matrix with interview dates arranged for 8, 9 and 14 January 2014.  These were six internal applicants.  As all the internal applicants, in his view, satisfied in their internal roles for the respondent (see later) the requirements 3 – 8, as set out in the short listing matrix for the external applicants, he decided it would be superfluous to draw up a short listing matrix for the internal applicants; and even if they did not have requirements 1 and 2, as set out in the said short listing matrix (ie GCSE Maths B and English B) they therefore could still be appointed on the basis of the other satisfied requirements and were therefore all able to be shortlisted for interview.

 

2.19    None of the internal applicants, who were all shortlisted, filled in the application form, required to be filled in by the claimant and other external applicants, referred to in the advertisement for the post of shop manager, attached to the internal memo sent to staff by Mr Deery on 29 November 2012.  MW, an internal applicant, wrote a letter dated 5 January 2013 stating, inter alia:-

 

“I am writing to express my interest for the position of trainee manager.  As you are aware I am already currently carrying out duties of a shop manager and on quite [sic] a few of my shifts I am currently opening and closing shops and covering for managers who require short periods of time off.  I have a clean record on file with the company and I am keen in progressing my career with Sean Grahams.  I enjoy my job and feel I would make an excellent manager ... .”

 

Mr Deery was somewhat vague how the other internal applicants came to his attention to be considered for the position but referred to direct oral enquiry to the area manager Ms Sharon McKee or on the basis of a recommendation from the area manger the employee should apply, which occurred it was accepted in relation to MW, referred to above. 

 

2.20    It was not disputed all of the six internal applicants were shortlisted for interview by Mr Deery (see later).  In relation to these internal applicants, they were each aged ‘in their 20s’ (born from 1986 – 1992).  Four of them were offered, after interview, the position of shop manager, two were unsuccessful.

 

2.21    In relation to the 33 external applicants, 18 were shortlisted for interview by Mr Deery, as set out in the short listing matrix.  Five were offered, after interview, the position of shop manager, of whom three accepted the said offer and one was offered the position of cashier, which she accepted.

 

          In relation to those 18 external applicants, who were shortlisted for interview, it was not disputed most were in their ‘20s/30s’; but three, for example, were aged in their ‘early 50s’.  In relation to those external applicants, who were not shortlisted their ages ranged from ‘20s/early 30s to 61 years’ (the claimant was the oldest applicant – internal or external); and included, for example, one applicant in her ‘mid 50s’ and two applicants in their ‘mid/late 40s’.  Of those three external applicants, who were in their early 50s, and shortlisted, as referred to above, all were unsuccessful at interview and were not offered the position of shop manager.

 

2.22    Although the short listing was carried out by Mr Deery above, the interviews were carried out by Mr Deery and Ms Sharon McKee the area manager.  Ms McKee did not give evidence to the tribunal.

 

2.23    As stated previously, Mr Deery decided the claimant was not to be shortlisted as set out in the short listing matrix, having received one tick for ‘evidence of computer skills’ and a question mark against ‘flexible working shifts’. 

 

2.24    In relation to the requirements set out on the short listing matrix, and how they were considered by Mr Deery, it is necessary to consider them in some further detail, having regard to the claimant’s application form and CV, which has been set out previously:-

 

(i)       In relation to the requirements to have GCSE Maths and English B, Mr Deery admitted he did not know what was the Baccalaureate qualification, nor did he make any attempt to find out anything about the said qualification, what subjects required to be sat and how it compared, if at all, to a GCSE qualification.  He did not take into account the references by the claimant to his University qualifications and how to have entered University it was probable the claimant would have the said qualifications.  He stated, in evidence, he had had a large number of qualifications to consider for the short listing exercise and it was not obvious to him on reading the claimant’s application form and CV the claimant had either GCSE Grade B in either Maths or English, as set out in the said requirements on the matrix form and he was not entitled to receive a tick on the matrix form.  The tribunal concluded Mr Deery was not prepared to spend the additional time to ascertain whether the Baccalaureate qualification compared with the said requirement; although, as seen later, he was prepared to give credit for some equivalent qualifications – provided he already had prior knowledge of them.

 

(ii)     In relation to the requirement to have ‘Managed Staff/Team’, the claimant acknowledged that his CV referred to the fact he was ‘currently a one man band’, and did not refer to his previous employment of part-time staff.  In light of his reference to one man band, Mr Deery did not consider the application form/CV showed the claimant had managed staff/team.  He accepted the claimant had referred to his work as Financial Affairs Chairman for the FSB (Federation of Small Businesses) and a team of six but did not consider that this showed evidence of managing staff/team, and, in particular, evidence of the type of management envisaged by him, given the nature of the post.

 

(iii)     In relation to the requirement of ‘worked as part of a shop team environment’ the claimant pointed to the reference in his CV – ‘1994 opened Global Property Sales, sales and management.  Had some involvement in property sales in Spain (Murcia)’.  The claimant said, in evidence, this was, in essence, him working in a estate agent type office/shop; but Mr Deery said he had not recognised that from such limited detail and therefore he had concluded this requirement had not been satisfied.  In addition, as seen above, he had reference to his experience as a ‘one man band’

 

(iv)     In relation to the requirement ‘evidence of delivery of high service standards’, the claimant referred to his CV and, in particular, to all that he had set out in his CV, under his current role and activities and, in particular, his reference to ‘compliance, auditing for other IFA firms/ training and employing ARs.  Mr Deery, whose experience is based in the employment in betting shop industry, had concluded that, because auditing and training in that industry was not considered as customer service, he had concluded therefore the claimant did not satisfy the requirement; albeit he accepted in carrying out the Key Tasks referred to by the claimant in his CV, the claimant would have required to deal with clients of his business and obtaining solutions to their insurance needs.  Mr Deery accepted, in evidence, he had little knowledge of the insurance business and it was largely based on his personal dealings with mortgage advisers/insurance representatives.  However, he did not believe the work was high volume, as would be experienced               day-to-day in a betting shop.  In his opinion, it was more in the nature of dealing with one person at a time and therefore, what the claimant had stated did not persuade him the requirement was satisfied.

 

(vi)     In relation to the requirement of ‘recent customer handling experience’ the claimant again relied on what he had stated in his CV and, in particular, what he had set out in relation to his current role and activities and how, as part of this work, he was dealing with clients (ie customers) all the time as part of this work as set out in the CV.  He laid particular emphasis on the reference to ‘all new and renewal business is completed by myself’ but also what he had stated under communication skills – ‘communicating with phone and face-to-face and e-mails’.  Mr Deery simply stated, in evidence, he did not take from those references the claimant had satisfied this requirement.

 

(vii)    The claimant had in his CV referred to planning his day to maximise the amount of work achieved and, in particular, his willingness to work longer hours in order to achieve his aims and objectives.  However, Mr Deery did not equate this to his requirement of flexible work shifts, merely putting a question mark on the matrix.  In this context, it must be noted there was no reference at all in the advertisement to flexible work shifts.

 

2.25    In broad terms, in concluding the claimant was not able to be shortlisted, Mr Deery also said he did not consider, on his reading of the claimant’s application form and CV, the claimant had given enough information to allow him to tick against at least five of the requirements, as set out in the matrix, and he therefore could not be shortlisted.

 

2.26    In relation to the external applicants, the claimant at the conclusion of his                evidence-in-chief stated he wished, for the purposes of his claim, to rely, in particular, on the first three requirements, namely the two educational requirements and evidence of computer skills (see later in relation to the internal claimants).

 

2.27    In relation to the educational requirements of GCSE Maths B and GCSE English B as set out in the short listing matrix for the external applicants, there were many examples of external applicants who did not satisfy either one or both but Mr Deery stated provided they satisfied at least five of the remaining criteria, they were shortlisted by him.  In this context, Mr Deery accepted the advertisement had stated you have to be qualified with at least GCSE Grade B in Maths and English; but, despite this, failure to satisfy both educational qualifications was not a bar for him to shortlist an applicant, provided five of the other requirements were satisfied.  There was no evidence any external applicants with less than five ticks were shortlisted other than MMcK (see later).

 

          In the above context, by way of example, applicant GC (aged 27) was noted not to have GCSE English B; but satisfied the other requirements, including managed staff/team, worked as part of shop team environment, which was not surprising since he had been working for another betting organisation outside Northern Ireland.  By way of contrast, applicant SB (aged almost 20) satisfied the educational requirements but only satisfied, as well, ‘evidence of computer skills, evidence of delivery of high service standards and flexible work shifts’; but not managed staff/team and worked as part of shop team environment.  Mr Deery accepted this was a borderline case, given the failure to satisfy these two                     ‘work-related requirements’ but said his uncertainty was probably reflected by his initial question mark and then Y, when deciding to shortlist him.

 

          Further, applicant AW (aged 32), interestingly, was found to have satisfied the educational requirement on the basis of ‘Irish equivalent’ but in any event was also found to have satisfied the other requirements.  In relation to this applicant,             Mr Deery was prepared to consider equivalent educational qualifications in order to satisfy the criteria; but had not done so in the case of the claimant (see before).

 

          Applicant BD (aged 33) was noted not to have the necessary educational qualifications; but he again satisfied the other requirements, given his previous experience in the betting industry.  A similar position was adopted by Mr Deery in respect of applicant JD (aged 49), who did not satisfy the educational requirements at all, but satisfied the other requirements.

 

          Applicant RK (aged 32) was noted on the matrix to have a C in GCSE Maths and B in English whereas his applicant form stated B/C in English.  However, Mr Deery, again, was satisfied the other requirements had been satisfied, including computer skills.  Applicant MMcK, [aged 23], had only a C in Maths and English GCSE.  He did not get a tick for either evidence of computer skills or managed staff/team.  He satisfied the remaining four requirements.  Mr Deery was unable to explain satisfactorily how this applicant, who did not satisfy all the five requirements, was still shortlisted; but suggested it was because of his considerable experience in shop/ supermarket environment he shortlisted him; albeit he accepted the advertisement said experience was not necessary as training would be provided.  Similarly, applicant JC, (aged 29), was shortlisted, although he had a C in English and Maths GCSE but again Mr Deery shortlisted him because he satisfied the other requirements based on his previous shop retain experience.

 

2.28    Of the 18 external applicants who were shortlisted for interview, four did not attend for interview, and one cancelled the interview; eight were unsuccessful.  One of the applicants who attended for interview was not offered the post of manager; but was offered, following interview, the post of cashier.  At the time of short listing, this applicant EMcC, who was aged 21 did not satisfy the educational requirements but did satisfy the remaining requirements; but Mr Deery had noted on the matrix she might be suitable as a cashier.  At interview it was noted she lacked management experience but had good cash-handling customer service experience.  Four external applicants were offered the position of manager, of which two accepted the position.

 

2.29    As stated previously, all the six internal applicants were shortlisted for interview.  Further, unlike the external applicants none filled in an applicant form for this post but at interview, previous application forms used by the applicants to gain positions in the respondent were in the possession and considered by the interview panel of Mr Deery and Ms McKee.  The interviews of internal applicants were carried out on 16 January 2013, following the completion of the interviews for the external applicants.

 

2.30    For the interview for both the internal and external applicants, the panel members took notes and filled out an interview rating form, which was headed:-

 

                    “Characteristic; rating; L = Low; and comments on rating”

 

          The characteristics were stated to be:-

 

“Appearance/Disposition’;

 

Education/Qualifications/Training;

 

Skills/ Knowledge; Experience;

 

Personality; Special Circumstances”

 

          The following note was contained on the form:-

 

“The weighting of the scores should be amended to sort the requirements of the vacancy to be filled as detailed in the job specification.”

 

          It concluded with a section headed ‘Recommendations and Reasons’.

 

2.31    This was a standard form, apparently provided by Peninsula.  There was no job specification and the specific rating was not noted by the panel under each characteristic for all applicants.  For some applicants no rating was given and there was no discussion by the panel about how any such rating was to be applied by the panel.  Mr Deery was unable to give any explanation where no rating had been stated on the form.  There was no mark frame or anything of that nature prepared by the panel for this recruitment exercise.  There was no list of questions and the tribunal concluded, different questions would have been asked of the applicants who were interviewed after consideration of the panel notes of the interview.  It was apparent from these comments what questions were asked depended on the applicant form of the external applicants and in relation to the internal applicants what was known to the members of the panel of the applicants’ work for the respondent.

 

2.32    In relation to the internal applicants, all of whom were shortlisted, four were offered the position of manager, two were not.  Of those offered the position the following is noted:-

 

(i)       In relation to applicant SD (aged 25) it was apparent from her previous application form she did not have B in English and Maths GCSE.  She was offered the position, after the panel noted, in the rating form, although she was Grade C English and D in Maths, she had proved accurate with all aspects of shop accounting and daily administration and reference was made to her acting as relief manager.  The panel concluded ‘she was now ready for progressing to the full managerial role’.  Mr Deery accepted this decision was based on her work performance whilst employed by the respondent.

 

 (ii)     In relation to applicant JG, who was almost 21, his previous application form stated he had Maths B and English B.  Mr Deery said he assumed they were GCSEs.  Again, the conclusion of the panel, as set out in the rating form, was that the applicant was ready to progress with the respondent and from the comments on the rating form, as confirmed by Mr Deery in evidence, the offer of appointment for the post of manager was based on his good work experience, of which they were aware, in the employment of the respondent.  Mr Deery noted this applicant was doing an NVQ training in customer service, and believed a part of that qualification included English and Maths.

 

(iii)      Mr Deery, in his evidence, emphasised to the tribunal that all the applicants at interview were assessed individually and, as far as he was concerned, were not in competition with each other and, if assessed as successful, were appointed.  He frankly accepted not every aspect of the interview was documented but maintained the interview rating form reflected a general feel for the interview and what the panel ascertained about an individual’s working experience, which in the case of internal applicants was easily validated, based on the panel’s own knowledge of work performance with the respondent.

 

(iv)      In relation to applicant JMcM, aged 24, he had previously failed to be appointed to the position of manager.  Although it was noted he did not have the required passes in Maths and English [tribunal’s emphasis], for which he was given a rating of 8.  It was stated he had proved to be administratively sound and all accounting had been accurate but it was concluded he was now ready to progress; which conclusion was based on the experience gained since his last application in accounting, housekeeping and managing a small team.  Again, in this rating form, the educational qualifications were stated to be required, which has to be contrasted with Mr Deery’s evidence to the tribunal, set out elsewhere in this decision.

 

(v)      In relation to applicant MW, aged 24, he wrote a letter asking to be considered for the position, as stated previously, having been asked to do so by Ms McKee.  In the interview rating form it was noted he had two Cs in GCSE in English and Maths, which was described as adequate [tribunal’s emphasis], but he was still given a rating of nine.  Again it is apparent from the interview rating form, the panel concluded he should be offered the position of manager, based on his experience in the company and he deserved to progress given his enthusiasm and interest in the company.

 

2.33    In relation to the internal applicants who were not offered the position after interview, both again were in their 20s.  Applicant JB (aged almost 23) did not satisfy the educational qualifications (Maths E, English F) as noted on the rating form; but was still rated as five.  However it is apparent, from the rating form, his failure to be offered the position related to the panel’s knowledge of his work experience and their belief he was not ready to progress.  In particular, although he had done some shop opening duties it was considered by the panel he was not ready for unsupervised work.  Applicant CL (aged 27) did not have the educational qualifications but it is apparent from the outing form that was not the main reason for the failure to offer him the post.  It was again based on the panel’s knowledge of his work and that she was not ready to progress at that time.  It was noted, in particular, she had come on well with all aspects of cashiering but lacked authority which might lead to problems managing a small team.

 

2.34    Of the external applicants who were shortlisted for interview and after interview offered a post the following is noted:-

 

(i)       Applicant DH (aged 26), was noted to have a B in GCSE Maths and an A in English.  He had not shown on his applicant form evidence of computer skills but received a tick for the remaining requirements on the matrix.  He had experience in a shop retail environment, as set out in his application form.  In the rating form he is noted to have retail/customer service experience and some managerial training.  The panel concluded he ‘showed maturity at interview to deal with the pressures of a three month intensive training course and could envisage this candidate commanding the necessary authority to be successful’.  Although he was offered the post he did not accept.

 

(ii)     In relation to applicant CMcG, (aged 24) he had both of the educational qualifications.  His background was as a personal trainer but it was noted on the rating form he had some accounting and office and administrative experience together with some retail and some supervisory experience.  It was noted also he demonstrated at interview, by example, skills required for managing a team.  His solid education and mature outlook were also noted as the reason for the job offer, which he accepted.

 

(iii)     In relation to applicant BD, (aged 33) his educational qualifications were at Grade C.  However it is apparent from the rating form that his previous work experience in two bookmakers was crucial to his offer of appointment by the panel and his impressive performance at interview.  He did not accept the offer of appointment

 

(iv)     In relation to applicant JC, who is in his late 20s, he also did not have the educational qualifications of B in GCSE English and Maths but had a C in those subjects.  Again, from the rating form, it was apparent that relevant to the offer of appointment was his customer service, cash handling experience in a shop/retail environment in his previous employment.  Again, this offer was accepted.

 

2.35    Three of the external applicants, who were shortlisted, but not successful at interview, were aged in their early 50s.

 

3.1     Legislation

 

(1)      Employment Equality (Age) Regulations (Northern Ireland) 2006 (‘The Age Regulations’):-

 

                              Regulation 3 :

 

(1)      For the purposes of these Regulations a person (‘A’) discriminates against another person (‘B’) if –

 

(a)      on the grounds of B’s age A treats B less favourably than he treats or would treat other persons, or

 

                                        ...;

 

and A cannot show the treatment ... to be a proportionate means of achieving a legitimate aim.

 

(2)      A comparison of B’s case with that of another person under Paragraph (1) must be such that the relevant circumstances in the one case are the same or not materially different in the other.

 

(3)      In this Regulation –

 

                              ...

         

(b)      the reference in Paragraph (1)(a) to B’s age includes B’s apparent age.”

 

                              Regulation 7 :

 

(1)      It is unlawful for an employer, in relation to employment by him at an establishment in Northern Ireland, to discriminate against a person –

 

(a)      in the arrangements he makes for the purposes of determining to whom he should offer employment; or

 

(b)      in the terms in which he offers that person employment; or

 

(c)      by refusing to offer, or deliberately not offering him employment.”

 

                              Regulation 42 – Burden of proof

 

                              ...

 

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

 

(a)      has committed against the complainant an act to which Regulation 41 applies (Jurisdiction of Tribunals); or ...

 

(b)      is by virtue of Regulation 26 (liability of employers and principals) or Regulation 27 (aiding unlawful acts) to be treated as having committed against the complainant such an act;

 

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

 

                              Regulation 46 - Help for persons in obtaining information etc –

 

(1)      In accordance with this Regulation, a person (the person aggrieved) who considers he may have been discriminated against ... in contravention of these Regulations may serve on the respondent to a complaint presented under Regulation 41 (Jurisdiction of Tribunals) ... questions in the form set out in Schedule 2; and the respondent may if he so wishes reply to such questions by way of the form set out in Schedule 2.

 

(2)      Where the person aggrieved questions the respondent (whether in accordance with Paragraph (1) or not) –

 

(a)      the questions, and any reply by the respondent, whether in accordance with Paragraph (1) or not shall, ... be admissible as evidence in the proceedings;

 

(b)      if it appears to the tribunal that the respondent deliberately, and without reasonable excuse, omitted to reply within eight weeks of the service of the questions or that his reply is evasive or equivocal, the ... tribunal may draw an inference from that fact that it considers it just and equitable to draw, including an inference that he committed an unlawful act.

 

...

(4)      In proceedings before an industrial tribunal, a question shall only be admissible in evidence in pursuance of Paragraph (2)(a) –

 

(a)      where it was served before a complaint had been presented to the tribunal, if it was so served –

 

(i)       within the period of three months beginning when the act complained of was done ...

 

(b)      Where it was so served when a complaint had been presented to the tribunal either –

 

(i)       if it was so served within the period of 21 days beginning with the day on which the complaint was presented.

 

                                                  ... .”

 

(2)      Race Relations (Northern Ireland) Order 1977 (‘the 1997 Order’):-

 

                              Article 3 :

 

(1)      A person discriminates against another in any circumstances relevant for the purposes of any provision of this Order if –

 

(a)      on racial grounds he treats that other less favourably than he treats or would treat other persons.”

 

                              Article 5 :

 

                              (1)      Subject to Paragraph (2) and (3) in the Order –

 

‘Racial grounds’ means any of the following grounds, namely colour, race, nationality or ethnic or national origins.”

 

                              Article 6 :

 

(1)      It is unlawful for a person, in relation to employment by him at an establishment in Northern Ireland to discriminate against another –

 

(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 him that employment; or

 

(c)      by refusing or deliberately omitting to offer him that employment.

 

                                        ... .”

 

                              Article 52A – Burden of proof :

 

                                        ...

 

(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 such an act of discrimination ... against the complainant;

 

(b)      is by virtue of Article 32 or 33 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, as the case may be, is not to be treated as having committee that act.

 

... .”

 

                              Article 63 – Help for aggrieved person in obtaining information:-

 

(1)      With a view to helping a person (the person aggrieved) who considers he may have been discriminated against ... in contravention of this Order whether to institute proceedings and, if he does so, to formulate and present his case in the most effective manner, the Department may prescribe –

 

(a)      forms by which the person aggrieved may question the respondent on his reasons for doing any relevant act or on any other matter which is or may be relevant, and

 

(b)      forms by which the respondent may if he so wishes reply to any questions.

 

(2)      Where the person aggrieved questions the respondent (whether in accordance with an Order under Paragraph (1) or not) –

 

(a)      the question, and any reply to the respondent (whether in accordance with such an Order or not) shall ... be admissible as evidence in the proceedings;

 

(b)      if it appears to the ... tribunal that the respondent deliberately, and without reasonable excuse omitted to reply within a reasonable period or, where the questions relates to discrimination on grounds of race or ethnic or national origins ..., the period of eight weeks beginning with the day on which the question was served on him or that his reply is evasive or equivocal, the ... tribunal may draw any inference that he committed an unlawful act.

 

                                        ... .”

 

Under the Race Relations (Questions and Replies) Order (Northern Ireland) 1997, as amended, similar time-limits for service of the questionnaire, for it to be admissible in evidence, are set out, to those contained in Article 46(4) of the Age Regulations.

 

3.2     In relation to the burden of proof provisions set out in Article 63A of the 1976 Order, the English Court of Appeal in the case of Igen  v  Wong [2005] IRLR 258, considered similar provisions, applicable under the legislation applying in Great Britain and, approved, with minor amendment, the guidelines set out in the earlier decision of Barton  v  Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332.  In a number of decisions, the Northern Ireland Court of Appeal has approved the decision of Igen  v  Wong [2005] IRLR 258 and the said               two-stage process to be used in relation to the burden of proof (see further Brigid McDonagh & Others  v  Samuel Thom t/a The Royal Hotel Dungannon [2007] NICA 1 and other decisions referred to below.)  The decision in Igen  v  Wong [2005] IRLR 258 has been the subject of a number of further decisions in Great Britain, including Madarassy  v  Nomura International PLc [2007] IRLR 246, a decision of the Court of Appeal in England and Wales, and Laing  v  Manchester City Council [2006[ IRLR 748, both of which decisions were expressly approved by the Northern Ireland Court of Appeal in the case of Arthur  v  Northern Ireland Housing Executive & Another [2007] NICA 25.  (See further the recent Supreme Court decision in the case of Hewage  v  Grampian Health Board [2012] UKSC 37, in which the Supreme Court approved the guidance in Igen and followed in subsequent case law, such as Madarassy [see below].), and where it did not consider any further guidance was necessary.  It also emphasised it was not necessary to make too much of the role of the burden of proof provisions; they required careful attention where there was room for debate as to the facts necessary to establish discrimination but they had nothing to offer where the Tribunal was in a position to make positive findings on the evidence one way or the other. 

 

          In Madarassy  v  Nomura International PLC [2007] IRLR 246 the Court of Appeal held, inter alia, that:-

 

“The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment.  Those bare facts only indicate a possibility of discrimination.  They are not, without more [tribunal’s emphasis], sufficient material from which a Tribunal could conclude that on the balance of probabilities the respondent had committed an unlawful act of discrimination – could conclude in Section 63A(2) must mean that ‘a reasonable Tribunal could properly conclude from all the evidence before it.  This would include evidence adduced by the claimant in support of the allegation of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment.  It would also include evidence adduced by the respondent contesting the complaint.  Subject to the statutory absence of an adequate explanation at this stage the Tribunal needs to consider all the evidence relevant to the discrimination complaint, such as evidence to whether the act complained of occurred at all, evidence as to the actual comparators relied upon by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the claimant were of like with like as required by Section 5(3) and available evidence for the reasons for the differential treatment.  The correct legal position was made plain by the guidance in Igen  v  Wong.  Although Section 63A(2) involves a two-stage analysis of the evidence, it does not expressly or impliedly prevent the Tribunal at the first stage, from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing or rebutting the claimant’s evidence of discrimination … .”

 

3.3     In relation to what is to be included by the expression ‘something more’ – guidance is to be found in the judgment of Elias J in The Law Society  v  Bahl [2003] IRLR 640, which judgment was approved by the Court of Appeal (see [2004] IRLR 799). 

 

In Paragraph 94 of his judgment, Elias J emphasised that unreasonable treatment is not of itself a reason for drawing an inference of unlawful discrimination when he stated:-

 

“94.    It is however a wholly unacceptable leap to conclude that whenever the victim of such conduct is black or a woman that it is legitimate to infer that our unreasonable treatment was because the person was black or a woman.  All unlawful discriminatory treatment is unreasonable, but not all unreasonable discriminatory treatment is discriminatory, and it is not shown to be so merely because the victim is either a woman or of a minority race or colour.  In order to establish unlawful discrimination it is necessary to show that the particular employer’s reason for acting was one of the proscribed grounds.  Simply to say that the conduct was unreasonable tells us nothing about the grounds for acting in that way.  The fact that the victim is black or a woman does no more than raise the possibility that the employer could have been influenced by unlawful discriminatory consideration.  Absent some independent evidence supporting the conclusion that this was indeed the reason, no finding of discrimination can possibly be made.

 

 96.    ... Nor in our view can Sedley LJ (in Anya  v  University of Oxford) be taken to be saying that the employer can only establish a proper explanation if he shows that he in fact behaves equally badly to members of all minority groups.  The fact that he does so will be one way of rebutting an inference of unlawful discrimination, even if there are pointers which would otherwise justify that inference.  ...  No doubt the mere assertion by an employer that he would treat others in the same manifestly unreasonable way, but with no evidence that he had in fact done so, would not carry any weight with a tribunal which is minded to draw the inference on proper and sufficient grounds that the cause of the treatment has been an act of unlawful discrimination.”

 

In particular, in Paragraph 101 of Elias J’s judgment  explained that unreasonable conduct is not necessarily irrelevant and may provide a basis for rejecting an explanation given by the alleged discriminator but then added these words of caution:-

 

“The significance of the fact that the treatment is unreasonable is that a tribunal will more readily in practice reject the explanation, given that it would if the treatment were reasonable.  In short, it goes to credibility.  If the tribunal does not accept the reason given by the alleged discriminator, it may be open to it to infer discrimination.  But it will depend upon why it has rejected the reason he has given, and whether the primary facts it finds provide another and cogent explanation for the conduct.  Persons who have not discriminated on the proscribed grounds may nonetheless give a false reason for the behaviour.  They may rightly consider, for example, that the true reason costs then in a less favourable light, perhaps because it discloses incompetence or insensitivity.  If the findings of the tribunal suggest there is such an explanation, then the fact that the alleged discriminator has been less than frank in the witness box when giving evidence will provide little, if any, evidence to support finding of unlawful discrimination itself.”

 

          At Paragraph 113 of his judgment, he also stated:-

 

“There is an obligation on the tribunal to ensure that it has taken into consideration all potentially relevant non-discriminatory factors which might realistically explain the conduct of the alleged discriminator ... .”

 

          At Paragraph 220 he confirmed:-

 

“An inadequate or unjustified explanation does not of itself [tribunal’s emphasis] amount to a discriminatory one.”

 

In the recent decision in the case of The Solicitors Regulation Authority  v  Mitchell [2014] UKEAT/0497/12, this guidance was summarised in the following way (Paragraph 46):-

 

“(i)      In appropriate circumstances the ‘something more’ can be an explanation proffered by the respondent for the less favourable treatment that is rejected by the Employment Tribunal.

 

 (ii)     If the respondent puts forward a false reason for the treatment but the Employment Tribunal is able on the facts to find another                   non-discriminatory reason, it cannot make a finding of discrimination.”

 

Determining when the burden of proof is reversed can be difficult and controversial as illustrated in the following decisions.  In Maksymiuk v Bar Roma Partnership  [UKEATS/0017/12], when Langstaff P at Paragraph 28 said:-

 

“The guidance in Igen  v  Wong has been carefully refined.  It is an important template for decision-making.  As Laing and Madarassy have pointed out however, a tribunal is not required to force the facts into a constrained cordon where in the circumstances of the particular case they do not fit it.  That would not to be apply the words of the statute appropriately.  Intelligent application of the guidance, rather than slavish obedience where it would require contorted logic, is what is required.”

 

Further, in Birmingham City Council  v  Millwood [2012] UKEAT/0564, Langstaff P stated:-

 

“26     What is more problematic is the situation where there is an explanation that is not necessarily found to be a lie but which is rejected as opposed to one that is simply not regarded as sufficiently adequate.

 

Realistically, it seems to us that, in any case in which an employer justifies treatment that has a detrimental effect as between a person of one race and a person or persons of another by putting forward a number of inconsistent explanations which are disbelieved (as opposed to not being fully accepted) there is sufficient to justify a shift of the burden of proof.  Exactly that evidential position would have arisen in the days in which King  v  Great Britain – China Centre [1992] ICR 516 was the leading authority in relation to the approach should take to claims of discrimination.  Although a tribunal must by statute ignore whether there is any adequate explanation in stage one of its logical analysis of the facts, that does not mean, in our view, to say that it can and should ignore an explanation that is frankly inadequate and in particular are that is disbelieved.

 

27     ... to prefer one conclusion rather than another is not, as it seems to us, the same as rejecting a reason put as being simply wrong.  In essence, the tribunal in the present case appeared not to believe at least two of the explanations that were being advanced to it, and there were, we accept from what Mr Swanson has said, some three inconsistent explanations put forward for the difference in treatment that constituted the alleged discriminatory conduct.”

 

On the facts of the case, in the Solicitors Regulation Authority case, it was found that a false explanation for the treatment was given by the respondent’s witness, which was found to lack credibility and could therefore constitute the ‘something more’; and the tribunal, having reversed the burden of proof, in the circumstances, was able to properly infer discrimination:-

 

“The tribunal asked the reason why the claimant had been treated as she was.  It was not simply a question of the respondent putting forward no explanation but having given a false explanation.  This was clearly capable of being ‘something more’ ... .”

 

This issue again arose in a further recent decision by the Employment Appeal Tribunal in the case of Veolia Environmental Services UK  v  Gumbs [UKEAT/0487/12] where the EAT recognised Igen, Madarassy and Hewage:-

 

“all exhibit the same tension; how to recognise the difficulty of proving discrimination on the one hand, whilst at the same time not stigmatising as racially discriminatory conduct which is simply irrational or unreasonable, on the other ... .”

 

It held, as set out in the head note of the judgment, it did not accept that Madarassy and Hewage supported the submission that an employer should not have the burden of proof reversed and be required to give a non-discriminatory explanation for its conduct in demoting an employee or denying the employee an opportunity to qualify to do different work where inconsistent explanations for the reason for the demotion had been given and an unacceptable account of knowledge of the ambition to qualify had been given.  Whilst the substance of the explanation should be excluded from consideration when deciding whether the burden of proof should be reversed the fact that explanations had been given which were inconsistent could be taken into account.  When an account of lack of knowledge as to the employee’s ambition to qualify for different work had been contradicted by other evidence that was a factor to be considered in deciding whether the burden of proof had shifted.

 

3.4     In the case of Curley  v  Chief Constable of the Police Service of Northern Ireland and Another [2009] NICA 8, the Northern Ireland Court of Appeal approved the judgement of Elias LJ in Laing, which was also referred to with approval by Campbell LJ in the Arthur case, that it was not obligatory for a tribunal to go through the steps set out in Igen in each case; and also referred to the opinion of Lord Nicholls in Shamoon  v   Chief Constable of the Royal Ulster Constabulary [2003] NI 147, where he observed at paragraph 8 of his opinion, as follows:-

 

                    “Sometimes a less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue”.

 

          Lord Nicholl’s opinion in the Shamoon case made clear the normal two step approach of Tribunals in considering, firstly, whether the claimant received less favourable treatment than the appropriate comparator, which can include an actual or hypothetical comparator, and then, secondly whether the less favourable treatment was on the proscribed ground, can often be avoided by concentrating on why the claimant was treated as he/she was; and was it for the proscribed reason or for some other reason.  If the latter, the application fails.  If the former, there would normally be no difficulty in deciding whether the less favourable treatment, afforded to the claimant on the proscribed ground was less favourable than was or would have been afforded to others (see further Paragraph 11 of Lord Nicholls’ opinion).  Indeed, Lord Nicholls’ opinion emphasised that the question whether there had been less favourable treatment and whether the treatment was on the grounds of [sex] are in fact two sides of the same coin.

 

3.5     In Nelson  v  Newry and Mourne District Council [2009] NICA 24, Girvan LJ referred approvingly to the decisions in Madarassy and Laing and also held that the words ‘could conclude’ are not to be read as equivalent to ‘might possibly conclude’.  He said “the facts must lead to the inference of discrimination”.  He also stated:-

 

“24.    This approach makes clear that the complainants allegation of unlawful discrimination cannot be used in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination.  The whole context of the surrounding evidence must be considered in deciding whether the tribunal could probably conclude in the absence of an adequate explanation that the respondent has committed an act of discrimination.  In Curley  v  Chief Constable the Police Service of Northern Ireland and Another [2009] NICA 8, Coghlin LJ emphasised the need for a Tribunal engaged in determining this type of case to keep in mind the fact that claim put forward is an allegation of unlawful discrimination.  The need for the Tribunal to retain such a focus is particularly important when applying the provisions of Article 63 A.  The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”

 

3.6     Coghlin LJ, in the case of Curley, also referred to the well known dicta of Carswell LCJ, as he then was, in the Sergeant A case, which also emphasised the necessity for the tribunal to look at the matter, in the light of all the facts as found:-

 

“3.      Discrepancies in evidence, weaknesses and procedures, poor record keeping, failure to follow established administrative processes or a satisfactory explanation from an employer may all constitute material from which an influence of religious discrimination may legitimately be drawn.  But Tribunals should be on their guard against the tendency to assume that every such matter points towards a conclusion of religious discrimination, especially where other evidence shows such a conclusion is improbable on the facts.”

 

          Although, both the Curley and Sergeant A cases were dealing with issues of religious discrimination, the dicta is also relevant, in the judgment of the tribunal, to determination of claims of discrimination pursuant to the Age Regulations and/or 1997 Order, as amended and the other discrimination legislation and the interpretation of the relevant provisions relating to the burden of proof provisions, in the case law, referred to above, from the Employment Appeal Tribunal and the Court of Appeal of England and Wales . 

 

3.7     It can occur, in certain circumstances, that there is found to be more than one reason for the discriminator’s actions.

 

          In O’Neill  v  Governors of St Thomas More Upper School [1996] IRLR 372, Mummery J suggested a tribunal’s approach to the question of causation should be simple, pragmatic and commonsensical and that, from the whole complex of facts what is the ‘effective and predominant cause’ or the ‘real and efficient cause’ of the discriminatory act complained of.

 

          In Nagarajan  v  London Regional Transport, a race case, [2000] AC 501, Lord Nicholls said:-

 

“Decisions are frequently reached for more than one reason.  Discrimination may be on racial grounds even though it is not the sole ground for the decision.  A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases; discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reasons, an important factor.  No one phrase is obviously preferable to all others, although in the application of this legislation, legalistic phrases, as well as subtle distinctions are better avoided so far as possible.  If racial grounds had a significant influence on the outcome, discrimination is made out.”

 

          In Igen  v  Wong, the dicta of Lord Nicholls in Nagarajan were found to be by the Court of Appeal to be not substantially different to the formulation ‘no discrimination whatsoever’ (see Barton).

 

          A significant influence is an influence which is more than trivial.

 

          In Law Society  v  Bahl [2003] IRLR 640, a case of sex and race discrimination, Elias J gave this guidance:-

 

“But if the evidence does not satisfy the tribunal that there is discrimination on grounds of race or on grounds of sex, considered independently, then it is not open to a tribunal to find either claim satisfied on the basis there is nonetheless discrimination on grounds of race and sex when both are taken together.  That would fail to give effect to the fact that the burden of proof is on the applicant.  Nor can the tribunal properly conclude, if it is uncertain about whether it is race or sex, that it would find both.”

 

3.8     As referred to previously, under the Age Regulations, unlike other                               anti-discrimination legislation, direct age discrimination can be justified in certain circumstances (see Article 3 of the Age Regulations) – namely:-

 

                    “If it is a proportionate means of achieving a legitimate aim.”

 

          The burden of proof is on the respondent to establish justification (see further MacCulloch  v  ICI PLc [2008] ICR 1334).

 

          In Ministry of Defence  v  O’Brien [2013] IWLR 522, the Supreme Court confirmed:-

 

                    “Budgetary considerations cannot justify discriminatory treatment”

 

          and that a discriminatory rule or practice can only be justified by a reference to a legitimate aim other than the simple saving of cost and this confirmed the so-called ‘costs plus’ rule applies to cases of direct age discrimination (see further Woodcock  v  Cumbria Primary Care Trust [2012] IRLR 491).

 

          The principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the reasonable needs of the undertaking.

 

          This issue of justification, in the context of direct age discrimination, has also recently been considered by the Supreme Court in the case of Seldon  v  Clarkson Wright and Jakes [2012] IRLR 591.  In that case it was held:-

 

“Direct age discrimination may only be justified if it seeks to achieve a legitimate aim of a public interest nature, such as one related to employment policy, the labour market and vocational training ... .

 

 

           ...

 

To determine whether direct age discrimination is justified, it is necessary to examine whether the aim is identified in the particular circumstances of the employment concerned and that the means chosen are both appropriate and necessary ... .”

 

As was made clear in Seldon, it is necessary to have factual evidence to support a justification argument.  The Supreme Court accepted, however, that concrete evidence may not always be necessary to establish justification, which can be established, in an appropriate case, by reasoned and rational argument; but what is not permissible is a justification based simply on subjective impression or stereotypical assumptions.

 

3.9     In relation to the questionnaire procedure, it has long been established that the statutory procedure was the way in which the legislature has made provision for a claimant to advance his or her case of unlawful discrimination; and tribunals should take a serious view of any unsatisfactory answering of questionnaires and have ample power to draw adverse inferences (see Carrington  v  Helix Lighting Ltd [1990] IRLR 6 and Dattani  v  Chief Constable of West Mercia Police [2005] IRLR 327).

 

          However in the case of D’Silva  v  NATFHE, the Employment Appeal Tribunal stated in valuable guidance:-

 

“There is a tendency for respondent’s failures in answering a questionnaire, or otherwise in providing information or documents to be relied on by claimants and even sometimes by tribunals, as automatically raising a presumption of discrimination.  An inference can be drawn from failures of this kind only in appropriate cases, and the drawing of inferences from such failures is not a tick-box exercise.  It is necessary in each case to consider whether the failure in question is capable of constituting evidence supporting the inference that the respondent acted discriminatorily in the manner alleged; and if so whether in light of any explanation supplied it does in fact justify that inference.  Such failures are only relevant to the extent they potentially shed light on the actual discrimination complained of and thus, necessarily on the mental processes of the decision-maker.  There will be many cases where it should be clear from the start, or soon becomes evident, that any alleged failure of this kind, however reprehensible, can have no bearing on the reason why the respondents did the act complained of.”

 

4.1     In light of the facts as found by the tribunal and after applying the legislative provisions and the guidance set out in the legal authorities referred to in the previous paragraphs of this decision, the tribunal reached the conclusions, as set out in the following sub-paragraphs.

 

4.2     The tribunal had considerable concerns about this whole recruitment process adopted by the respondent, and conducted, in particular, by Mr Deery:-

 

(i)       Mr Deery maintained he had considered the recruitment of applicants, both external and internal, as part of one process; and had done so by trawling internally at the same time as the advertisement for external applicants, using the advertisement as part of the internal trawl, because he wished to give both external and internal applicants equal opportunity to be selected for the advertised post.  If this was his intention, in the tribunal’s view, he singularly failed to do so.  The process for the internal applicants, in comparison to the process for the external applicants, was, in reality, very different.  In particular, internal applicants did not have to fill out application forms or CVs to be considered for selection.  Essentially, expression of interest or recommendation by the area manager were sufficient for internal applicants.  There was no formal short listing and certainly the internal applicants were not subject to the short listing process used for external applicants.  In essence, the internal applicants were shortlisted for interview, regardless of their educational achievements, as it was assumed by Mr Deery that each internal applicant satisfied the other requirements, which were part of the short listing matrix for the external applicants, because of their internal roles for the respondent.  Having made this assumption, the internal applicants were then subject to interview, like the shortlisted external applicants.  The tribunal found it difficult to understand, if the respondent wished to recruit both internal and external applicants and there was in fact no fixed number of vacancies for this recruitment exercise as, had been suggested in error by the respondent’s representative at an earlier Case Management Discussion, why the respondent had not carried out initially the internal trawl and interviews and then, if it had wished to do so, carried out a recruitment exercise for external applicants.  If Mr Deery had done so or had conducted the same selection process for both internal and external applicants, many of the difficulties and concerns that have arisen in these proceedings might have been avoided.

 

(ii)      Further, the advertisement, which was drawn up by Mr Deery, was drawn up without proper regard to the basis upon which he shortlisted the external applicants, as set out in his short listing matrix.  Significantly, the advertisement made clear previous experience working in a betting shop was not required, as training would be provided but this was not taken into account considering an application form/CV of an external applicant, like the claimant, who did not have such experience (see later).  The advertisement did, albeit in very general terms, indicate that the respondent was seeking applicants interested in or used to working in a small team/            shop-based environment, were self-motivated, driven, demand high standards of others, can live up to high standards demanded on this key management position and were capable of delivering high standards and able to get results from shop teams.  This phraseology pointed more to desirable requirements for the post rather than essential requirements for the post.  However, the advertisement did state that:-

 

“You have to be qualified with at least GCSE Grade B in Maths and English with some computer skills.”

 

This phraseology was in the nature of an essential requirement for the post; but, in fact, these requirements were not essential requirements for the post for either the external or the internal applicants.  There was no reference at all in the advertisement to flexible work shifts, which was one of the requirements on the short listing matrix drawn up by Mr Deery.  Of course, the lack of necessary precision in the advertisement was faced by all the external applicants, as none knew the requirements that were to be adopted by Mr Deery in his short listing matrix.  Where advertisements do not actually reflect the requirements set out in a short listing matrix, it makes it much more difficult for an applicant to demonstrate for a short listing exercise, which is on paper, that he/she should be shortlisted for interview.  It was apparent to the tribunal that, regardless of the terms of the advertisement, Mr Deery at all times had a picture in his head of the kind of applicant he was looking for.  As he stated, in evidence:-

 

“He had an expectation he would get external applications from existing betting shop managers but also applicants from people working in a shop-based environment and primarily from people in the shop/retail sector wanting to transfer to a betting organisation or applicants from assistant manager level and other betting organisations looking to progress to management level.”

 

Significantly, this was not the relevant background of the claimant.  Although the advertisement had stated experience of working in a betting shop was not necessary, as training would be provided, which no doubt was accurate in itself; but it did not set out the full picture of what was expected by Mr Deery and which expectation clearly influenced him in choosing the said requirements on the short listing matrix for the purposes of selecting applicants for interview.  A more focused and accurate advertisement, drawn up in light of that expectation, would have been fairer to all the external applicants, including the claimant.  The internal applicants, although the advertisement had been used for the internal trawl, immediately had an advantage over the external applicants, based on that expectation of Mr Deery.

 

(iii)      In drawing up his short listing matrix and the requirements set out therein, Mr Deery did so based on the standard form provided to him by Peninsula, which has considerable experience and expertise in advising employers about such recruitment exercises.

 

Undoubtedly, such standard forms have their place in recruitment exercises.  However, they must be used properly and, in particular, having regard to the advertisement and what requirements are set out therein.  In this particular case, other than supplying the standard form matrix, it does not appear that Peninsula gave Mr Deery any relevant advice or assistance in drawing up either the advertisement or the said requirements.  The form stated the eight specific requirements had been taken from the personnel specification.  Again, there was no such personnel specification drawn up.  If there had been, the tribunal is satisfied it would have guided not only the terms of the advertisement but also the terms of the said requirements.  Despite the wording of the advertisement, the educational requirements and the requirement of some computer skills were not in fact essential requirements.  It was enough for Mr Deery if an applicant satisfied five out of the eight requirements – even if those did not include the educational/computer skills requirements.  The remaining requirements adopted by Mr Deery were clearly based on his expectation of the sort of applicant he wished to have for this post of betting shop manager.

 

4.3     The claimant was not shortlisted for interview.  Naturally, he was very disappointed when he received his rejection letter, dated 12 April 2013, from Mr Deery, as he had had high expectations he would at least have been shortlisted for interview and, after that interview, hopefully offered the position of betting shop manager.  The rejection letter, as is often the case, gave no reason for his failure to be shortlisted for interview.  He sought by telephone to obtain an answer without success from the respondent.  When he did eventually speak to Mr Deery on 17 May 2013, he then wrote to Mr Deery, as Mr Deery had asked him to do, seeking reasons for his said failure.  It was not disputed that Mr Deery had agreed to reply but had not done so, for which there was no explanation given to the tribunal.  In light of his failure to reply, the claimant hand-delivered to the respondent on 8 July 2013, the race and age questionnaires.  On 9 July 2013, he presented his claim to the tribunal of race and age discrimination arising out of his failure to be shortlisted for interview and/or to be appointed, after interview, to the post.

 

          The tribunal is satisfied Mr Deery handed over to Peninsula limited paperwork, as previously described, relating to this recruitment exercise to enable Peninsula to provide response to the tribunal and a reply to the questionnaires.  He left it in to Mr Farry of Peninsula to draft the said response and replies.  There was little or no discussion between Mr Farry and Mr Deery about what should be contained in that reply.  In the circumstances, Mr Farry was clearly expected to base his response and reply on the limited paperwork provided to him by Mr Deery, in particular, the short listing matrix, the advertisement, the interview schedule and the results of those interviews.  Significantly, there was not any detailed discussion between Mr Deery and Mr Farry as to the precise reason why the claimant had been unsuccessful.  In the opinion of the tribunal, to provide a meaningful draft response or reply, without such a discussion was impossible on the basis of that limited information.  Whether reading the response or the reply to the questionnaires sent to the claimant, it is apparent that the claimant was not told the reason why he had been unsuccessful other than the provision of a number of generalised phrases in the response relating to the claimant’s competence and experience and how other applicants were better.  In the reply to the questionnaire, even less information was provided and he was merely told, as part of a composite reply to some 31 questions:-

 

“Following a full and thorough selection process the most appropriate candidates were interviewed.”

 

          Such replies, in the tribunal’s view, were most unsatisfactory and were really                 ‘non-replies’.  Mr Deery certainly read and formally approved replies before they were issued but he did so on advice from the respondent’s representative, Peninsula, whose consultant Mr Farry had drafted them for his approval.  Mr Farry did not, in his reply to the questionnaire, provide, as asked by the claimant, the specific reason for the claimant’s failure.  If a representative is to take on the task of drafting a reply to a questionnaire, which is an important part of the statutory process in connection with discrimination litigation, the representative must engage, if necessary, in discussion with those taking the decisions and he must not merely deduce a generalised reply, as here, from the limited paperwork provided.  Not having been asked by Mr Farry to engage in such discussion, it was not surprising Mr Deery therefore approved the drafts prepared for him by his representative for his approval; as he clearly assumed that was all that was required to be done by the respondent. 

 

4.4     The failure by the respondent to provide a satisfactory reply to the questionnaire amounted to, in the tribunal’s view, an evasive and/or equivocal reply because it did not provide the necessary information sought by the claimant.  The information sought by the claimant under the questionnaire procedure was relevant and focused on the recruitment exercise he had engaged in.  Indeed, the answer which was provided effectively avoided answering the questions asked by the claimant.  A composite answer to 31 detailed questions rarely, if ever, will satisfy the questionnaire procedure, which is to assist a claimant, inter alia, in deciding whether or not to proceed with his claim of unlawful discrimination, in light of the answers provided.  In the circumstances, an adverse influence could be drawn from this failure by the respondent (see Dattani).

 

          However, the tribunal decided that, in the circumstances, it would not be appropriate to do so, given the significant involvement, however unsatisfactory it was, of Peninsula/Mr Farry in drafting the reply for the approval of Mr Deery and who, by this time, were the representatives for the respondent in relation to these proceedings.  In light of this involvement by Peninsula, the tribunal was not satisfied the failures in relation to the reply shed any relevant light on the discrimination complained of and, in particular, the mental processes of the decision-maker, Mr Deery.  (See D’Silva  v  NATFHE and Paragraph 3.9 of this decision.)

 

4.5     The tribunal has no doubt that, if Mr Deery had fully and properly considered the claimant’s application form and CV, the claimant would and should have been shortlisted for interview. 

 

          In relation to the educational requirements, the claimant did not have, on the face of the application form/CV, the educational requirements of GCSE English and Maths Grade B, as he had not studied under the United Kingdom schools system.  He had studied under the French system for the International Baccalaureate.  He did not state on his application form/CV that he had studied for this exam in Egypt.  Mr Deery had no knowledge of the Baccalaureate, nor did he make any attempt to obtain such knowledge.  The tribunal considered Mr Deery was not prepared to spend the additional time necessary to do so, in circumstances where it was not obvious the claimant’s educational qualifications satisfied the requirements.  Indeed, this rush to complete the exercise was, in the tribunal’s view, a feature of the effort put into the short listing exercise by Mr Deery.  As an experienced manager, used to recruitment exercises for not only the respondent but also other employers, he should have been aware of the necessity to check whether or not a qualification set out on an application form/CV was an equivalent to the requirement stated.  The tribunal noted that Mr Deery did so, for example, for applicant AW, with reference made to ‘Irish equivalent’.  If Mr Deery had carried out the necessary checks, he would found certainly that the claimant satisfied the English qualification and probably Maths also, given the nature of the Baccalaureate.  It also is to be noted the claimant’s University qualifications, on his application form/CV.  This would also have suggested the claimant must have satisfied the said educational requirements, in order to gain entry to University.  If Mr Deery was still not sure, it might have been expected this could have been further confirmed at interview – especially since the educational requirements were not in fact essential, and that it was only necessary to be shortlisted to satisfy five out of the eight requirements.  Mr Deery had put on the matrix a question mark against the claimant’s English qualification; but was not prepared to await to confirm the position at interview. 

 

4.6     However, the tribunal had some sympathy why Mr Deery was not satisfied the claimant had satisfied the requirement ‘worked as part of a shop team environment’, as the claimant’s reference to opening his Global Property Sales and Management Office in 1994 did not suggest, as the claimant maintained, that he was working in an estate agent type office/shop.  The claimant also had referred in his application form/CV to working as a ‘one man band’, which again did not suggest a shop team environment.  However, for the purposes of the short listing exercise, which is a paper exercise and not based on an interview, the tribunal considered the claimant had stated sufficient in his application form/CV to allow him to be shortlisted in relation to the requirements of ‘evidence of delivering high service standards’ and ‘recent customer handling experience’.  The claimant’s CV, in the tribunal’s opinion, on the facts found by it, showed sufficient in relation to those requirements to enable him to have obtained the necessary ticks as part of the short listing exercise, if the CV had been considered fully and properly in relation to those requirements.  (See further Paragraph 2.24 of this decision.)  It was relevant experience gained by the claimant in the insurance industry but, as it was not in the traditional retail/          shop customer environment and therefore did not satisfy Mr Deery’s expectation of a suitable applicant, Mr Deery did not take the trouble to consider such experience further and how it might satisfy the said requirements.  The tribunal considered that he should have done so at least at the short listing stage, especially in circumstances where the advertisement had stated previous experience of working in a betting shop it was not necessary for appointment.  Given that such experience was not necessary, Mr Deery should have expected potential applicants to apply from a wide field of experience.  However, despite what the advertisement may have said, that was not in fact Mr Deery’s expectation; and he therefore applied, wrongfully in the tribunal’s opinion, the requirements on the basis of that expectation and he did not look beyond it or attempt to do so when considering the applicant’s application form/CV.

 

          Further, the claimant had referred, in particular, to a willingness to work longer hours to achieve his aims and objective.  In circumstances, where there was no reference in the advertisement to flexible work shifts, the tribunal could see no reason, if Mr Deery had properly and fully considered the claimant’s application form/CV, not to give him a tick against this requirement.  Again, it would appear     Mr Deery was looking not so much at the flexibility, which the claimant clearly had demonstrated, but merely the use of flexible work shifts in a shop type environment, which was not the claimant’s background. 

 

4.7     In these circumstances, the tribunal was satisfied the claimant should have been given at least five ticks against the said requirements on the matrix and therefore shortlisted – in particular, for equivalent English qualification, evidence of computer skills (which Mr Deery already had agreed he had), evidence of delivery of high service standards, flexible work shifts and recent customer handling skills.  Indeed, he probably should have had more, if he had been given a tick for equivalent Maths qualification. 

 

The remaining requirements of manage staff/team and worked as part of a shop team environment were more difficult, given the terms of the claimant’s CV and the absence of a retail/shop type experience, which Mr Deery was clearly looking for, despite the terms of the advertisement.  The claimant’s failure to satisfy those requirements would not have prevented him being shortlisted, if the other requirements had been properly considered, as he would then have had the necessary five ticks.

 

5.1     The tribunal, having found that there was a failure by the respondent to properly shortlist the claimant, it was then necessary for the tribunal to determine whether the claimant had shown that the tribunal could conclude, in the absence of an adequate explanation, that the respondent had acted unlawfully by discriminating against him, pursuant to his age and/or race. 

 

5.2     As found by the tribunal, Mr Deery, for whom the respondent was vicariously liable clearly made fundamental errors in relation to this short listing exercise and, in particular, his consideration of the claimant’s application form/CV.  In particular, he did not bother to find out whether the Baccalaureate qualification satisfied the equivalent educational requirements.  He wrongly did not consider whether the claimant’s experience in the insurance business matched the experience he was in fact at all times looking for, despite the terms of the advertisement for a person with retail/shop/betting shop background.  This would have taken more time but he was not prepared to give that further time, where an applicant, such as the claimant, came from a different background to what he had envisaged for this post.

 

          Taking into account the guidance of the Court of Appeal in the case of Sergeant A that:-

 

“Discrepancies in evidence, weaknesses in procedure, poor record-keeping, failure to follow established administrative process may all constitute material from which an inference of unlawful discrimination may be drawn but tribunals should be on their guard against the tendency to assume every such matter points towards a conclusion of unlawful discrimination, especially where other evidence shows such a consideration is improbable.”

 

5.3     In light of the foregoing, the tribunal was not satisfied the reason why [tribunal’s emphasis] the claimant was not shortlisted was because of discrimination on the grounds of age and/or race.  It was, in the view of the tribunal, because of the incompetence of Mr Deery in not considering fully and properly the claimant’s application form/CV, whether under pressure of time or otherwise; but, in particular, in circumstances where he was always looking for a person from shop/retail/betting shop background, despite the terms of the advertisement.  Indeed, at the interview stage, whether for the interviews of the external applicants or the internal applicants, it was this background, not the educational requirements, which essentially determined whether an applicant was offered a post.  The claimant did not have such a background and therefore was not shortlisted.  Indeed, even if the claimant had been shortlisted for interview, the tribunal is not satisfied he would have been offered a post in the absence of that background.  Those applicants who were offered the post of betting shop manager after interview, satisfied that background.

 

5.4     Further, as seen in the decision of Court of Appeal in Curley, Coghlin LJ emphasised the need for a tribunal to keep in mind that it was determining a claim of unlawful discrimination and the need to stand back and focus on the issue of discrimination.  Undoubtedly, the claimant is entitled to have a strong feeling of injustice because of the failure of the respondent to shortlist him for interview, due to the actions of Mr Deery, as outlined above.  However, standing back, the tribunal was not satisfied that the claimant had established unlawful discrimination on grounds of age and/or race.  Indeed, the tribunal is satisfied that, if Mr Deery had approached his task at the short listing stage by properly considering the application form/CV of the claimant in the manner set out previously, the tribunal has no doubt the claimant would have satisfied sufficient of the requirements in the short listing matrix to be shortlisted and would in fact have been shortlisted.  The claimant had a foreign sounding name but he never referred to the fact that he had lived in Egypt, when at school or indeed to his national origin of Egyptian.  It is correct that Mr Manjoo, who also had a ‘foreign sounding name’ was also not shortlisted but, no more is known about his application, his race of his age, as the documents relating to Mr Manjoo have been mislaid.  There was no evidence from which the tribunal could draw any inference from this loss.  In these circumstances, standing back, the fact of the failure of the claimant and Mr Manjoo, who were the only two applicants with ‘foreign sounding names’ to be shortlisted, was not in itself, without more, sufficient to establish racial discrimination by the respondent against the claimant. 

 

Equally, although the claimant was the oldest applicant, the range of those not shortlisted included a wide range of ages from 20s/early 30s to 61 years.  Indeed, three applicants, in their early 50s were shortlisted, albeit ultimately unsuccessful at interview.  Such an age range is not so far from the claimant’s own age.  It confirmed to the tribunal, standing back as required, that age was not the reason for the claimant’s failure to be shortlisted for the said post.

 

6.1     The claimant’s claim of racial and/or age discrimination must therefore be dismissed.

 

 

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing:         20- 21 March 2014;

24 – 26 March 2014, Belfast

 

 

Date decision recorded in register and issued to parties: