THE INDUSTRIAL TRIBUNALS
	
 CASE REF:	141/17

CLAIMANT:			Geraldine Donaghy

RESPONDENTS:		1.	Chris Hazzard MLA
				2.	Department for Infrastructure 

DECISION
The unanimous decision of the tribunal is that:-

(1)	The claimant was not discriminated against on the grounds of her sex, pursuant to the Sex Discrimination (Northern Ireland) Order 1976.

(2)	The claimant’s claim is therefore dismissed.

Constitution of Tribunal:

Employment Judge:	Employment Judge Drennan QC
Members:			Mr N Jones
				Mrs V J Foster

Appearances:

The claimant appeared in person and was not represented.

The respondents were represented by Mr A Sands, Barrister-at-Law, instructed by The Departmental Solicitor’s Office.

Reasons

1.1	The claimant presented a claim to the tribunal on 2 January 2017, claiming that she had been unlawfully discriminated against on the grounds of her sex, contrary to the Sex Discrimination (Northern Ireland) Order 1976, in relation to her failure to be appointed by the respondents to the position of Non-Executive Director of Warrenpoint Harbour Authority.  In a response, presented to the tribunal on 13 February 2017, the respondents denied liability for the claimant’s said claim.

1.2	At the material time, the first respondent was the Minister for the Department for Infrastructure, the second respondent.  It was not disputed, for the purposes of these proceedings, at all material times, that the second respondent was vicariously liable for any acts of the first respondent in relation to this appointment process, the subject-matter of these proceedings.  At the outset of the proceedings, the claimant confirmed she was making a claim of direct sex discrimination against the respondents and each of them.

1.3(i)	In accordance with the tribunal’s normal case-management procedures, the following issues were identified by the parties in a statement of legal and factual issues:-

		“Legal Issue:

(i)	Did the respondents directly discriminate against the claimant on the ground of her sex, contrary to the Sex Discrimination (Northern Ireland) Order 1976 (‘the 1976 Order’)?

 Main Factual Issues:

(ii)	Thirty-seven people applied for the post some thirteen candidates were shortlisted.  Twelve were interviewed.  Six candidates were deemed suitable for appointment by the interview panel.  Two male candidates were appointed by the Minister.  The claimant was selected as the sole reserve candidate.  The three rejected candidates were male.

(iii)	The candidates’ scores were as follows:-

	Candidate No	Sex		Panel Score		Final Outcome

	4			Male		25			Unsuccessful

	9			Male		23			Unsuccessful

	10			Male		20			Successful

	22			Male		21			Unsuccessful

	23 (claimant)		Female	22			Selected as
									Reserve

	28			Male		20			Successful

(iv)	The selection panel (comprising two men and one woman) completed a handwritten panel summary statement for each candidate:-

(a)	Did the panel summary statement inaccurately summarise the claimant’s skills and knowledge, by failing to record in the skills and knowledge section that she met the essential criterion of having specialised knowledge of the role of WHA in the local Newry, Mourne and Down economy in circumstances where, it had recorded on the panel’s summary statement in the skills and knowledge section that Candidate No 28, who was male, had specialised knowledge of the Newry, Mourne and Down local economy of which WHA is a part?

(b)	Why did the panel record in the skills and knowledge section that Candidate 28 had specialised knowledge of the local economy, but not record the claimant’s specialised knowledge of the local economy?

(c)	If the interview panel did inaccurately summarise the claimant’s skills on the panel summary statement in the skills and knowledge section, why did they do so?  If they did do so, was it on the ground that the claimant was a woman or for some other reason?

(d)	Did the panel summary statement inaccurately summarise Candidate 28’s skills and knowledge by recording in the skills and knowledge section that he had specialised knowledge of the NI economy?

(e)	If the interview panel did inaccurately summarise this skills and knowledge on the panel summary statement for Candidate 28 why did they do so?  If they did do so, was it on the ground that the claimant was a woman or for some other reason?

(f)	Why did the panel consider that the potential conflict of interest declared by Candidate 28 (a man), was not in fact a conflict of interest and why did they fail to record the reasons as required by the CPANI Code.  Why was Candidate 28 treated differently than Candidate 9 (also a man) who did record a conflict of interest, which was not considered by the panel to be a conflict of interest but was recorded in his panel summary as required by the CPANI Code?  Did they reach these conclusions on the ground that both candidates were men or for some other reason(s)?

(v)	Six typed candidate summary statements were sent as part of the submission to the Minister.  These were initially drafted by a Departmental official (Dorcas Cutrona – Head of Appointments Unit) and then approved by the panel.  In the typed summary statement prepared for the claimant, her HR skills were omitted from the skills and knowledge section.  The claimant’s HR skills were referred to in the ‘background and career history’ section:-

(a)	In the claimant’s candidate summary statement presented to the Minister was the summary of ‘panel assessment including skills and knowledge that the individual would bring to the role’ inaccurate and/or incomplete?

(b)	Why was the claimant’s HR experience mentioned in the panel summary as part of ‘background and career history’ but not as part of the ‘skills and knowledge’ section?

(c)	Did the panel have any evidence of a material difference in the level of HR knowledge of the claimant and of Candidate No 10?

(d)	Did Ms Cutrona fail to record the claimant’s HR skills as part of the skills and knowledge section of ‘panel summary assessment’ because the claimant was a woman or was it for some other reason?

(e)	Did the three panel members approve the draft which had been provided by Ms Cutrona, and which had recorded HR under the skills and knowledge of the ‘panel assessment’, because the claimant was a woman or was it for some other reason?

(vi)	What were the reasons for the selection of the two successful male candidates as Non-Executive Directors of Warrenpoint Harbour Authority?  Were these reasons evidence-based as required by the Ministerial Code?

(vii)	Were the reasons for his selection on the ground of their sex (both male) or was it for some other reason?

		(viii)	If it was for some other reason, then what was that reason?

(ix)	What consideration, if any, did the Minister give to the NI Executive’s declared objection of achieving gender balance within NI Public Appointments and to CPANI’s advice that the Department must reflect under-representation of women and promote diversity in its public appointments process.

(x)	What was the reason for the selection of the claimant as reserved candidate in the competition?  Was it on the ground of her sex, or was it for some other reason and was the reason recorded in written format?

(xi)	If it was for some other reason then what was that reason?

(xii)	Did the Minister select its candidate to fulfil the requirement on him to create a diverse board in terms of both gender and skills set?

(xiii)	What loss and damage, if any, has the claimant suffered?

(xiv)	Has the claimant mitigated her loss?”

1.3(ii)	The above statement was not agreed by the claimant and in the circumstances, the tribunal, by order, permitted the claimant to augment/further clarify the said statement, for use at the substantive hearing of this matter, in an e-mail by the claimant, dated 10 October 2017, which stated:-

“The facts of my case were and remain that two male candidates were appointed on the basis of having skills and knowledge in logistics; HR; NI economy and local expertise.  The issue for me is that I have skills and knowledge in HR and local expertise greater than that of both candidates, borne out in my interview scores and application form.  This was not accurately recorded for presentation to the Minister as confirmed by discovery and the CPANI audit of June 2017.

…  .”

2.1	The tribunal heard oral evidence from the claimant; and also, on behalf of the respondents, from the first respondent, Ms Dorcas Cutrona (Head of Public Appointments Unit of the second respondent) and Mr John McGrath (Deputy Secretary, Transport and Resources, of the second respondent).  In accordance with the tribunal’s normal case-management orders, the following witness statements had also been exchanged by the respondents’ representatives, on behalf of the respondents, with the claimant; these had been made by Mr J S McIlvenny (Chair of the Warrenpoint Harbour Authority) and Dr Joanne Jordan (an Independent Assessor, assigned by The Commissioner for Public Appointments for Northern Ireland), who along with Mr J McGrath were members of the relevant interview panel for the purposes of this appointment process (see later).  It was agreed and the tribunal so ordered, that the said witness statements of Mr McIlvenny and Dr Jordan could be admitted in evidence without formal proof; but, subject to the caveat, as acknowledged by the respondents’ representatives, in relation to the weight, if any, which was to be attached to these witness statements in such circumstances.

	In essence, both the witness statements of Mr McIlvenny and Dr Jordan denied that the claimant had been discriminated against because she was a woman.  Dr Jordan also confirmed the witness statement of Mr McGrath was true to the best of her knowledge and belief and Mr McIlvenny also simply rejected the claimant’s witness statement that the process had ‘a lack of objectivity and transparency’.  The said statements were, in the circumstances, of little or no assistance to the tribunal in the determination of the issues, the subject-matter of the claimant’s claim.

	Having considered the evidence given to the tribunal by the parties and their witnesses, as referred to above, the documents contained in the ‘trial bundles’, as amended, to which the tribunal was referred during the course of the hearing, together with the submissions made by the claimant and the respondent’s representative, the tribunal made the following findings of fact, set out in the following sub-paragraphs, insofar as relevant and necessary for the determination of the claimant’s said claim of sex discrimination.

2.2	The claimant served as a Non-Executive Director (‘NED’) on the Board of Warrenpoint Harbour Authority (‘WHA’) for a four year term from 1 November 2012 to 31 October 2016.  Her appointment to this position was made by the then Minister for the second respondent, Danny Kennedy MLA, following a public recruitment exercise, in accordance with the relevant Code of Practice for Ministerial Public Appointments in Northern Ireland, issued by the Commissioner for Public Appointments in Northern Ireland (‘CPANI’).  In accordance with the policy of the second respondent, NEDs are appointed initially for a four year term but they may, if they wish, make application for a second four year term.  Re-appointment is subject to an open competition as part of a Public Recruitment exercise.  In or about June 2016 public advertisements appeared to enable recruitment of two vacancies for NEDs on WHA, upon completion of the claimant’s said term and that of another Board member.  The claimant decided to apply for re-appointment to the WHA, on foot of the said recruitment exercise.

2.3	As part of this recruitment exercise, the second respondent issued an Information Pack.  In the said pack, insofar as relevant and material for the purposes of these proceedings, it was stated:-

		“Section 1

2.	The term of appointment will be for a period up to four years.  The Minister for Infrastructure is committed to improving the diversity of the boards to which he makes appointments.  As part of this the Department has moved away from what has become almost automatic re-appointments of members for second terms.

Section 3 – Person Specification

20.	The person specification addresses the qualities, experience, background and competencies sought.  A criterion-based selection procedure will be used as part of this process.

21.	The application form is an essential element of the process and is designed to require applicants to give specific examples of past performance to demonstrate their ability or competence.

…

Criteria

23.	Applicants for the post of Board Members for WHA are expected to demonstrate by way of example or examples, including dates and length of experience, that they meet five out of the seven criteria listed below.  Applicants must complete criteria 1, 2, 3 and 4 and, one criterion chosen from criteria 5, 6 or 7.  The criteria are all of equal weight.

…

Criterion 1 Relevant Experience (400 words)

All applicants must complete this criterion.  

In accordance with the Warrenpoint Harbour Authority Order (Northern Ireland) 2002, members of the Board of WHA are appointed from among persons who appear to the Minister to have had wide experience of, and to have shown capacity in one or more of:-

•	the management of harbours;

•	shipping;

•	port usage;

•	industrial, commerce or financial matters;

•	administration;

•	the organisation of workers; or 

•	have in some other respect special knowledge or experience which would be of value to the Commissioners in the discharge of their functions;

such special knowledge or experience includes : logistics and estate management, marine safety, commerce and trade, human resources, management and corporate finance, planning processes, an understanding of the Port’s role in the local economy and working at senior level in the local community 						[Tribunal’s emphasis]

(It is to be noted there was no weighting between these said capacities.)

Criterion 2 Governance, Control and Accountability

		…

Criterion 3 Interpersonal and Communication Skills

…

Criterion 4 Judgement and Decision-making

…

Criterion 5 Financial Management

…

Criterion 6 Developing and Delivering Strategy

…

Criterion 7 Organisational Change
…

Section 4  -  Application and Selection Process

…

33.	The Minister for Infrastructure is committed to taking measures to improve the diversity of the Boards to which he makes appointments.  He wants to encourage more women, younger people, people from ethnic minorities and people with disabilities to apply for appointments.  Applications from these groups would be particularly welcome.

34.	This appointment is regulated by the Commissioner for Public Appointment for Northern Ireland (CPANI) and the compettion may be examined by CPANI for compliance with the Commissioner’s Code of Practice.

...

Selection Process

43.	The Selection Panel comprising three members, a senior officer from the Department, the Chair of Warrenpoint Harbour Authority, and an Independent Member, will carry out a sift of all the application forms received to assess each applicant against the selection criteria.

…

44.	The selection panel will reach a decision as to whether or not an application meets each criterion on the basis of the evidence supplied on the application form.  All criterion will be weighted equally.  Only those applicants assessed as meeting each of the five selection criterion will be eligible to proceed to the next stage of the selection process.

…

48.	At interview all candidates must satisfy the panel that they adequately meet all of the criteria.  The Minister for Infrastructure will take the final decision on who to appoint.  The Minister has chosen to be presented with the list of those judged suitable for appointment in an unranked order, ie the Selection Panel will score applicants at interview against an agreed pass mark and those found to be above the line will be recommended to the Minister.  An applicant summary will provide the Minister with an objective analysis of each applicant’s skills and experience, based on the information provided by each application during the appointment round and the Panel’s assessment.									[Tribunal’s emphasis]

49.	The Minister may decide to create a reserve list to cover any unforeseen vacancies that arise within 12 months of the date of the Minister’s decision.

…”

2.4	As set out previously, the said process was regulated by (CPANI) in accordance with the Code of Practice issued by the Commissioner in June 2016.  It was somewhat disappointing to the tribunal, in the circumstances, that the first respondent was unsure, when giving evidence, if and when he had seen and/or read the Code; albeit he believed he must have been made aware of it and/or its terms at the time of his induction as a Minister and/or when he was fully briefed on the Ministerial Code.  (This Code has been subsequently updated in December 2016.)  In any event, the first respondent accepted the said Code of Practice applied to this appointment process.

2.5	Under the said Code of Practice for Ministerial Public Appointments in Northern Ireland, insofar as relevant and material for the purposes of these proceedings, it is provided:-

		“3.	The Appointment Process
			Ministerial Responsibility and Involvement

3.1	Ministers in the Northern Ireland Executive are responsible for the work of public bodies and those appointed to these bodies.  They must determine, in advance of each appointment process, the criteria, skills and personal qualities required on the Board of the Public Body.							[Tribunal’s emphasis]

3.2	Once a Minister has agreed the role profile, person specification and appointment plan, he or she will not be actively involved in the appointment process again until assessments have been concluded and the Minister has received the ‘application summary’.  
						(See Paragraphs 3.39 – 3.43)

3.3	During the planning stage, Departments must also consult the Minister to confirm whether he or she requires an alphabetical list of a pool of candidates (unranked) deemed suitable for appointment, or a                  merit-ordered list (ranked), in the Ministerial submission.
								(See Paragraph 3.43)

…

3.5	The Department must prepare for agreement with the Minister.
								(See Paragraph 3.2)

The Role Profile

...

The Person Specification: This will detail the characteristics required to discharge the responsibilities of the role.  The person specification will contain essential criteria for appointment and may contain relevant desirable criteria.  The criteria must not contain unnecessary or unjustifiable conditions or standards.

…

		Appointment

		Informing the Minister of applicants suitable for appointment.

3.39	No applicant can be recommended to a Minister unless that applicant has been deemed suitable for appointment by the selection panel.

3.40	The Department must provide the Minister with an ‘applicant summary’ containing relevant information on all applicants deemed suitable for appointment.

3.41	The applicant summary must be agreed by the selection panel prior to submission to the Minister.

3.42	The applicant summary should provide the Minister with an objective analysis of each applicant’s skills and experience, based on the information provided by each applicant during the appointment round and the selection panel’s assessment of that applicant.
	[Tribunal’s emphasis]			

3.43	As stipulated in Paragraph 3.3, the Department must agree with the Minister how he or she wishes to have the list of ‘suitable for appointment applicants’ presented in the applicant summary.  However the list is presented, Departments must ensure that the Minister is aware of the implications of (1) presenting the names in merit order (ranked), potentially removing flexibility from the Minister in attempting to achieve the best mix of skills and experience; or (2) presenting the names in an ‘unranked’ list, requiring a clear and cogent record of Minister’s reasons for choice of appointees.
								[Tribunal’s emphasis]

	Also, it should be noted that when a Department is under a statutory duty to secure, as far as practicable, that a Board is representative (or reflective) of the community, the Department must not discriminate unlawfully when fulfilling this duty … 

…

The Minister’s Decision

3.45	The Minister’s decision on which applicant(s) is (are) to be appointed must be recorded and retained as part of the audit trail.

	…

	When the Minister has made the decision on which candidate(s) to appoint, the reasons for those decisions must be recorded.  The Department must also hold sufficient information to provide meaningful feedback to unsuccessful candidates.  Candidates from the list of those deemed suitable and who are not appointed at this stage may be included by the Minister in a reserve list.

…

Announcing the Appointment

3.50	…

	Such announcements must include:

		…

(b)	a brief summary of the skills and knowledge that the individual will bring to the role.

3.51	The public announcement should be issued as a press release and should be placed on the appropriate websites.  The public announcement must also be copied to CPANI at the time of publication.

…

Audit

5.8	The Commissioner has a responsibility, under the Commissioner for Public Appointment (Northern Ireland) Order 1995 (as amended) to put in place an audit process to review appointments and to determine whether the Commissioner’s Code is being observed.”

2.6	In a submission contained in a memo, dated 3 June 2016, sent by John McGrath, Deputy Secretary of the second respondent, to the first respondent, pursuant to the Code of Practice, Mr McGrath made certain recommendations to the first respondent, which included seeking approval of the draft appointment plan, the draft role description and person specification set out in the Information Pack of Candidates, referred to previously.  The first respondent gave approval on 16 June 2016, approving the commencement of the competition, noting the contents of the submission and advising that he wanted an unranked list of suitable candidates.

2.7	The claimant was one of 37 applicants for the post who proceeded to the short listing stage (32 males, 5 females).

2.8	As stated previously, the selection panel, comprised Stanley McIvenny, Chair of WHA, Dr Joanne Jordan, an independent assessor assigned by CPANI and it was chaired by John McGrath, Deputy Secretary of the second respondent.  A short listing meeting took place on 8 August 2016.  The applications were anonymised prior to the meeting.  All applicants were reviewed against a pre-agreed scoring framework.  Once the applications had been shortlisted the panel were given the names of the 12 applicants, whom it was agreed were to be interviewed, following the withdrawal of one male applicant (10 males and 2 females, of whom one was the claimant).  Interviews took place on 1 – 2 September 2016.  Following the interviews, the selection panel deemed six candidates suitable for appointment, of whom five were male and one was female (namely the claimant).

2.9	A submission was then prepared by Ms Dorcas Cutrona, the Head of the Public Appointments Unit, and sent in a memorandum to the first respondent, by Mr McGrath, the Chair of the interview panel, on 30 September 2016.

	The submission was made up of:-

		(a)	details of the competition process;

		(b)	a further copy of the Ministerial Choice Guidance;

(c)	the make-up of the current Warrenpoint Harbour Authority Board and details of the Executive’s diversity targets;

(d)	applicants’ summaries of the said six candidates (prepared by Ms Cutrona and approved by the members of the panel);

(e)	guidance on the selection process and how the Minister should make his choice along with any other pertinent issues about which the Chairman thought the Minister should be made aware.

2.10	It will be necessary, later in this decision, to refer in more detail to the said interview process and the said applicant summaries; but it has to be noted that, in evidence, the claimant expressly accepted she was not making any claim of less favourable treatment, on the grounds of sex against any work carried out by Ms Cutrona, Mr McGrath or the other members of the interview panel in relation to this recruitment process, the subject-matter of these proceedings.  As shall become apparent later in this decision, the candidate summaries prepared by Ms Catrona, and approved by the panel for submission to the Minister of all six candidates were brief.  The tribunal was informed, in evidence, this was standard practice.  There was a suggestion, in evidence, that the necessity for such brevity arose, in part at least, due to the busy work schedule and commitments of a Minister of the Executive.  The information contained in the applicant summary prepared by Ms Cutrona was drawn from, in respect of each candidate, the application form, the details recorded by the members of the interview panel at interview in the candidate summary assessment booklet and the panel summary statement.  In particular, prior to  making his decision, the first respondent did not see the scores from the interview part of the process and only saw the said applicant summaries, referred to above, and enclosed with Mr McGrath’s submission, dated 30 September 2016, which were prepared by Ms Catrona and approved by the interview panel.

2.11	In the said submission dated 30 September 2016 from Mr McGrath to the first respondent, the following is necessary to refer to, insofar as relevant and material:-

“15	At the interviews the twelve candidates were assessed and scored by the panel against the five out of seven equally weighted criterion included in the person specification and set out below.  The first four criteria were the same for all applicants; however, each applicant had the option to choose one from the other three criteria. 
								[Tribunal’s emphasis]

	…

	All applicants completed the four criteria below –

•	relevant experience;

•	governance, control and accountability;

•	interpersonal and communication skills; and

•	judgement and decision-making; and

Options – Applicants selected one of the criteria below –

•	Financial Management

•	Developing and delivery strategy

•	Organisational change

16	The panel concluded that six candidates were suitable for appointment.  The candidates deemed suitable for appointment and the optional criteria each chose are set out below –

		(Candidate)				(Option)

		Candidate 22				Organisational Change

		Geraldine Donaghy			Developing and Delivering
		(claimant) (Reserve			Strategy
		Candidate)

		Richard Johnston (28)		Financial Management
		(Appointed Candidate)		

		Candidate 9				Developing and Delivering
							Strategy

		Candidate 4				Financial Management
		
			Deep Sagar (10)			Developing and
			(Appointed Candidate)		Delivering Strategy

(It was noted by the tribunal the said submission gave the names of all candidates but it was agreed, for the purposes of these proceedings, the candidates not appointed, other than the claimant, would not be identified in this decision.  In any event, the first respondent, in evidence, to the tribunal which was not challenged, and which was accepted by the tribunal, stated he did not know any of the said candidates referred to in the said submission, before he made his decision.)

The candidates were also questioned on their ability to meet the time commitment and on potential probity and conflicts of interest issues.  The only issue raised at interview was in relation to candidate 9.  …  He appreciated the perceived conflict of interest and advised that should this situation arise again he would notify the WHA Chair.  The panel did not note this as a conflict of interest or a barrier to appointment.

…

Applicant Summary

20	The CPANI Code requires the Department to provide you with an ‘applicant summary’, containing relevant information on all applicants deemed suitable for appointment.  The applicant summary, which has been agreed by the selection panel, is the key source of evidence available to you in making the appointment decision.  It provides you with an objective analysis of each applicants’ skills and experience based on the information provided by each applicant during the appointment round and the selection panel’s assessment of that candidate based on the information provided by each applicant during the appointment round and the selection panel’s assessment of that candidate.  You should make your selection from the list of candidates using the applicant summary.			[Tribunal’s emphasis]

21	To help you make an informed decision, the applicant summary includes details gleaned from the application form and the interview, of the background and career history of each candidate judged suitable for appointment.  It includes information on the panel’s assessment of the candidate against the selection criteria, highlighting the skills and strengths shown at interview and the panel’s conclusions about the skills and knowledge each candidate will bring to the role.  The applicant summary also highlights any issues identified at interview in meeting the time commitment involved or any probity and conflict of interest issues.		[Tribunal’s emphasis]

…

Selection

23	You should make your selection for public appointment on the basis of a well-informed choice of individual who through their qualifications, experience, knowledge or competency best meet the needs of the public body and the post in question as set out in the person specification.				[Tribunal’s emphasis]

24	You should, using the applicant summary, make your selection from the pool of candidates that have been identified by the selection panel as appointable.  It is important that you make your decision only on the basis of the criteria agreed and advertised for the competition.  It is inappropriate to introduce additional criteria at this stage in the process and to do so could lead to a successful challenge. 
								[Tribunal’s emphasis]

…

Reserve list

26	You also have the option to include one or more candidates from the list of those deemed suitable for appointment who are not appointed at this stage in a reserve list which will be valid for one year.

Recording of information

27	In line with the Commission’s Code of Practice your decision to appoint a particular candidate should be recorded, the reasons for not appointing the other candidates should also be recorded.  This record will be retained as part of the audit trail.

28	The Department must hold sufficient information to provide meaningful feedback to unsuccessful candidates.

…

30	It is important there is adequate evidence to determine both the rationale for the appointment of a particular candidate and the               non-discriminatory nature of the appointment.  This evidence provides for transparency and will support consideration should a challenge arise.”

2.12	As referred to previously, the memoranda dated 3 June 2016 and 30 September 2016 included a copy of the document headed ‘Ministerial Choice – Mandatory Input to Departmental Submissions on initiating a potential Public Appointments Competition’.  It states, insofar as material and relevant to this decision:-

		“Purpose of this advice

		1.	…

The aim is to help Ministers make sound, non-discriminatory, evidence based decisions on the agreed requirements for the appointment which do not take account of any new criteria; and to protect the Minister against a challenge to their decisions including a claim of unlawful discrimination … 		[Tribunal’s emphasis]

Overview

2.	Current Government policy is defined by the principles of selection on merit, independent assessment and Ministerial choice.  The first tier principles are achieved through the selection process to identify those deemed suitable for appointment.  Ministers exercise their choice both at the outset of a completion in deciding how they wish to have the list of appointable candidates presented (ie ranked or unranked) and after the selection process in their choice of when to appoint.  In exercising the principle of Ministerial choice the Minister should have due regard to the principle of selection on merit, the requirements of the law (in particular anti-discrimination legislation), the Ministerial Code and, in the case of appointments regulated by the Commissioner for Public Appointments, the Commissioner’s Code of Practice.”

2.13	In response to Mr McGrath’s memorandum dated 30 September 2016, the first respondent in a memorandum, dated 12 October 2016, insofar as relevant and material to these proceedings, made the following comments, namely that:-

“(a)	he had noted the following matters - the legal requirements associated with public appointments and the guidance on Ministerial choice; the role profile and person specification; the details of the selection process and essential criteria; the panel found that 6 candidates were deemed suitable for appointment; and there were no probity or conflict of interest issues identified at interview that would be a barrier for appointment.

(b)	He had considered the applicant summary for each of the candidates deemed suitable for appointment.

(c)	He stated there was no need for a meeting.

(d)	He confirmed Richard Johnston and Deep Sagar for appointment as non-executive members to the Board with effect from 1 November 2016, the claimant for a reserve list.

(e)	Further, in particular, in response to the recommendation, made by Mr McGrath in his said memo, namely - “xi – record the reasons for your decision to appoint a particular candidate and also record your reasons for not appointing the other candidates.  Provide sufficient information to provide meaningful feedback, on request, to candidates who have been recommended by the panel as appointable’ – the first respondent stated:-

“Richard Johnston due to his specialist knowledge of the NI economy and local expertise.  Deep Sagar for skills and knowledge in logistics and particularly human resources.							[Tribunal’s emphasis]

2.14	On 20 October 2016 a press release was issued by the second respondent on behalf of the first respondent in relation to the said appointment of Richard Johnston and Deep Sagar, in which it was stated, inter alia:-

		“4.	All appointments are made on merit …

5.	Mr Deep Sagar has a wide range of commercial, private and public sector experience.  He has worked extensively in manufacturing including leading logistics/distribution in multi-nationals like                    Coca-Cola.  He is currently Chair of the Governing Body of the South Eastern Regional College for which he receives remuneration of £20,000 per annum based on an attendance of four days a month.

6.	Mr Richard Johnston has more than 15 years of economic policy experience.  He is a former lead economist with Invest NI where he provided strategic advice on investment projects.  He is the Associate Director of the Economic Policy Centre in the Ulster University since 2013.  He leads the UUEPC research programme and also teaches economic policy.  He holds no other Public Appointment positions.”

2.15	Relevant letters confirming the appointment of Mr Johnston and Mr Sagar as               non-executive members of WHA and that the claimant was to be on a reserve list were issued by the second respondent.

2.16	In relation to this recruitment process, prior to its commencement, in a letter dated 12 April 2016, the Commissioner for Public Appointments, wrote to Ms Catrona, stating inter alia:-

“Positive action to address under-representation and promote diversity must be reflected in the appointment plan and throughout the competition.  Given the current imbalance on the board CPANI will closely monitor this competition and dependent on the outcome may carry out a diversity check.  This will involve looking at the balance of applicants at various stages of the competition … I appreciate that there is both Ministerial and Departmental commitment to greater diversity on public boards … .”

Ms Catrona, in evidence to the tribunal, confirmed that, taking account of the above, the information pack stated, in particular:-

“32	The Department for Infrastructure is committed to the principles of public appointments based on merit with independent assessment, openness and transparency of process.  The Department is also committed to equality of opportunity and welcomes application forms from all suitably qualified applicants, irrespective of … gender …

 33	The Minister for Infrastructure is committed to taking measures to improve the diversity of the Boards to which he makes appointments.  He wants to encourage more women  …  Applicants from these groups would be particularly welcome.”

It was common case the advertisement for this competition in relevant government websites and local press stated applications from women would be particularly welcome.

2.17	An audit was subsequently carried out by the Commissioner for Public Appointments for Northern Ireland (CPANI) and issued in June 2017.  The audit report was the result of an examination of the appointment process from which 19 instances of ‘less than best practice’ were identified.  For each identified issue of ‘less than best practice’, CPANI produced a recommendation which the report states must be addressed by the second respondent.  This report was admitted in evidence, by consent, without formal proof.

	Insofar as relevant and material to the tribunal’s decision in this matter, the tribunal noted the following findings, in particular, in the said report, upon which the said recommendations are based.  However, it also is necessary to note that the audit report made no findings of unlawful discrimination:-

“9.34	Applicants were questioned on the four mandatory criteria, as well as the fifth criterion they chose to address in the application form.  In order to pass the interview applicants had to meet the pass mark of four out of seven in each criterion.

 9.35	Each panel member completed an individual interview assessment booklet for each applicant, to record the evidence against each criterion.  An individual panel member score was recorded along with the final agreed panel score for each criterion.  There was a space to record a brief justification for the panel member score and agreed panel scores however this was not completed consistently by all selection panel members.

 9.36	Recommendation.  All panel members of the selection panel must complete the documentation recording their assessment of each applicant.

…

 9.38	A summary sheet recording an agreed panel score was completed and signed by all selection panel members.  Evidence for the agreed score was provided for each criterion.  The summary sheet stated that this evidence should ‘include a record of the candidate’s relative strengths against each criterion’.  What was actually recorded here was the brief descriptor (excellent, very good, good or satisfactory) taken from the scoring framework which corresponded to the mark out of seven awarded.  In other words no summary evidence was actually provided here for the five criteria.

 9.39	Recommendation Summary comments must be provided for each application in addition to numeric scores against the criteria.

…

Applicant Summaries

9.46	Applicant summaries were prepared by the Department and agreed with the selection panel.  Each applicant summary included: a section on background and career history; a section covering the panel assessment including the skills and knowledge the individual would bring to the role; and details on current public appointments, any time commitment issues and any conflicts or interest or integrity issues.

9.47	The background and career history section relied on the applicant’s employment history, and often job titles were listed without being linked directly to the criteria.  CPANI does not consider it good practice to include the term ‘career history’ as part of a section title in an applicant summary.  Background information provided in the applicant summary should be an objective overview of information on the candidate as taken from the application form and interview notes and relating to her/his performance against the set criteria.  It should not portray an applicant career history.		[Tribunal’s emphasis]

9.48	Recommendation: To merely list an applicant’s employment history without directly relating the experience to the criteria is poor practice.  This practice may also mitigate against improving the diversity on public boards.

9.49	In the case of several applicants the background and career history section included figures and information provided by the applicant, which were not directly related, in the applicant summary, to any of the criteria.  Examples of this included information on the number of staff members an applicant managed, on the turnover figure for a company for which an applicant was a director.

9.50	Recommendation: The Department and selection panel must ensure that all information provided in the applicant summary should relate to the applicant’s performance against the set criteria.

…

9.53	The applicant summaries also contained a section entitled ‘Panel Assessment including skills and knowledge the individual will bring to the role’.  This section for all applicants included a statement which relayed the quality of evidence the applicant had provided ‘across most or all of the criteria’.  This wording is confusing and does not accurately convey to the Minister the selection panel’s assessment of the applicants.  This is especially important where a Minister has requested an unranked list and is reliant on the applicant summaries to provide accurate information to allow them to make an informal decision on which candidates to appoint.  While this had no effect on the highest and lowest scoring applicants, for three applicants, scoring 21, 22 and 23 out of a possible 35, the same statement was used (see also paragraph 2.19 of this decision).

9.54	The independent assessor raised concern about this aspect of the applicant summaries.  CPANI supports these concerns and considers this approach to be confusing and unhelpful.  

9.55	The section of the applicant summaries also listed the skills and knowledge each applicant demonstrated at interview.  The information included here but not in every case been accurately transferred across from the selection panel’s summary sheet signed off by the panel was not highlighted in the section of the applicant summary presented to the Minister and titled ‘Panel Assessment including skills and knowledge the individual will bring to the role’.

9.56	Recommendation: The Department must ensure any findings recorded by the panel are accurately conveyed to the Minister.

Ministerial Decision

…

9.58	On 11 October 2016 the Minister selected two applicants, both male, for appointment, and one female applicant to be placed on a reserve list.  The Minister cited the particular skills of the successful candidates in justification of his selection decision.  One of the skills he cited in justification was the skill omitted for the candidate not appointed as described in 9.55 above.”

2.18	It was not disputed the selection panel, following interview, found as follows:-

		Candidate No	Sex		Panel Score		Final Outcome

		 4			Male		25			Unsuccessful

		 9			Male		23			Unsuccessful

		10 (Deep Sagar)	Male		20			Successful

		22			Male		21			Unsuccessful

		23 (Claimant)	Female	22			Selected Reserve

		28 (Richard Johnston) Male	20			Successful

2.19	The applicant summaries prepared by Ms Catrona, which were approved by the members of the selection panel, of the claimant and the two successful candidates, the claimant’s comparators, which were presented to the first respondent stated as follows:-

		“(A)	Name: Geraldine Donaghy

		Background and Career History

Ms Donaghy has a background in the voluntary, public and private sectors.  From 1986 – 2008, Ms Donaghy was the CEO of a large voluntary organisation in the Newry and Mourne area.  In the CEO role she gained experience in finance, human resources, government and project management, this included the acquisition of a Victorian Mill which was then successfully refurbished and turned into a valuable resource for the community, voluntary organisations and local business (Ballybot House).  In 2008 she became a self-employed consultant and then in 2015 she established a guest house business.  She was a non-executive director on the Regulation Quality Improvement Authority (2006 – 2013) where she chaired a public participation initiative.			[Tribunal’s emphasis]

Panel assessment including skills and knowledge the individual will bring to the role

She provided satisfactory or good evidence across most or all of the criteria.  At interview she demonstrated skills and knowledge in corporate governance, strategy, leadership, public accountability and communication.

Current Public Appointments Held

Ms Donaghy is currently a Commissioner for Charity Commission NI                (2013 – 2016).  She is also a current non-executive member for Warrenpoint Harbour Authority (2012 to date), and is a member of the Audit Committee and is a former member of the Remuneration Committee.

Time commitment

No issues.

Probity and Conflict of Interest

No conflicts of interest declared on application or at interview.

(B)	Name: Richard Johnston

Background and Career History

Mr Johnston was lead economist within Invest NI (DETI) from 2003 – 2013, where he advised the senior executive, Board and Minister on the economic impact offered by various strategies, programmes and projects.  He is the Associate Director in the Ulster University Economic Policy Centre since 2013.  He has responsibility for finance, contracts, staff, procurement, risk management and recruitment.  He also has the lead role on a number of research streams including: the economic impact of Corporation Tax in NI, the economic impact of cruise ship visits to Belfast Port and local Government.  The research streams generate c200K of income per annum. 

Panel Assessment including skills and knowledge the individual will bring to the role

He provided satisfactory evidence across most or all of the criteria.  At interview he demonstrated skills and knowledge in economics, public accountability and business planning.  He has specialised knowledge of the NI economy and at Newry, Mourne and Down local economy of which WHA is part.							[Tribunal’s emphasis]

Current public appointments held

No public appointments held

Time commitment

No issues

No conflict of interest declared on application or at interview									
(C)	Name: Deep Sagar

Background and Career History

Mr Sagar has a wide range of commercial, private and public sector experience.  He has worked extensively in food and drink manufacturing industries.  Roles included general manager, distribution manager, commercial manager and marketing director.  His background also includes the director of distribution handling large transport/logistics operations in Unilever, Bestfoods and Coca-Cola.  His experience includes finance, governance and employee relations.  He has public sector experience having held a range of public appointments as chair and member across the UK including, the Planning Inspectorate (2007 – 2011), the National Lottery Commission (Chair of Audit and Risk) (2007 – 2013) and was Chair of Flood Risk Management Wales (2010 – 2015).

Panel Assessment including skills and knowledge the individual will bring to the role

He provided satisfactory evidence across most or all of the criteria.  At interview he demonstrated skills and knowledge in logistics, commerce, industry, human resources, contract negotiations, planning, corporate governance and public accountability.			[Tribunal’s emphasis]

Current public appointments held

Mr Sagar is currently the chair of the Governing Body for the South Eastern Regional College, he is a current Board Member for Children and Family Court Advisory and Support Service (NDPB in England) (2015 to date).  He is also Parole Board Member from 2007 and Member of Employment Tribunals since 2005.

Time commitment

No issues.

Probity and conflicts of interest

No conflicts of interest were declared on application or at interview.”

2.20	In the Panel Summary Statement, prepared by the interview panel, at the conclusion of the interviews and signed by the panel, the panel set against each selection criteria, the panel mark and summary evidence (for panel’s consensus rating).  (This should include a record of the candidate’s relative strengths against each criterion.).  In the applicant summaries prepared by Ms Catrona for the first respondent, as referred to previously, and drawn from the Panel Summary Statement, it was stated, in respect of the claimant, Mr Johnston and Mr Sagar as follows:-

(i)	Provided satisfactory or good evidence across most or all of the criteria (claimant).

(ii)	Provided satisfactory evidence across most or all of the criteria (Richard Johnston).

(iii)	Provided satisfactory evidence across most or all of the criteria (Deep Sagar).

Reference has already been made, as set out in Paragraph 9.53 of the CPANI audit report, referred to in Paragraph 2.17 of this decision, to criticism of this wording in the said applicant summaries.  

As set out in the memos dated 3 June 2016 and 30 June 2016, relevant experience, governance control and accountability, interpersonal and communication skills and judgment and decision-making were core criteria and completed by all applicants; whereas financial management, developing and delivery strategy or organisational change were optional criteria and the applicants selected one of the criteria.  

Given the said distinction made between core criteria and optimal criteria, the tribunal would have expected on any such summary sheet, given the importance in this process of the said criteria, that the above distinction between the said criteria would have been made and/or apparent from the panel summary statement, prepared by Ms Catrona, approved by the panel and subsequently given to the first respondent to make his decision.  (See further the audit report by CPANI and the recommendations therein at paragraph 2.17 of this decision).

2.21	It is also necessary to note that, as set out in the said memorandum of 30 September 2016, at Paragraph 21, it was stated:-

“To help you make an informed decision the applicant includes details gleaned from the application form and the interview, of the background and career history of each candidate suitable for appointment’, ‘information on the panel’s assessment of the candidate against the selection criteria, highlighting the skills and strengths shown at interview and the panel’s conclusions about the skills and knowledge each candidate will bring to the role  … .”

It is apparent, in respect of the panel summary, which was prepared by Ms Catrona, for each candidate, she was faced with a difficult task of summarising considerable information.  Regardless of the candidates, and depending on the interview notes of the members of the panel, the contents of, on average, some 60 or so pages approximately had to be considered and then reduced by Ms Catrona to one single page summary in respect of each candidate, as referred to previously, who were the subject-matter of the said memorandum (see later).  

2.22	The first respondent was co-opted as a member of the Northern Ireland Assembly in 2012 and was appointed Minister of the second respondent in May 2016.  This was the first Public Appointment decision he was required to make as Minister for the Department for Infrastructure in the Northern Ireland Executive.  (The first respondent, in the 2017 General Election, subsequently was elected as the Member of Parliament for South Down.)

	The first respondent, following receipt of the memorandum dated 30 September 2016, and before he made his decision, as set out in his response in the e-mail dated 12 October 2016, discussed the process ‘informally’ with his then Special Adviser (SpAd).  No record was kept of the said discussion by either himself or the SpAd; save that he had informed his SpAd what he intended to do and he had asked the SpAd did it flag up any issues or problem as they went both through the memorandum of 30 September 2016 and the SpAd had responded he was content with the decision the first respondent intended to make as subsequently set out in the e-mail dated 12 October 2016.  The first respondent did not consider that such a discussion in his office, about such a decision, required to be recorded in any way.  The tribunal noted that in the memorandum dated 30 September 2016, there is a section headed ‘Special Adviser’s Comments’; but nothing was noted by Mr McGrath.  However, it is apparent that the SpAd had some input, however limited, in this process, as referred to above, which was not recorded, in writing, in any document relevant to the recruitment process.

2.23	The first respondent, in evidence, described in some detail how he came to make his said decision to appoint the two successful candidates, which evidence, the Tribunal sets out, as appropriate, in the following paragraphs.  

2.24	The first respondent, in his witness statement, which he adopted, in the normal way, as his evidence-in-chief, prior to cross-examination by the claimant, stated as follows, insofar as relevant:-

“2.	At the outset of this appointment process I opted for a list of unranked candidate names to be presented to myself as I wanted flexibility to appoint who I thought was the most appropriate candidate.  I was also aware that unranked candidate lists had become a common feature of Ministerial appointment processes.  Furthermore, I also believe the person who prepares best for an interview is not necessarily the best person for a job; and that the ability to do the     day-to-day role is more important to me than reliance solely on an interview score.

 3.	I can confirm that none of the candidates were known to me personally, in fact I have never to this day communicated with any of the candidates successful or otherwise.  With this in mind I can also categorically state that I had no personal interest in who was appointed.  My only interest was appointing two individuals whom I believed had the best skill set available to them to perform to the level expected as Board Members of a strategically important harbour.
								[Tribunal’s emphasis]

…

5.	As a local political representative in the South Down Constituency, where the Warrenpoint Harbour is located I am well aware that the Harbour faces considerable economic challenges as a result of the referendum on a British withdrawal from the EU.  With this in mind I was drawn to Mr Richard Johnston’s considerable experience, skills and knowledge of national and local economic issues – especially his specialised knowledge of the local Newry, Mourne and Down local economy, of which the Warrenpoint Harbour is a key part.
								[Tribunal’s emphasis]

 6.	Similarly I am also aware that the Warrenpoint Harbour Authority has endured HR problems in recent years.  With this in mind I was drawn to Mr Deep Sagar’s experience in human resources and employee relations.  I was also interested by his experience, skills and knowledge of logistics.  As one of Ireland’s fastest growing ports, and ideally situated approx. halfway between Belfast & Dublin, there exists considerable potential to develop a logistic hub connected to the harbour.  Seeing Mr Sagar’s background and career history I believed that having somebody on the Board of the Harbour with said skills was an excellent opportunity not to be passed up.	[Tribunal’s emphasis]

 7.	As a member of the Warrenpoint Harbour Authority at the time of the decision, I was keen for Ms Geraldine Donaghy to be placed on the reserve list.  In the event of requiring the reserve candidate to be appointed to the Board, I thought it would be advantageous if that person had knowledge of the role so as to fit seamlessly as possible into place during what no doubt would be a challenging period for the Harbour Authority.  Further to her experience on the Board, I was drawn to her leadership and communications skills.

… .”

2.25	In the course of his evidence the first respondent further accepted that in relation to Paragraph (xi) of his response, dated 11 October 2016 to Mr McGrath’s submission of 30 September 2016, appointing Mr Johnston and Mr Sagar, as referred to in Paragraph 2.13 of this decision, it should have properly read “  …  Deep Sagar particularly for skills and knowledge in logistics and human resources” not, as stated, “for skills and knowledge in logistics and particularly human resources”.  He accepted it was a ‘lazy’ inclusion by him of the word ‘particularly’ at that point in the sentence, relating to the reason for Mr Sagar’s appointment and it suggested a greater importance for the criterion of human resources in relation to the said appointment than was intended by him.

2.26	The first respondent, in evidence, also confirmed, that as it was a ministerial appointment, as the relevant Minister, he wanted to play an active role and did not want it to be a rubber-stamping exercise carried out largely by officials.  He held to the view that those who performed well at interview were not necessarily the most suited for the actual role.  He acknowledged the interview process played a large role in arriving at the shortlist of the appointable candidates, any of whom could be appointed on merit.  Therefore, when he received the applicant summaries, the merit principle had been applied throughout the process, with the interview panel measuring objectively the merits of the respective candidates.  The applicant summaries of the six appointable candidates, unranked and with no scores, which set out a mix of their background and experience, with some of the skills and experience drawn out in the said interview process and from the application form, provided him with a useful synopsis to enable him to make a decision at the end of the process.  In particular he saw his role, as Minister, in accordance with the guidelines in the ‘Ministerial Choice’ document and the guidelines of the merit principle, to select who he felt had the best skills for the job.

2.27	The tribunal noted that the first respondent had properly taken account of the steps taken by the second respondent to encourage diversity on the Board of the Warrenpoint Harbour Authority and the steps taken to try to achieve this in this process; but also he had properly recognised, in making any appointment, it was not for him to engage in ‘positive discrimination’ which would have been unlawful.  He confirmed, in evidence, it was for him to make his choice, on the grounds of merit, the person who he felt was best qualified on their skills for the role based on the summaries provided to him, as set out above, in the memorandum, dated 30 September 2016; and, as a consequence his said appointment decision was thereby fair and evidence-based.

2.28	The first respondent was satisfied it was not necessary for him to meet any of the said candidates, before making his decision because, in his view, the said summaries provided to him, albeit slim, had sufficient information to make his decision.  He said that, before making his decision, he considered the entirety of each summary (ie, including, in particular, the section in each summary headed ‘Background and Career History’ together with ‘Panel Assessment including skills and knowledge the individual will bring to the role’).  However, the Tribunal was of the view his major concentration at all times was on the Panel Assessment section of the summary and not the Background and History, when he considered the summaries and then made the said two appointments of Mr Johnston and Mr Sagar with the claimant as reserve.  When considering the claimant’s summary, the reference to the claimant’s HR skills had been placed by Ms Catrona, in the claimant’s Background and Career History and not in the Panel Assessment of Skills and Knowledge the individual will bring to the role.  This was clearly unfortunate, given his said concentration, when making the appointments on the Panel Assessment section.  However, in the event, the Tribunal is satisfied, even if the reference to the claimant’s HR skills had been properly placed by Ms Catrona, in the Panel Assessment section, this would not have made any difference to the decisions made by the first respondent to appoint Mr Johnston and, in particular, Mr Sagar (see later).

2.29	When making his decision to appoint Mr Johnston and Mr Sagar, with the claimant in the position of reserve, on the basis of the role specification and criteria set out in the memorandum of Mr McGrath, which said specification and criteria he had previously agreed, the first respondent made it clear that at all times he was seeking the skills he thought best suited to the job.  The role specification and criteria clearly set out, in his opinion, the skills sought and the challenges that might have to be overcome in the said role, thereby giving him a good understanding what he was looking for .  After reading the summaries and, in particular, the background experience and aid skills referred to in the summaries, he quickly identified three or four candidates whom he thought were the ‘stand out’ candidates. 

2.30	The first respondent then studied, in more detail, the summaries of these “stand out” candidates.  He was ‘struck by one of the candidate’s (Mr Johnston) background, career history, skills and knowledge in economic matters, which he thought was a very important skill set and experience given the role of the harbour in the wider economy, especially in regard to two particular matters.  These two matters, which he outlined in evidence, were that he was making a decision a few short months after the (June) EU referendum result, resulting in withdrawal from the EU, which would mean, in his view, “significant economic challenges facing the Warrenpoint Harbour, situated where it was basically on the Border between North and South, and also the huge amount of trade”.  He felt the skills identified by him, in relation to Mr Johnston, were the skills that could not be passed up.  Significantly, he pointed out, in his evidence, the criterion set out the Minister may like to see specialist knowledge in local economic matters/local expertise in economic matters or, as he then put it, “something along those lines”.		[Tribunal’s emphasis]

It is necessary to interject and point out the said criterion, as referred to previously, stated “an understanding of the port’s role in the local economy”.  In the mind of the first respondent, as the local representative for the area in which the Warrenpoint Harbour was situated, he believed he had a very acute understanding that Brexit and ‘economic matters’ would be the determining factors and success in the Warrenpoint Harbour going forward.  In evidence, he stated, in his opinion specialist knowledge of the NI economy, (Tribunal’s emphasis) which Mr Johnston had, was the same as specialist knowledge of the local economy and Mr Johnston therefore satisfied the said criterion.  Indeed, as referred to earlier in this decision, in the first respondent’s response, dated 12 October 2016, he referred to Mr Johnston’s specialist knowledge of the ‘NI economy’ (Tribunal’s emphasis).  During the course of his evidence, the first respondent, when justifying his appointment of Mr Johnston and the specific skills and experience he would bring to the position, he referred to ‘the wider Irish economy/the harbour’s position on the border between North and South/the economic corridor’ and main trade route but also how ‘you can’t simply talk about a Warrenpoint local economy it is very much about a regional economy’

In the press release, dated 20 October 2016, as referred to previously in this decision at paragraph 2.14, the emphasis, in the opinion of the tribunal related to Mr Johnston’s experience as an economist in the wider Northern Ireland economy.

2.31	The tribunal, therefore, concluded that, when applying the said criterion relating to the port’s role in the local economy, the first respondent interpreted this in the context of the ‘wider NI economy/regional economy’ and not the ‘local economy’, in the sense of the Warrenpoint, Newry and Mourne area.  Given this interpretation, the tribunal could well see that Mr Johnston’s skills were considered by the first respondent to more relevant than those of the claimant.

2.32	In relation to the appointment Mr Sagar, the tribunal concluded the first respondent decided his major concentration would be on the criterion relating to specialist knowledge and experience of ‘logistics’ and, only to a minor extent, despite what was stated on the appointment of Mr Sagar, in his response dated 12 October 2016 (see before) in relation to the issue of Human Resources.

	It must be noted the claimant did not have any logistics experience.  Given the concentration on logistics, the tribunal is satisfied how her Human Resources’ experience, albeit placed in background and career history by Ms Catrona would have made no difference to the decision made by the first respondent to appoint Mr Sagar and the claimant as reserve.  The tribunal is satisfied the first respondent, in making this appointment, was determined to appoint the person with the knowledge and experience of the logistics, one of the said criterion.

	As we noted this criterion was not highlighted in the job specification, or weighted in anyway as a criterion.  However, when the first respondent came to make his appointment, having read the summaries prepared by Ms Catrona, and approved by the panel, it is clear to the tribunal he was at all times looking for a person with a skill set in experience in logistics and, given what was stated in Mr Sagar’s summary, his candidacy interested him greatly to the effective exclusion of the other appointable candidates.  

2.33	The tribunal has no doubt that, in concentrating on the criterion of logistics, and not any of the other criterion, the first respondent did so because, at the time of making this appointment, he was preparing for a ministerial visit to Shanghai in China and, in particular, the harbour at Shanghai.  As part of his preparation for that visit, the information provided to him included considerable briefing material on Shanghai’s harbour as a logistics hub in that region and the success of the harbour as such a logistics hub.  The first respondent, with his background, considered any successful harbour should have such a logistics function.  He considered Warrenpoint, given its position and location on the economic corridor between North and South, should also have the potential to develop such a logistics hub, which would be in keeping with the strategic objectives and aims of the harbour and the local economy (ie the wider Northern Ireland economy – see before) and would help to create employment in the area of the harbour.

2.34	The first respondent did not dispute, in evidence, when the candidates’ summaries were considered by him, the reference therein to the distinctions in the panel assessment, arising from the said interviews between good/satisfactory in relation to the various criteria.  However the tribunal is satisfied the first respondent had no regard, when making these appointments, in the circumstances outlined previously, to these said distinctions.  In any event, any such distinctions were not, in his view, distinctive enough admitted to the interview process; whereas he was dealing with a list of six unranked and appointable candidates following such interviews (see before the CPANI audit and recommendations therein at paragraph 2.17 of this decision).

3.	Relevant Law

Discrimination

3.1	The Sex Discrimination (Northern Ireland) Order 1976 (‘the 1976 Order’) provides:-

	Article 3 of the 1976:-

	“(2)	In any circumstances relevant for the purposes of any provision of this Order … a person discriminates against a woman if –

		(a)	on the ground of her sex, he treats her less favourably than he treats or would treat a man.”

		Article 8 of the 1976 Order:-

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

				(a)	in the arrangement he makes for the purpose of determining who should be offered that employment, or

				(b)	in the terms on which he offers that employment, or

				(c)	by refusing or deliberately to offer her that employment.”

	Article 63 of the 1976 Order (Burden of Proof):-

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

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

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

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

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

3.2	In relation to the burden of proof provisions set out in Regulation 42 of the Age Regulations the English Court of Appeal in the case of Igen  v  Wong [2005] IRLR 258, considered similar provisions, relating to sex discrimination, 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.  (See further Martin Devonshires Solicitors [2011] ICR 352.)

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 … .”

	At Paragraph 72 of the judgment Mummery LJ emphasised that:-

“Such evidence from the respondent could, if accepted by the tribunal be relevant as showing that, contrary to the complainant’s allegation of discrimination, there is nothing in the evidence from which the tribunal could infer a prima facie of discrimination on the proscribed ground.  As Elias J observed in Laing … para 64, it would be absurd if the burden of proof moved to the respondent to provide an adequate explanation for treatment which, on the tribunal’s assessment of evidence, had not take place at all.”

3.5	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:-

“17	The process logically that [Article 45] requires of a tribunal is somewhat artificial.  It requires a two-stage approach in logic, which is not usually reflected in the way in which evidence is received by the tribunals.  Though the analysis must be in two parts the evidence comes in one bit.  In a reflection of factual circumstances Elias J ... in Laing  v  Manchester that a tribunal is drawing the inferences that it might have to draw could legitimately consider, and should legitimately consider, all the evidence put before it prior to concluding whether the burden of proof had shifted so as to require an explanation from the employer that the acts complained of had in no way been taken on the ground of [age], and cogently establishing that, he drew a distinction between facts – that is evidence – on the one hand and explanation on the other.  He noted that a tribunal did not necessarily fall into error merely because it failed to adopt a two-stage approach though (see Paragraph 73) no doubt in most cases it would be sensible for a tribunal formally to analyse a case by reference to those two stages.  He reminded tribunals that the focus of their analysis must at all times be the question of whether or not they can properly and fairly infer race discrimination.

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’ ... .”

In Deman  v  Commission for Equality and Human Rights [2010] EWCA Civ 1279, Sedley LJ suggested the ‘more’ needed to create a claim requiring an answer need not be a great deal and could include a non-response, or an evasive or untruthful answer to a statutory questionnaire or can be furnished by the context in which the act has allegedly occurred.  

This issue again rose in a further recent decision by the Employment Appeal Tribunal in the case of Veolia Environmental Services UK  v  Gumbs [UKEAT/0487/14] where the EAT recognised Igen and Madarassy in Hewage:-

“All exhibits the same tension; had 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 …”

In Effa  v  Alexandra Health Care NHS Trust [1999] (unreported) Mummery LJ held:-

“It is common ground that an error of law is made by the tribunal if it finds less favourable treatment from which it can properly made such an inference … in the absence of direct evidence on an issue of less favourable treatment on racial grounds, the tribunal may make inferences from other facts which are undisputed or are established by evidence.  However in the absence of adequate material from which inferences can properly be made, a tribunal is not entitled to find the claim proved by making unsupported legal or factual assumptions by disputed questions of less favourable treatment on racial grounds.  This is so whether the discrimination is alleged to rise from conscious or sub-conscious influences operating in the mind that the alleged discriminator”.

Approved by Simler J in Chief Constable of Kent Constabulary v Bower [2017] UKEAT/0214/16.  

	Further, as seen in R (on the application of E)  v  Governing Body of JFS and Others [2010] IRLR 136, Lady Hale (Paragraphs 62 - 64) emphasised that, in all but the most obvious cases involving direct discrimination, a tribunal requires to consider the mental processes, whether conscious or sub-conscious of the alleged discriminator.  It held, as set out in the head note of the judgement, 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 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 considering in deciding when the burden of proof had shifted.  In Gallop  v  Newport City Council [2016] IRLR 395, it was held a false explanation of a difference of treatment in the context of a difference in status, particularly if a lie/dishonesty, as suggested in Paragraphs 26 and 27 in Birmingham CC  v  Millwood [UKEAT/0564/11] and Solicitors Regulation Authority  v  Mitchell [UKEAT/0497/12] likely to be ‘something more’ in relation to shifting the burden of proof that need not always be so; but, however, the Employment Appeal Tribunal emphasised each case depends on its own facts.  

3.6	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.

	In Pnaiser  v  NHS England [2016] IRLR 170, Simler J stated:-

“Although it can be helpful in some cases for tribunals to go through the             two-stages suggested in Igen  v  Wong, as the authorities demonstrate, it is not necessarily an error of law not to do so and, in many cases, moving straight to the second stage is sensible ... .”
	
In Shamoon it was further held, in order for a disadvantage to qualifying as a detriment, it must arise in the employment field, in that a court or tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he thereafter had to work.  An unjustified sense of grievance cannot amount to a detriment (see further Derbyshire and Others  v  St Helen’s Metropolitan BC and Others [2007] ICR 841).  As held in Bowler  v  Chief Constable of Kent Constabulary [2017] UKEAT/0214, following Shamoon and Derbyshire, the grievance must be objectively reasonable as well as perceived as such by the claimant.

3.7	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.”

In Laing  v  Manchester City Council [2006] ICR 1519 Elias J emphasised the distinction between ‘facts’ and explanation, in applying the burden of proof provisions:-

“51.	…  First, the onus is on the complainant to prove facts from which a finding of discrimination, absent an explanation, could be found.  Second, by contrast, once the complainant lays that factual foundation, the burden shifts to the employer to give an explanation.  The latter suggests that the employer must seek to rebut the inference of discrimination by showing why he has acted as he has.  That explanation must be adequate, which as the courts have frequently had cause to say does not mean that it should be reasonable or sensible but simply that it must be sufficient to satisfy the tribunal that the reason had nothing to do with race:  … .”

…

59.	…  In our view the reference to ‘the claimant proving facts’ ... does not mean that it is only the facts adduced by him (plus supporting facts adduced by the respondent) that can be considered; it is merely indicating that at that stage the burden rests on the claimant to satisfy the tribunal, after a consideration of all the facts, that a prima facie case exists sufficient to require an explanation.

 60.	Second, the obligation for the employer to provide an explanation once the prima facie case has been established, strongly suggests that he is expected to provide a reason for the treatment.  An explanation is just that; the employer must explain.  Why has he done what could be considered to be a racially discriminatory act?  …

…

 68.	That is not to say that fact and explanation are hermetically sealed compartments.  There is plainly a relationship between them.  … facts are not unrelated to the explanation, although they are not to be confused with it.

Laing was approved and followed in Madarassy.  The said legal authorities therefore confirm that it is only the explanation that cannot be considered at the first stage of the analysis.  Evidence produced by a respondent can properly be taken into account by a tribunal in deciding the facts to see if a prima facie case of discrimination has been made out by a claimant.

3.8	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 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 .  

3.9	The new classic test for discrimination was contained in Shamoon  v  Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 and later summarised by Lord Hoffman in Watt (Carter)  v  Ahsan [2008] 1AC 693 at Paragraph 36, as follows:-

“(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: section 3(4).

(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.”

At the heart of any discrimination case is a comparison, as referred to above.

Rimer LJ in Lockwood  v  Department of Work and Pensions [2013] EWCA Civ 1195, stated:-

“ ... The whole purpose of the comparison is as an aid to seeing whether or not the way in which the comparator was, or would have been, treated in the relevant circumstances supports the claimant’s allegation that he was subjected to less favourable treatment on the ground of [age].”

Under Regulation 3(2) of the Age Regulations the relevant circumstances for the purpose of any such comparison is that in the one case they are the same or not materially different in the other.

This has been the subject of some legal guidance.  For example, in Amnesty International  v  Ahmed [2009] ICR 1450 reference was made to cases where the treatment itself is inherently discriminatory so examination of the respondent’s reasoning becomes irrelevant and the use of a comparator may be dispensed with.  Similarly Hewage held that the ‘no material difference rule’ does not mean the comparator needs to be identical to the claimants whether the comparator is appropriate is a question of factual degree.  Even where the comparator’s circumstances differ materially from those of the claimant, the comparator may still be useful in constructing a hypothetical comparator (see as referred to previously Watt  v  Ashan [2008] ICR 82).

However, helpfully, in Islington London BC  v  Ladele [2009] ICR 387, Elias J, in light of Ashan and Shamoon (see before) stated that ‘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’.

(See further D’Silva  v  NATFHE [2008] IRLR 412, Chondol  v  Liverpool City Council [2009] UKEAT/0298 and Dr Kalu  v  Brighton & Sussex University Hospital NHS Trust [2014] EqLR 488 – where the approach in Ladele was endorsed.)

In GMB  v  Henderson [2015] IRLR 451, Simler J – concluded that where a decision is tainted by discrimination the comparative approach will be ‘a meaningless comparison that produces the wrong answer.  The focus should be on the reason for the treatment bearing in mind that there may be more than one’.

Clearly, the above guidance is of particular relevance when considering how, in a particular case, the burden of proof provisions should operate, as referred to previously.

3.10	In recent cases, there has been an analysis of the issue whether the tribunal considers the mind of the individual decision-maker or whether a tribunal can look at the motivation (conscious or unconscious) of other individuals.

	In IPC Media  v  Millar [2013] IRLR 707, Underhill LJ, in a disability discrimination case, concluded you cannot be influenced (consciously or unconsciously) by something of which you are unaware and the starting point is to identify the individual responsible for the act or omission in question.  

	In Lewis  v  HSBC Bank PLc [2006] UKEAT, HH Peter Clark, in a discrimination case, rejected a suggestion there was a principle of ‘unconscious’ (as distinct form ‘sub-conscious’) discrimination.  He emphasised to so hold would amount to establishing strict liability for unlawful discrimination, to hold a discriminator for a state of affairs of which he has no knowledge.  In his judgment this was not the effect of discrimination legislation.

3.11	In the recent Court of Appeal decision in the case of CLFIS (UK) Ltd  v  Reynolds [2015] ICR 1010, a claim of age discrimination, the Court of Appeal looked at the issue of sole/joint decision-makers.  Underhill LJ acknowledged that, if the decision to terminate the claimant’s contract had been made jointly by X and Others, the tribunal would have had to be concerned with the motivation of all those responsible, since a discriminatory motivation on the part of any of them would be sufficient to taint the decision.  On the facts it was found X reached his decision as a result of information provided and opinions expressed by others, which were passed up a chain of management to X.  Underhill LJ said that was not the same as them being parties to the decision.  Supplying information or opinions which are used for the purpose of someone else does not constitute participation in the decision.  He accepted it may be difficult on occasions to distinguish between the two situations.  

	He therefore held, on the facts, this was not a joint decision-making situation but was a situation where an act, which is detrimental to the claimant was done by an employee who was innocent of any discriminatory motivation but who had been influenced by information supplied or views expressed, by another employee whose motivation was or was said to have been, discriminatory.  Underhill LJ identified two possible approaches to this situation the composite approach where the acts of X could be brought together with the motivation of Y and the ‘separate acts’ approach which focuses on each stage of the decision-making separately.

	Underhill LJ decided the separate acts was the correct approach.  On the facts, applying this approach the claim did not succeed.

	He therefore held that a person may be less favourably treated on the grounds of a protected characteristic either if the act complained of is inherently discriminatory or if the characteristic in question influence the mental processes of the putative discriminator, whether consciously or unconsciously, to any significant extent.  Further, fundamental to the scheme of the legislation that liability can only attach to an employer where an individual employee or agent for whose act he is responsible has done an act which satisfies the definition of discrimination.  That means the individual employee who did the act complained of must himself have been motivated by the protected characteristic.  There is no basis on which his act can be said to be discriminatory on the basis of someone else’s motivation.  Accordingly, the correct approach in a tainted information case is to treat the conduct of the person supplying the information as a separate act from that of the person who acts on it.  

	In Gallop  v  Newport CC [2016] UKEAT/0118 the Employment Appeal Tribunal, in the judgment of HH Judge Hand QC, followed CIFIS and the judgment of Underhill LJ, and held:-

“In the case of a sole decision maker it is his or her state of mind not the state of mind of those providing information to the decision maker which is material.”

	In a recent decision, Kerr J, in the case of Metropolitan Police  v  Denby [UKEAT/0314/16] referred to the decision in CLFIS in the following terms:-

“The ratio of CLFIS is simple:  where the case is not one of inherently discriminatory treatment or of joint decision-making by more than one person acting with discriminatory motivation, only a participant in the decision acting with discriminatory motivation, is liable; an innocent agent acting without discriminatory motivation is not.  Thus where the innocent agent acts on ‘tainted information’ (per Underhill LJ at Paragraph 34), ie ‘information supplied, or views expressed, by another employer whose motivation is or is said to have been discriminatory’, the discrimination is the supplying of the tainted information, not the acting upon it by the innocent recipient.”

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, and after consideration of the submissions of the claimant and the respondent’s representative reached the following conclusions, as set out in the following sub-paragraphs.

4.2 	The tribunal shares the concerns identified by CPANI from the audit report issued in June 2017, relating to 19 instances of “less than best practice” about this recruitment process, as referred to previously in paragraph 2.17 of this decision.  Indeed, the tribunal has no doubt that the recommendations set out in the said audit report must be fully and properly addressed in any future appointment process by the second respondent.  

4.3	Given that the claimant made no claim of sex discrimination against Ms Catrona, Mr McGrath or the other members of the interview panel, it was not necessary for the tribunal to consider the audit report and/or the recommendations in any further detail.  However, the tribunal is of the opinion that, if similar evidence of less than best practice were to arise in any future recruitment process, where there is a claim of unlawful discrimination, such failures might require to be further considered and/or their relevance, in any particular case, to such claims of unlawful discrimination.  In particular, the tribunal has serious concerns about the current standard practice of the second respondent to only provide the relevant minister with brief applicant summaries for the appointable candidates, following interview.  Given the detailed application form of each candidate, the considerable documentation, as referred to previously, generated by this interview process itself, it is inevitable that what is put in the limited summary is somewhat subjective and less than objective; and, indeed, may paint a less than accurate picture of a particular candidate.  As a consequence, this may give rise to allegations of less favourable treatment by an unsuccessful candidate.  Many such allegations, if not all, depending on the particular circumstances, may be able to be avoided, in the tribunal’s opinion, with more detailed and accurate summaries prepared for the minister.  The tribunal understands that regard has to be had, by the second respondent, to the heavy workload and time constraints upon any minister; but this cannot be to the detriment of a candidate who wishes to apply for a public appointment by a Minister.  

	Further, if the minister’s SpAd is to play any part in any such recruitment process, involving the relevant Minister, then any such involvement must be properly minuted.  As referred to previously, the tribunal was satisfied, in this particular case that the involvement of the minister’s SpAd in this particular case was not relevant to the determination of the claimant’s claim.

	The tribunal has no doubt that, if these concerns, as referred to above, had not arisen in these particular proceedings, many of the issues raised and evidence given to the tribunal could have been avoided and indeed might have avoided the necessity for the proceedings themselves.

4.4	In these particular proceedings, the centra issue, to be determined by the tribunal, related to the decision by the first respondent to appoint Mr Johnston and Mr Sagar.  

	In relation to the appointment of Mr Johnston, the tribunal is satisfied that the first respondent did not properly apply the criterion, which appeared in the information pack and had been previously approved by him, namely “special knowledge or experience which would be of value to the Commissioners in the discharge of their function including … an understanding of the port’s role in the local economy”.  In particular, in the judgement of the tribunal, the first minister wrongly interpreted “local economy” in this criterion to mean “NI economy/regional economy”.  The tribunal therefore had considerable sympathy with the claimant who had interpreted, properly in the tribunal’s view, this criterion to mean local economy in the sense of Newry and Mourne area, of which she clearly had considerable knowledge and experience.  If the minister and/or the second respondent always intended this criterion to mean “NI economy/regional economy”, then this should have been made explicit in the criterion, which clearly would have been an easy task to achieve by those drafting the relevant documents.  In view of the first respondent’s interpretation, this inevitably gave rise to the claimant’s concern of less favourable treatment.  However, the claimant could only succeed in her claim if she could also show that, by interpreting this criterion, as set out above, in the appointment Mr Johnston, one of the six apppointable candidates following interview, any such less favourable treatment was on the grounds of sex.  The tribunal was not satisfied that the claimant could show such treatment was on the grounds of sex.  There was no doubt, applying the first respondent’s interpretation of this criterion, Mr Johnston had the said knowledge and experience of the NI economy/regional economy.  The reason for the appointment was therefore not because of sex.  In the opinion of the tribunal, the failure to properly define this criterion from the outset of this recruitment process, has given rise to these proceedings and could have been avoided by appropriate drafting of the criterion to achieve what clearly the first respondent, the Minister, wanted to achieve, when making this appointment.    

4.5	In relation to the appointment of Mr Sagar, the tribunal has no doubt that the first respondent, in essence, picked out/highlighted from all of the other criteria, the criterion of the logistics; albeit it was not so picked out and highlighted or indeed weighted in any of the documentation sent to the candidates in the information pack at the outset of this recruitment process.  There is no doubt that, under this recruitment process, the first respondent was entitled to so pick out/highlight one criterion to the exclusion of others, when making his selection from the appointable candidates following interview.  Given his ability to do so, it is not for the tribunal to consider this issue further.  However, in the absence of highlighting or weighting of this criterion, the tribunal has considerable sympathy for the claimant.  She had no idea that this criterion was in fact to be, in essence, highlighted/weighted by the first respondent when making his said selection.  Of course, it has to be recognised that this claimant did not satisfy this criterion and, since the first respondent was making his selection only from this criterion, it was inevitable that the claimant’s application would fail.  As stated previously, the issue of the claimant’s Human Resource knowledge and experience in comparison to that of Mr Sagar was not, in the circumstances determinative of the said selection.  Clearly, if the claimant had known that this criterion of logistics was to attract the emphasis by the first respondent, for the reason set out previously in this decision, it is likely that many of the issues and the evidence that had to be given in these proceedings might have been avoided.  Again, in the opinion of the tribunal, the reason for the said appointment was not on the grounds of sex.

4.6	In light of the foregoing, the tribunal, although it had considerable sympathy for the claimant for the reasons set out above, this does not mean the claimant is entitled to succeed in her claim of sex discrimination.  The tribunal, having carefully considered the evidence and the documentation, as referred to previously in this decision, could find no evidence that the first respondent, when appointing Mr Johnston and Mr Sagar did so on the grounds of sex.  The tribunal noted, in this context, the claimant was appointed as a reserve candidate and not any of the other male candidates; but also that one of the other male candidates, who had scored better than the claimant and Mr Johnston during the interview process, had similar knowledge of the local economy (Newry and Mourne), as referred to in the relevant applicant summary but who was also not appointed.

	In the circumstances, the claimant’s claim of sex discrimination must fail.

5.	The claimant’s claim of sex discrimination is therefore dismissed. 

Employment Judge:

Date and place of hearing:  13, 14, 15 and 17 November 2017, Belfast

Date decision recorded in register and issued to parties: