Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    2342/14

 

 

 

CLAIMANT:                      James D’Arcy

 

 

RESPONDENT:                P and FG Limited, t/a Mauds Enniskillen

                                       

 

 

DECISION

 

The unanimous decision of the tribunal is that the claimant’s claim of unlawful sex discrimination is dismissed.

 

 

Constitution of Tribunal:

 

Employment Judge:         Employment Judge Crothers

 

Members:                        Mr B Collins

                                        Mrs T Madden

 

 

Appearances:

 

The claimant appeared and represented himself.

 

The respondent was represented by Mr Paul Gamble.

 

 

 

THE CLAIM

 

1.       The claimant initially claimed that he had been unlawfully discriminated against on the ground of his sex in that the respondent had failed to appoint him to the position of the Coffee Shop Assistant (part-time) at the end of August 2014.  The respondent denied his allegations in their entirety. 

 

THE ISSUE

 

2.       (1)      The legal issue before the tribunal was identified at a Case Management Discussion on 29 January 2015 as follows:-

 

                    Whether the respondent discriminated against the claimant on grounds of his gender and failing to appoint him to the position of Coffee Shop Assistant (part-time) at the end of August 2014.  The respondent confirmed that two female staff were appointed as a result of the recruitment process complained of by the claimant.

 

(2)      However, at the tribunal hearing, the claimant did not advance the argument that he ought to have been appointed to the position of part-time Coffee Shop Assistant.  Instead he contended that he had been discriminated against during the recruitment process on the ground of his sex.  Initially he indicated to the tribunal that his case was being advanced on a point of principle and that he was seeking recovery only of bus fare expenses in travelling to the tribunal.  Substantial time was afforded to the claimant to consult with the Labour Relations Agency in an effort to further define the issue before the tribunal and establish the remedy sought.  The claimant then stated to the tribunal that he was seeking an apology by way of remedy but later changed his position to pursue injury to feelings as a remedy, rather than compensation for loss of opportunity of employment.  It was clear from Mr Gamble’s evidence to the tribunal, that the matter could have been resolved at an earlier stage had the claimant suggested that an apology would suffice.  This would also have avoided further expense for the respondent.  At the end of the hearing Mr Gamble stated that he would be seeking costs against the claimant should the latter be unsuccessful in his case.

 

(3)      The issue before the tribunal was whether the respondent discriminated against the claimant on the ground of his sex during the recruitment process.

 

SOURCES OF EVIDENCE

 

3.       The tribunal heard evidence from the claimant and Paul Gamble, described as the owner of the respondent business, which is a limited company.  The tribunal had considerable difficulties in relation to documentation and afforded the parties extra time to agree the documentation to be placed before the tribunal.

 

FINDINGS OF FACT

 

4.       Having considered the evidence insofar as same related to the issue before it, the tribunal made the following findings of fact on the balance of probabilities:-

 

        (i)         The claimant, who will be 18 on 23 December 2015, responded to an advertisement which included a reference to Coffee Shop Assistants posts.  The advertisement advised applicants to apply by forwarding their CV’s to an email address or alternatively by applying in writing to the respondent.  The claimant was interested in a part-time Coffee Shop Assistant position and he therefore forwarded his CV to the respondent.  The claimant had previously worked for what turned out to be a trial period of six weeks, in the Killyhevlin Hotel, Enniskillen. 

 

        (ii)        During his evidence the claimant pointed to the respondent’s response to his claim which referred to the fact that he had been offered the opportunity to attend an interview despite the fact that he did not meet the criteria as advertised.  It was not disputed that there was in fact no advertised criteria.  Furthermore, no job description or personnel specification had been used in the recruitment exercise.  It appears to the tribunal that the respondent had used the headings in the interview sheets (which included a scoring section), to sift the 40 applicants for the two Coffee Shop Assistants posts which involved working for 10-12 hours per week.

 

        (iii)        The claimant was one of four males also interviewed for the positions.  Interviews took place on 17 and 18 August 2014 at the United Colours of Benetton shop in Enniskillen.  The claimant believed that he was interviewed on 18 August 2014.

 

        (iv)       It was part of the claimant’s case that the manner in which he was interviewed by Paul Gamble was an attempt to put him off the post.  He referred to Paul Gamble’s description of the post and the duties attaching to it as being daunting and unbearable.  At one stage the claimant also referred to the tone used by Paul Gamble during the interview and alleged that the effect of his approach was to deter him.  He alleged that Paul Gamble asked him at one stage if he wished to continue with the interview.  However, when pressed by the tribunal to clarify this allegation, which was central to his case, the claimant referred essentially to Paul Gamble’s description of what the job entailed.  The tribunal saw nothing exceptional in this.  However, having heard Paul Gamble giving his evidence, it is clear that he takes a firm businesslike approach and this, in all likelihood, emerged during the interview with the claimant. 

 

        (v)        The respondent, at the time of presenting its response to the claim, employed two male cleaners and, to include Paul Gamble as an employee of the respondent company, the ratio of male to female employees was 3:12.  It was not disputed by the respondent that all floor staff in the Coffee Shop were female.  The claimant referred to his own interview sheet together with the interview and scoring sheets for other male candidates, to assert that the male candidates including himself were, in effect, deliberately marked down as the respondent had no intention of employing males as Coffee Shop Assistants.  Altogether, the 40 applicants for the two positions were reduced after short-listing to 15 applicants.  In response to the claimant’s claim of gender discrimination, the respondent constantly raised the question as to why he should take such an approach and waste his own and the candidates’ time in being interviewed, if in fact he had no intention of ever employing males as Coffee Shop Assistants.  The claimant’s perspective was that in some way the respondent was carrying out interviews with males even though he had no intention of appointing them, so as to assist in any potential tribunal proceedings in the future.  However, this was speculation and was not grounded on any solid factual basis.  Nonetheless, the tribunal acknowledges that the claimant perceived himself as having been discriminated against on the ground of his gender, as his tenacious approach at the tribunal hearing illustrated. 

(vi)     Under the criteria of experience, availability, flexibility, teamwork, initiative, and customer service, the claimant achieved an overall score of 29 out of 60, whereas the two successful female candidates relied on by the claimant as his comparators, scored 59 out of 60 and 50 out of 60 respectively.  In relation to the first female candidate the claimant focussed only on the area of experience, whereas in relation to the second female candidate, he focussed on the areas of availability and flexibility.  However, even if these scorings are deleted in relation to the female candidates, the overall scores are still in excess of the claimant’s total score.  The tribunal is satisfied that there is some validity in the respondent’s assertion that had the quality of the candidates been better in terms of clearly meeting the factors used as short-listing criteria, the claimant most likely would not have been interviewed at all.  One of the female candidates was a student at Manchester and was available for the equivalent of six months to work as a part-time Coffee Shop Assistant.  The other candidate had total availability.  The tribunal is satisfied that the female candidate who was a Manchester student could afford greater availability than the claimant for the post in question.  This female candidate was marked down on availability when compared to the other female candidate who had total availability. 

 

(vii)     The claimant also sought to rely on other advertisements for posts in the respondent’s business to show variations of practice in that some adverts referred to experience.  However the tribunal is not satisfied this has any real relevance in relation to the post in question.  He also referred the tribunal to various other marking (and scoring) sheets.

 

(viii)    The claimant referred to suffering from stress and depression after his unsuccessful interview and to the fact that he had had to visit his General Practitioner in September 2014.  However no medical evidence was produced to the tribunal.

 

THE LAW

 

5.       (1)      The tribunal considered the legislation provisions relating to sex discrimination contained in Article 3, 4 and 8 of the Sex Discrimination (Northern Ireland) Order 1976 (as amended) (“the Order”).

 

          Burden of Proof Regulations

 

(2)            Article 63A of the Order provides as follows:- 

 

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

 

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

 

(b)     is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination or harassment against the complainant, the Tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, he is not to be treated as having committed that act”.

 

          (i)       In Igen Ltd (formerly Leeds Carers Guidance) and Others  v  Wong, Chamberlains Solicitors and Another - v - Emokpae; and Brunel University  v  Webster [2006] IRLR 258, the Court of Appeal in England and Wales set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race and disability discrimination.  This guidance is now set out in the Annex to the judgment in the Igen case.  The guidance is not reproduced but has been taken fully into account. 

 

(ii)             The tribunal also considered the following authorities; McDonagh and Others  v  Hamilton Thom Trading As The Royal Hotel, Dungannon [2007] NICA, Madarassy  v  Nomura International Plc [2007] IRLR 246 (“Madarassy”), Laing  v  Manchester City Council [2006] IRLR 748 and Mohmed  v  West Coast Trains Ltd [2006] UK EAT 0682053008.  It is clear from these authorities that in deciding whether a claimant has proved facts from which the tribunal could conclude in the absence of an adequate explanation that discrimination had occurred, the tribunal must consider evidence adduced by both the claimant and the respondent, putting to the

one side the employer’s explanation for the treatment.  As Lord Justice Mummery stated in Madarassy at paragraphs 56 and 57:-

 

“The Court in Igen  v  Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the Tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination.  The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination.  They are not, without more, sufficient material from which a Tribunal “could conclude” that on the balance of probabilities the respondent had committed an unlawful act of discrimination.

 

                    “Could conclude” in s.63A(2) must mean that “a reasonable tribunal could properly conclude” from all the evidence before it.  This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment.  It would also include evidence adduced by the respondent contesting the complaint.  Subject only to the statutory “absence of an adequate explanation” at this stage…, the tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by s.5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment.”

 

          (iii)      The tribunal received valuable assistance from Mr Justice Elias’ judgement in the case of London Borough of Islington  v  Ladele & Liberty (EAT) [2009] IRLR 154, at paragraphs 40 and 41:-

 

                              “Whilst the basic principles are not difficult to state, there has been extensive case law seeking to assist tribunals in determining whether direct discrimination has occurred.  The following propositions with respect to the concept of direct discrimination, potentially relevant to this case, seem to us to be justified by the authorities:

 

(1)       In every case the tribunal has to determine the reason why the claimant was treated as he was.  As Lord Nicholls put it in Nagarajan  v  London Regional Transport [1999] IRLR 572, 575 – ‘this is the crucial question’.  He also observed that in most cases this will call for some consideration of the mental processes (conscious or sub-conscious) of the alleged discriminator.

 

                                       (2)       If the tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination.  It need not be the only or even the main reason.  It is sufficient that it is significant in the sense of being more than trivial: see the observations of Lord Nicholls in Nagarajan (p.576) as explained by Peter Gibson LJ in Igen  v  Wong [2005] IRLR 258, paragraph 37.

 

                                       (3)       As the courts have regularly recognised, direct evidence of discrimination is rare and tribunals frequently have to infer discrimination from all the material facts.  The courts have adopted the two-stage test which reflects the requirements of the Burden of Proof Directive (97/80/EEC).  These are set out in Igen  v  Wong.  That case sets out guidelines in considerable detail, touching on numerous peripheral issues.  Whilst accurate, the formulation there adopted perhaps suggests that the exercise is more complex than it really is.  The essential guidelines can be simply stated and in truth do no more than reflect the common sense way in which courts would naturally approach an issue of proof of this nature.  The first stage places a burden on the claimant to establish a prima facie case of discrimination:-

 

                                        ‘Where the applicant has proved facts from which inferences could be drawn that the employer has treated the applicant less favourably [on the prohibited ground], then the burden of proof moves to the employer.’

 

                              If the claimant proves such facts then the second stage is engaged.  At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground.  If he fails to establish that, the tribunal must find that there is discrimination.  (The English law in existence prior to the Burden of Proof Directive reflected these principles save that it laid down that where the prima facie case of discrimination was established it was open to a tribunal to infer that there was discrimination if the employer did not provide a satisfactory non-discriminatory explanation, whereas the Directive requires that such an inference must be made in those circumstances: see the judgment of Neill LJ in the Court of Appeal in King  v  The Great Britain-China Centre [1991] IRLR 513.)

 

                    (4)      The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employer has treated the claimant unreasonably.  That is

                              a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee.  So the mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one.  As Lord Browne-Wilkinson pointed out in Zafar  v  Glasgow City Council [1997] IRLR 229:-

         

                ‘it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee that he would have acted reasonably if he had been dealing with another in the same circumstances.’

 

          Of course, in the circumstances of a particular case unreasonable treatment may be evidence of discriminatory such as to engage stage two and call for an explanation: see the judgment of Peter Gibson LJ in Bahl  v  Law Society [2004] IRLR 799, paragraphs 100, 101 and if the employer fails to provide a non-discriminatory explanation for the unreasonable treatment, then the inference of discrimination must be drawn.  As Peter Gibson LJ pointed out, the inference is then drawn not from the unreasonable treatment itself – or at least not simply from that fact – but from the failure to provide a non-discriminatory explanation for it.  But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, that discharges the burden at the second stage, however unreasonable the treatment.

 

                    (5)      It is not necessary in every case for a tribunal to go through the two-stage procedure.  In some cases it may be appropriate for the tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test:  see the decision of the Court of Appeal in Brown  v  Croydon LBC [2007] IRLR 259 paragraphs 28-39.  The employee is not prejudiced by that approach because in effect the tribunal is acting on the assumption that even if the first hurdle has been crossed by the employee, the case fails because the employer has provided a convincing non-discriminatory explanation for the less favourable treatment.

 

                    (6)      It is incumbent on a tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these

                              relevant factors are: see the observations of Sedley LJ in Anya  v  University of Oxford [2001] IRLR 377 esp paragraph 10.

 

                    (7)      As we have said, it is implicit in the concept of discrimination that the claimant is treated differently than the statutory comparator is or would be treated.  The proper approach to the evidence of how comparators may be used was succinctly summarised by Lord Hoffmann in Watt (formerly Carter)  v  Ashan [2008] IRLR 243, a case of direct race discrimination by the Labour Party.  Lord Hoffmann summarised the position as follows (paragraphs 36-37):-

 

                                ‘36.       The discrimination … is defined … as treating someone on racial grounds “less favourably than he treats or would treat other persons”.  The meaning of these apparently simple words was considered by the House in Shamoon  v  Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285.  Nothing has been said in this appeal to cast any doubt upon the principles there stated by the House, but the case produced five lengthy speeches and it may be useful to summarise:-

 

(1)   The test for discrimination involves a comparison between the treatment of the complainant and another person (the “statutory comparator”) actual or hypothetical, who is not of the same sex or racial group, as the case may be. 

 

(2)   The comparison requires that whether the statutory comparator is actual or hypothetical, the relevant circumstances in either case should be (or be assumed to be), the same as, or not materially different from, those of the complainant …

 

                                           (3)   The treatment of a person who does not qualify as a statutory comparator (because the circumstances are in some material respect different) may nevertheless be evidence from which a tribunal may infer how a hypothetical statutory comparator would have been treated: see Lord Scott of Foscote in Shamoon at paragraph 109 and Lord Rodger of Earlsferry at paragraph 143.  This is an ordinary question of relevance, which depends upon the degree of the similarity of the circumstances of the person in question (the “evidential comparator”) to those of the complainant and all the other evidence in the case.

 

          37.      It is probably uncommon to find a real person who qualifies … as a statutory comparator.  Lord Rodger’s example at paragraph 139 of Shamoon of the two employees with similar disciplinary records who are found drinking together in working time has a factual simplicity which may be rare in ordinary life.  At any rate, the question of whether the differences between the circumstances of the complainant and those of the putative statutory comparator are “materially different” is often likely to be disputed.  In most cases, however, it will be unnecessary for the tribunal to resolve this dispute because it should be able, by treating the putative comparator as an evidential comparator, and having due regard to the alleged differences in circumstances and other evidence, to form a view on how the employer would have treated a hypothetical person who was a true statutory comparator.  If the tribunal is able to conclude that the respondent would have treated such a person more favourably on racial grounds, it would be well advised to avoid deciding whether any actual person was a statutory comparator.’

 

                    The logic of Lord Hoffmann’s analysis is that if the tribunal is able to conclude that the respondent would not have treated the comparator more favourably, then again it is unnecessary to determine what are the characteristics of the statutory comparator.  This chimes with Lord Nicholls’ observations in Shamoon to the effect that the question whether the claimant has received less favourable treatment is often inextricably linked with the question why the claimant was treated as he was.  Accordingly:-

 

                              ‘employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was’ (paragraph 10).

                             

                              This approach is also consistent with the proposition in point (5) above.  The construction of the statutory comparator has to be identified at the first stage of the Igen principles.  But it may not be necessary to engage with the first stage at all”.

 

          (iv)      The tribunal also received considerable assistance from the judgment of Lord Justice Girvan in the Northern Ireland Court of Appeal decision in Stephen William Nelson  v  Newry and Mourne District Council [2009] NICA 24.  Referring to the Madarassy decision (supra) he states at paragraph 24 of his judgment:-

 

                              “This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination.  The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude in the absence of adequate explanation that the respondent has committed an act of discrimination. In Curley v Chief Constable [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 the 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 63A. The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination”.

 

                              Again, at paragraph 28 he states in the context of the facts of that particular case, as follows:-

 

                                        “The question in the present case however is not one to be determined by reference to the principles of Wednesbury unreasonabless but by reference to the question of whether one could properly infer that the Council was motivated by a sexually discriminatory intention.  Even if an employer could rationally reach the decision which it did in this case, it would nevertheless be liable for unlawful sex discrimination if it was truly motivated by a discriminatory intention.  However, having regard to the Council’s margin of appreciation of the circumstances the fact that the decision-making could not be found to be irrational or perverse must be very relevant in deciding whether there was evidence from which it could properly be inferred that the decision making in this instance was motivated by an improper sexually discriminatory intent.  The differences between the cases of Mr Nelson and Ms O’Donnell were such that the employer Council could rationally and sensibly have concluded that they were not in a comparable position demanding equality of disciplinary measures.  That is a strong factor tending to point away from a sexually discriminatory intent.  Once one recognises that there were sufficient differences between the two cases that could sensibly lead to a difference of treatment it is not possible to conclude in the absence of other evidence pointing to gender based decision-making that an inference or presumption of sexual discrimination should be drawn because of the disparate treatment of Ms O’Donnell and Mr Nelson”. 

 

 

SUBMISSIONS

 

6.       Neither the claimant nor the respondent made submissions to the tribunal.

 

CONCLUSIONS

 

7.       The tribunal, having carefully considered the evidence and applied the principles of law to the findings of fact, concludes as follows:-

 

(i)              The claimant has not proved facts from which the tribunal could conclude, in the absence of an adequate explanation from the respondent, that the latter has committed an unlawful act of discrimination in treating the claimant less favourably on the ground of his sex.  In particular, the tribunal has found that there was nothing exceptional in the approach taken by the respondent during the interview with the claimant.  Furthermore, the claimant did not challenge the scoring in relation to one successful female candidate, except in one area.  In relation to the other female candidate he did not challenge the scoring, except in two areas.  The total of the remaining scores for each successful female candidate, even discounting totally the areas which were challenged, still exceed the claimant’s total score.  It was also clear to the tribunal that the respondent afforded the claimant an interview, even though he was not satisfied that he fully met the shortlisting criteria.  There is no satisfactory evidence before the tribunal that male candidates were deliberately marked down or interviewed against the background of a decision by the respondent not to employ them in any event. 

 

(ii)             The tribunal however does commend the claimant, who is still at school, for his tenacity in pursuing the case.  However, it is regrettable, having had the benefit of prior legal advice, that he had not crystallised the issues clearly before the tribunal and had not intimated the potential basis for a resolution of the case, which he had mentioned to the tribunal.  From the respondent’s point of view a resolution could possibly have been achieved at an earlier stage without a tribunal hearing.  This would have avoided a potential application for costs by the respondent.  The claimant appears to have limited means.

 

(iii)           The claimant’s claim of unlawful discrimination on the ground of sex is therefore dismissed.

 

 

 

 

Employment Judge:      

 

 

Date and place of hearing:         23 and 24 April 2015, Belfast.             

 

Date decision recorded in register and issued to parties: