FAIR EMPLOYMENT TRIBUNAL

CASE REF:	00324/99FET
03687/99SD
03688/99RR

APPLICANT:	Dr Jane Hubbard

RESPONDENT:	Derry City Council 

DECISION
The unanimous decision of the Tribunal is that the applicant was not unlawfully discriminated against on grounds of religion/politics, sex or race.  

Appearances:
The applicant represented herself.
The respondent was represented by Ms A Finnegan, Barrister-at-Law, instructed by J Blair, Solicitor.

1.	The applicant is a Protestant, English woman who applied for the post of Heritage and Museum Services Organiser with Derry City Council in or about 1998.  Interviews did not take place until May 1999.  On 1 June 1999 the applicant was informed that she was unsuccessful.  The applicant’s case is that she was better qualified and had better experience for the post than the successful candidate, and that she was discriminated against on grounds of religion/politics, sex and race.  The successful candidate is perceived as a male Irish Catholic.

2.	The advertisement for the post describes the post as follows:

“The Organiser will have overall responsibility for organising the programme of Heritage and Museum Services with the Recreation and Leisure Department and for managing the facilities within that discipline which currently include the Harbour Museum, Tower Museum, Waterside Workhouse, Amelia Earhart Centre, Foyle Valley Railway Centre and the Museum Store.  The Organiser will have budgetary, financial and staff management responsibilities for the programme as a whole and will be the Council’s senior adviser on all Heritage and Museum Service matters.” 

3.	The advertisement also states that:-

	“candidates must hold a degree in History, Archaeology or a related discipline.  It is also desirable that candidates should possess a post-graduate qualification in Museum Studies or a related discipline.  Candidates must have at least 3/5 years relevant management, curatorial or academic experience at a senior level and be able to maintain and develop strong community and educational links and promote public access and involvement in the programme through exhibitions, workshops, publications and international exchanges and sustain the international reputation of the museum services.”

4.	The personnel specification indicates in relation to qualifications that a “related discipline” should contain “History or Archaeology, Curatorial practice, social History or Geography”.  Mr Aidan Walsh, the Independent Assessor to the panel stated in evidence that a related discipline would normally be a discipline which deals with collections, such as geology or the physical sciences.

5.	In relation to experience the personnel specification states that candidates must have at least 3/5 years relevant management, curatorial or academic experience at a senior level.  Such experience should include some or all of the following:-

•	responsibility for administration, finance and marketing;

•	preparation of annual budgets and controlling of same;

•	liaison and co-operation with relevant organisations/contacts at local, national and international levels;

•	negotiations of contracts and commissioning of exhibitions;

•	control of resources (including staff, premises and equipment);

•	acquiring, curating and presenting collections; and

•	development of historical, heritage or archaeological themes.

6.	The applicant’s qualifications are:

9 GCE ‘O’ level passes
3 GCE ‘A’ level passes
Bachelor of Education (Hons) 2.2
Master of Arts
Doctor of Philosophy
Diploma in Museum Studies
Museums Diploma – Associate A.M.A.

7.	The applicant’s work experience at the date of interview was:

1975-1979	Summer vacation work	
1979-1980	Lecturer I	
1980-1981	Placement Officer, Youth Employment Scheme	
1981	Summer camp counsellor	
1981-1982	Education Officer (Beamish Museum)	
1982-1983	Education Officer (Unemployed Centre)	
1983-1985	Lecturer I (P/T)	
1985-1989	Research for PH.D – “Children’s games in Derry – 
A Social Anthropological Study 	
1989	Welfare Rights Officer	
1989-1990	Job Club Manager	
1991-1996	Assistant Keeper (Ulster-American Folk Park)	
1996 to date of applications	Museums Officer (Causeway Museum Service – Coleraine Borough Council)	

The applicant indicated that in her view the most pertinent experience related to four positions namely:-

Museums Officer (Causeway); 
Assistant Keeper (Folk Park) 
PH.D Research 
Education Officer (Beamish).

8.	The successful candidate’s qualifications are:-

5 GCSE (NI) C grade
Diploma in Continuing Education 
(History, 
Economics, 
Maths, 
English)

B.A. Hons. Communication Studies
		Journalism, Film, Radio, T.V.
		History Units:
		Fenians
		Medieval Ireland
		United Irishmen
		Victorian Leisure
		Marxist analyst of Irish History
		History of Communications

9.	The successful candidate’s work experience at the date of interview was:

1977-1983	Archaeological Draughtsman/Surveyor	
Sept 1987-
April 1988	Computer Designer	
1988-1991	Curatorial Assistant, Derry City Council	
1991-1998	Curator of Museums, Derry City Council	
1998	Acting Heritage and Museum Services Organiser	

10.	The applicant made a number of complaints surrounding the selection process:-

(i)	Firstly she complained that the delay between the post becoming vacant and the interviews was a period of one year.  Since the successful candidate was acting up to the post in question throughout that period, he was advantaged by the delay and she was disadvantaged.

(ii)	She alleged that it was well known in advance of the interviews that the successful candidate, Dermot Francis, would be the successful candidate.  She relied on a conversation which she had had with a local historian named Michael McGuinness at the Harbour Museum.  She also relied on a conversation which she had had with unknown persons who were employed at the admissions desk of the Tower Museum.  None of these persons were called in evidence.

(iii)	She alleged that at her interview she was “directed” not to duplicate information contained in her application form by the Chairman of the panel Councillor Miller.  She alleged that this “directive” prevented her expanding on her answers, and was responsible for the fact that her interview lasted only twenty minutes while Mr Francis’ interview lasted forty minutes.

(iv)	She alleged that the questions asked at interview advantaged Mr Francis and disadvantaged her because he was able to discuss his work for Derry City Council, whereas she had never worked for this Council.

(v)	She alleged that Mr Francis did not meet the shortlisting criteria as regards qualifications.  She disputed that Mr Francis could have taken the number of history units as part of his degree in Communication Studies which he stated on his application form, and she contended that the respondent should have known that his information was incorrect.

(vi)	She alleged that Mr Francis had not been curator of museums from April 1988 as alleged on his application form.  She stated that he had only held the junior position of curational assistant for that period.

(vii)	She alleged that her professional museum and Ph.D post-graduate qualifications meant that she was a superior candidate for this position, and the failure of the panel to mark qualifications at interview, or to consider the merits of each candidate’s qualifications disadvantaged her and advantaged the successful candidate.  It is accepted that at interview all candidates were regarded as having attained sufficient qualifications for the post, since they had been shortlisted.  The respondent alleged however that they would have expected the candidate with the superior qualifications to have performed better at interview.

(viii)	Finally, she alleged that some matters which she had mentioned as part of her answers were not recorded by some members of the panel.

11.	Having heard the evidence of the applicant and the respondent the tribunal finds the following facts, proved on a balance of probabilities:

(a)	Mr Francis, the successful candidate, had been employed as curational assistant which was a junior management post in 1988.  In or about 1991, as a result of a job evaluation review, the post was re-designated “Curator” within the Heritage and Museum Services Section of the Recreation and Leisure Department.  The review continued to designate the salary grade of the post as junior management.  The effective date of this re-designation was 1 August 1991.

(b)	In accordance with the procedures, Mr Francis appealed the salary grade of the new post.  In October 1997, Mr Francis was informed that his appeal was successful.  The post of curator was regraded as middle management and backdated to 20 October 1992.

(c)	Within the structure of Derry City Council, a middle management post is regarded as senior management since the next level of responsibility is Assistant Chief.  Below Assistant Chief level, all other post holders are middle management, junior management or below management grade.

(d)	By letter dated 17 September 1996, as part of the appeal process, Mr Logue, Director of Recreation and Leisure set out a number of reasons for the regrading of the curator’s post:

“1.	In accordance with existing job descriptions, Dermot Francis manages a number of specific staff.  In addition he manages other staff in specific functional areas.  However, the overall growth of the Heritage and Museums Service, beyond anything that was envisaged at the time of the original review, has necessitated practical readjustments effectively placing him in a position as deputy to the Heritage and Museum Services Organiser with general day to day management of virtually all staff in the service.  It is the latter point which we are seeking to have recognised.

2.	Technically all recommendations to the council go as reports from the Town Clerk and Chief Executive irrespective of where they emanate from.  However, individual officers give professional advice from their particular areas of expertise and attend Council meetings etc to speak on those areas.  This is precisely the case with Mr Francis.  A good example of this was the Atlantic Memorial Commemorations where Mr Francis was the sole representative of the Recreation and Leisure Department to attend relevant meetings and his expertise had a primary influence on the events organised.

3.	Within the Council Structure all officers report through line management ultimately to the Town Clerk and Chief Executive.  However, in each Department of Council particular areas of work are delegated to the relevant officer, who by appointment is qualified and expert in their particular area, to be responsible (in all senses of the word) for the tasks involved.  The latter must accept such responsibility in the case of a problem.  In this sense Mr Francis is responsible for a substantial area of council action ….”

12.	The effective date of the salary regrading is significant in that that was the date the Tower Museum had opened in Derry.  Mr Francis had managed the Tower Museum from the start, and it was regarded as the flagship of the Museum Service in Derry.

13.	Mr Francis played a considerable role in a number of highly acclaimed exhibitions within the Museum Service.  “The Siege” Exhibition was designed to last six weeks, but it was so successful that it remained for three years.  Mr Francis co-wrote the text as well as designing the whole exhibition.  “The Story of Derry” Exhibition successfully and vividly depicted the two communities, and won accolades for its sensitive treatment of divisive issues within the City.  Mr Francis won an award for the “North Atlantic Battle Celebration” Exhibition, which not only had he designed, but he had also been exclusively responsible for the finances of the project.

14.	In terms of budgetary experience, Mr Francis had managed the entire budget for the Tower Museum.  He had also been responsible for the full range of facilities management including the procurement of acquisitions, administration and all day to day managerial issues.

15.	Mr Francis had been acting up to the position of Heritage and Museums Services Organiser (the post which is the subject of the applicant’s complaint) since the resignation of Mr Brian Lacy in April 1998.  In this position he was responsible for a budget of £650,000, as well as all the tasks set out in the job description.  Although a substantial part of the budget automatically covered salaries, there were issues of overtime which had to be decided, and decisions taken about external exhibitions which required additional staff, within the constraints of that aspect of the budget.

16.	In relation to the management of staff, Mr Francis had managed seven staff in the Museum Service and during the Armada Exhibition he had managed fourteen staff. 

17.	Mr Francis had extensive experience of applying for funding from a full range of sources.  In relation to the “Armada” exhibition in particular, the initial application was for £1million and was subsequently increased to £1.45million.  This has now been granted and is the largest grant which has been made to the North West.

18.	Mr Francis had just returned from Barbados at the time of the interview, where he had been invited to speak on the subject “how museums deal with the treatment of divided societies”.  The Tower Museum was viewed internationally as a classic example of success in this area.

19.	Dr Hubbard’s work experience in the museums sector spanned nine years.  In addition she had lectured in communication and general studies for more than four years.  At the Beamish Museum she had worked as an Education Officer for one year.  Her position at the Omagh Folk Park involved looking after both craft and agricultural collections.  She had line management responsibilities for two agricultural staff and four workshop staff.  She also had input into the supervision of two teams of twenty five Folk Park Guides.

20.	In relation to her work at the Causeway Museum Service, her job was to develop a museum service across the Causeway area.  Two of the four local authorities had a museum and the other 2 had collections.  She had been in that post three years at the time of the interview.

21.	Her work experience involved curatorial work, collection management, strategic planning, organising events and making funding applications.  Dr Hubbard accepted that she was not responsible for the day to day management of any of the facilities.  This term relates to the buildings, health and safety, staff visitors etc.  Furthermore she accepted that she had not as such managed any museum at the time of her interviews.  

22.	Dr Hubbard had been responsible for a budget of up to £40,000, and had also been responsible for individual budgets of £10,000 also.

23.	In relation to funding applications she had experience of making an application for £1.3 million, and other funding applications.  She had experience of developing individual exhibitions and exhibition programmes, producing council reports and research.

24.	Her Ph.D research was entitled “Children’s Games in Derry – A Social Anthropological Study”.  In addition, she had obtained the Museum’s Diploma (A.M.A.) via practical examination in Social History.  This is a recognised professional qualification for museum workers, awarded by the Museums Association.

25.	The selection panel consisted of the following persons:

Councillor Tony Hasson – (PRA) Roman Catholic, Sinn Fein
Councillor Mary Bradley –(PRA) Roman Catholic, SDLP
Councillor Joe Miller – 	(PRA) Protestant, DUP
John Keanie – 	(Town Clerk and Chief Executive) (PRA) Protestant
Cathal Logue – 	(Director of Recreation and Leisure) (PRA) Roman Catholic

Aidan Walsh acted as independent assessor to the panel but had no voting rights.  His perceived religious affiliation is Roman Catholic.  In addition Peter Sidebottom was in attendance as Manager of Personnel Services, and at interview stage Reverend Coulter was in attendance as the Local Government Staff Commissioner.  Their perceived religious affiliation is Protestant.

26.	The selection panel was unanimous in its view that Mr Francis was the best candidate for the post after interview.  The Tribunal accepts the respondent’s evidence that Dr Hubbard did not perform as well at interview as her qualifications and experience had led them to expect.  Each member of the panel gave evidence that the applicant’s answers to questions were brief, she did not expand on her answers, and as Councillor Miller (P.R.A Protestant, DUP) recorded in his notes “[she] seemed to want to get the interview over quickly”.  Councillor Bradley (P.R.A. Roman Catholic, SDLP) recorded that she “did not give much information”.  Aidan Walsh, the Independent Assessor recorded in his notes, which were not shared with the voting members of the panel, that she “gave short answers and did not expand”.  Mr Keanie, (P.R.A. Protestant) recorded that she “did not develop answers and did not give the panel a good idea of relevant experience”.  Later he recorded her “answers were far too short” and she “could not be drawn out”.  

27.	The Tribunal does not accept the applicant’s evidence that Councillor Miller (PRA Protestant, DUP) gave her a direction not to duplicate information on her application form when answering questions at interview.  Each member of the selection panel denied that any such thing was said.  The Tribunal accepts that Councillor Miller may have made introductory remarks including a remark that the panel had read the application form but we do not accept that anything was said which could reasonably have been construed as prohibiting the applicant’s answers to questions.

28.	The Tribunal accepts that some of the comments made by the applicant in reply to questions at interview gave rise to concern on the part of the panel as to the applicant’s suitability for the post:

(a)	The applicant indicated her view that “museums should make people angry”.  The Tribunal fully accepts the applicant’s evidence to the Tribunal that she was trying to convey that the purpose of museums was to evoke emotions, whether happiness, fun, sadness or anger.  However, the Tribunal also accepts that in a divided community such as Derry, “anger” was one thing the Museums Service was anxious to avoid.  Indeed Mr Francis told the panel in reply to questions, that he was only too aware of the difficulties in mounting sensitive exhibitions since he himself had had “glorious successes and glorious failures” in this regard.

(b)	In response to question 9:

“How would you balance situations which may at times seem to create a conflict between the views of the council and your professional opinions”,
		
	Mr Logue (Director of Recreation and Leisure Department) indicated that he was concerned at the applicant’s response which was that you “have to stick your neck out”.  Although she also explained that a museum service has to be professional and not drop standards, and that she would tackle the problems by making people aware of the reason for particular things, Mr Logue stated that he was concerned at this remark in the context of Derry.  Mr Walsh, the Independent Assessor also thought her response was confrontational, rather than persuasive and was inappropriate to a community such as Derry.

29.	The Tribunal does not accept that the applicant demonstrated that she had better budgetary or managerial experience for this post in comparison to the successful candidate.  In relation to management, the applicant accepted that she had never managed a museum or any other facility.  Mr Francis, on the other hand had managed the Tower Museum since 1991, was effectively the deputy to the former Museums Services Organiser, and had been acting Organiser for approximately one year.

In relation to budgets, the Tribunal accepts that Mr Francis’ experience was considerably better than that of the applicant.  Although it is correct that a large portion of his £650k budget related to matters such as salaries and overheads, that was also true in relation to her £40k which included her own salary.  The Tribunal is satisfied that as manager of the Tower Museum, and as acting Organiser, Mr Francis’ experience of budgets was broader and more extensive than that of the applicant.

30.	The Tribunal heard extensive evidence concerning each candidate’s responses to questions at interview.  Having done so, we are not satisfied that the questions were biased in any way towards the successful candidate.  The fact that Mr Francis was able to discuss his experience within Derry City Council, would not have prevented any other candidate from relating their knowledge and experience to this post also.  

31.	The applicant complained that the delay in filling this position gave an unfair advantage to Mr Francis who was acting up to the position on a temporary basis.  The Tribunal is satisfied that the reasons for the delay were as follows:

(i)	The post became vacant in April 1998.

(ii)	Mr Logue contacted Aidan Walsh for advice in relation to the job description and personnel specification, which was then forwarded to Personnel in July 1998.

(iii)	The post was not advertised until September 1998, because it is not policy to advertise over the summer period.  Belfast holiday period is July, Derry holiday period is August.  

(iv)	There was difficulty in arranging a time for shortlisting with so many people involved, particularly the Town Clerk and the Director of Recreation and Leisure.  The latter were heavily involved in issues concerning the City of Derry Airport, which was of considerable importance to the City.

32.	The applicant submitted that Mr Francis did not satisfy the shortlisting criteria for the post.  The Tribunal has already set out the criteria at paragraphs (3) and (4) above.  The Tribunal considers that on the evidence of Mr Walsh that “a related discipline would normally be a discipline which deals with collections such as geology or the physical sciences”, a degree in Communication Studies would not appear to satisfy the stated criteria.  However, we are satisfied that there was discussion about this between the panel at shortlisting stage, and that the panel relied on Mr Walsh’s advice that because of the substantial history content stated on Mr Francis’ application form, he was suitable to be shortlisted.

33.	The Tribunal accepts Mr Francis’ evidence that he had studied these units, and that the curriculum produced by the applicant did not represent his course of study.  We accept that at the time of his degree the course was in a transitional period, and was eventually renamed “Media Studies” rather than communication studies, the year after the applicant commenced his degree.  

34.	It was put to the applicant that after she had left the interview room, she asked Mr Sidebottom if she could go back in, because she had not shown the panel some information which she had brought to the interview.  Mr Sidebottom said he had told her she could not do so.  The applicant agreed that she may have had a pamphlet in her hand and that it was likely that she had offered to leave it.  She denied that she had asked to go back into the interview.  Both Mr Logue and Mrs Bradley were asked to recall what Mr Sidebottom had told them about the incident at the time.  The accounts that they gave were inconsistent, and the Tribunal accepts the applicant’s account. 

35.	The Tribunal had a number of concerns regarding the procedures which were adopted in this selection process.  They are as follows:

(i)	Four of the panel did not complete the documentation provided to record the candidates’ performance adequately and in some cases at all.  Councillor Hassan did not record any comments at all in relation to the candidates and recorded very little of the responses to questions.  Councillor Miller did not record any information concerning the candidates responses.  Councillor Bradley did not complete any information concerning the candidates’ responses either.  Mr Logue merely ticked the comment box but recorded no information to indicate what his comments were. 

(ii)	No record was kept of the advice expressed to the panel by the independent assessor concerning the suitability or otherwise of each candidate.  We consider that where the advice of an independent adviser is relied on by a panel, that advice should be recorded, to ensure that the process is transparent and subsequent complaints about the implementation of the selection procedures can be dealt with.

(iii)	No discussions took place, and no advice was given concerning the weight to be attached to the various selection criteria.  Each panel applied whatever weight they considered appropriate.  This is contrary to para 5.3.7 of the Code of Practice.

(iv)	Some of the selection panel had not received training on equal opportunities or sound selection procedure, contrary to para 5.3.7 of the Code of Practice.  

Mr Miller had not received any formal training, and had had only a chat with the personnel manager, Mr Sidebottom prior to the interviews.

Mr Hassan had no formal training, and this was the first recruitment panel on which he had sat.  He had received “some line on the general way of conducting interviews”, but he could not remember much about it.

Mrs Bradley gave evidence that she did have training from her experience with Education and Library Boards.  However, when asked why she had not fully completed the documentation she said that she had followed her normal practice.  

(v)	Qualifications were not considered at the interview stage.  All candidates were deemed to have sufficient qualifications since they had been shortlisted.  Although Mr Logue suggested that the better qualified candidate would have been expected to perform better at interview, we consider that it would have been better to assess a candidate’s qualifications as a separate criterion.

(vi)	We are particularly concerned that the Local Government Staff Commissioner indicated that the procedures adopted in this case were satisfactory, when there were clearly a number of breaches of the recommendations contained in the Fair Employment Code of Practice.

36.	However, although there were procedural weaknesses, we are not satisfied the applicant was unlawfully discriminated against on grounds of sex, race or religion/politics.  Our reasons for this decision are as follows:-

(a)	The fact that the Mr Francis had been acting up to the post in question at the time of the interviews meant that he had an advantage over all the candidates irrespective of sex, race, religion or politics.  Mr Francis was the only internal candidate and the Tribunal is satisfied that in the absence of Mr Lacy, Mr Francis was the obvious choice to act up to that position, since he was Mr Lacy’s deputy.  The Tribunal is also satisfied that there were genuine grounds for the delay in completing this selection process.  In our view, since male Irish Catholic candidates were equally disadvantaged by the fact that Mr Francis had one year’s experience of doing the actual job, the applicant cannot rely on this as an indicator of less favourable treatment on grounds of her being a female English Protestant.    

(b)	If Derry City Council had pre-determined that Mr Francis should be the successful candidate, one would have expected the selection criteria to have indicated that a degree in Communication Studies would be acceptable.  The fact that there was a query over his qualifications at shortlisting stage, indicates that it was not certain that Mr Francis would be appointed.

(c)	The applicant’s interview lasted only 20 minutes as opposed to Mr Francis’ interview which lasted 40 minutes.  The interview schedule allocated 45 minutes between each candidate’s interview, and the Tribunal accepts that no candidate had their answers cut short.  The Tribunal is satisfied that Mr Francis demonstrated at interview that he was better suited for the post by the depth and detail of his answers.  In short, the applicant did not do herself justice at interview.  The fact that she alleged that she had been “directed” not to duplicate information which was already on her form suggests that she was aware she had performed poorly at interview and was seeking to attribute blame for that fact.

(d)	The Tribunal is also satisfied that although the applicant has better academic qualifications, she did not have better experience for the post than Mr Francis.  We accept that this was primarily a strategic, management and leadership post, rather than an academic post.  We consider that even if the panel had considered qualifications as a separate criterion at interview, this would not have made any difference to the result.  

(e)	The Tribunal also takes account of the fact that the panel comprised councillors from the Democratic Unionist Party, Sinn Fein and the S.D.L.P and that the panel’s decision was unanimous.

(f)	The Tribunal does not accept that the fact that not everything the applicant said at interview was recorded by each member of the panel is an indictor of discrimination.  The Tribunal accepts that in so far as notes were made, each member recorded the information that he or she considered relevant to the post.  What is clear from the notes is that there was a common view that the applicant’s replies were too short, and that her management and budgetary experience was considered weak.

37.	The Tribunal therefore dismisses the applicant’s complaint.

____________________________________

Date and place of hearing:  9-13 December 2002 and 26-28 March 2003, Belfast

Date decision recorded in register and issued to parties: