FAIR EMPLOYMENT TRIBUNAL

CASE REF NOS:	47/00FET
463/00FET
269/01FET

APPLICANT:	William R (Wilbert) Leacock

RESPONDENT:	Department of Agriculture and Rural Development

DECISION
The unanimous decision of the Tribunal is to dismiss each of the complaints.  The applicant is ordered to pay the sum of £150 in costs to the respondent.

APPEARANCES:

APPLICANT:	Mr T McGleenan, Barrister-at-Law, instructed by the Equality Commission.

RESPONDENT:	Mr F O’Reilly, Barrister-at-Law, instructed by the Departmental Solicitor.

1.	In 1995 the applicant made a complaint under the Fair Employment (NI) Act 1976 against the respondent which was determined in 1997.  Subsequently he made three complaints of discrimination by way of victimisation.  The first complaint (47/00FET) was made on 25 January 2000 and alleged that the respondent victimised the applicant on various dates culminating in their failure to appoint him to a permanent post of district foreman in Coleraine in or about November 1999.  The second complaint (463/00FET) was made on 24 October 2000 and alleged discriminatory treatment in the allocation of temporary ‘acting up’ district foremen’s posts and harassment by the Area Engineer.  The third complaint (269/01FET) was presented on 21 May 2001 and alleged victimisation in the award of a further district foreman’s post in or about February 2001.  All applications were consolidated on 13 August 2001 to be heard and considered together.

2.	At the conclusion of the applicant’s evidence in all applications, the chairman queried with the applicant’s representative whether there was any evidence whatsoever in support of complaint 269/01FET.  After recess and consideration, complaint 269/01FET was withdrawn and it was dismissed.  The respondent applied for costs and we shall deal with that application in due course.

Complaint 47/00FET

3.	The applicant applied for the post of TG1 District Foreman in Coleraine and in Enniskillen in late 1998.  The interviews for the posts were held together but the applicant was not successful.  He was informed of this fact by letter dated 22 December 1998.  This letter stated -

	“Thank you for attending the recent interview for the above post.

As the number of vacancies is limited I regret to inform you that, although you were found suitable at interview you were not, unfortunately, placed sufficiently high in the selection panel’s order of merit to be considered for an immediate appointment.

However, subject to the satisfactory outcome of the various pre-appointment enquiries, we would propose to hold you as a reserve for SB/74/98 - TG1 District Foreman - Coleraine, in the event of any of those candidates who are offered an appointment not accepting it or if further vacancies arise in the next 12 months.

In the meantime, therefore, I would ask you to respond to any requests for information as speedily as possible and if you change your address or find that you would be unable to take a post if offered, perhaps you would contact me without delay.  I must point out that if you have not been offered a post by the time we next advertise for a vacancy of this nature, it will be necessary for you to reapply.”

4.	A further letter dated 8 January 1999 was sent to the applicant.  In this letter it was stated that the applicant had failed in his applications for both the Enniskillen and Coleraine posts but that in relation to the Coleraine post, he was a reserve in the event of any of those candidates who are offered an appointment not accepting it or if further vacancies arose in the next 12 months or so.  But it was explained that since there was only one candidate for the post in Coleraine placed above the applicant, he was next in line for the post and therefore considered as a reserve should a further post arise.  But since there was more than one candidate placed ahead of the applicant for the Enniskillen post, the applicant was considered as having passed interview but no immediate posts were available.  If further vacancies arose for this post, he could be considered without reapplication.

5.	The Coleraine area comprises three distinct districts each district having a separate district foreman.  The applicant had applied for a district foreman’s post in the Coleraine area but the district was Coleraine area, Lower Bann Valley and North Antrim.  SH was the successful candidate for this district foreman’s post and he accepted the offer made to him.  No further vacancy occurred in this district.

6.	The Coleraine area also comprised a district known as West Londonderry and at the time of the appointment of SH to his post after the competition the district foreman in West Londonderry was JG.  JG vacated his post on promotion in or about November 1999 and there was no dispute that this was within 12 months of the reserve offer made to the applicant.  The post held by JG was not offered to the applicant but advertised.  The applicant did nothing prior to the advertisement of the post and he did not apply for it.

7.	The applicant alleged that the respondent punished him by not appointing him to the vacancy in West Londonderry and that they did so because he brought a complaint against the respondent in 1995 and, by implication, that they would not have so treated a person in similar circumstances who had not brought such a complaint.  The respondent, before this Tribunal, argued that the respondent’s policy was that a ‘reserve’ candidate after a recruitment exercise was entitled to appointment only to a post in the same area and district as the post originally advertised.  The applicant, they alleged, was treated no differently from anyone else.

8.	The evidence from both parties on this matter - this vital matter - was less than satisfactory.  The applicant applied for a post in a specific district in a specific area.  He was told he was a reserve for the post applied for if the successful candidate did not accept it or if further vacancies arose in the next 12 months.  There was only one post in the district and it might be thought that talk of further vacancies - other than the successful candidate declining the post - was somewhat fanciful if reserve status was restricted to this one post.  Whatever doubt existed, it is difficult to disagree with the applicant’s interpretation when he is told after inquiry that if not offered a post by the time the respondent advertises ‘for a vacancy of this nature’ - [not for ‘this post’] he needs to reapply.  It is a possibility but in our opinion, on this wording alone, it is very curiously expressed.  But it was the evidence of the respondent that practice and procedure did not allow the respondent to fill a post which had not been advertised by the appointment of a reserve candidate from another competition.

9.	The respondent was asked in a written questionnaire on 22 January 2000 why he was not offered the post vacated by JG in November 1999.  Their response was -

	“The post for which you applied in December 1998 was in the Coleraine area but the vacancy which arose in November 1999 was in the Londonderry area so would not be filled from the recruitment competition for the Coleraine area.”

	The evidence given supported this response but the nature of that evidence was -

	(a)	from the recently appointed Head of Recruitment Services who had no personal knowledge of these matters.

	(b)	from an area engineer and took the form of his inability to recall a single case where a vacancy in an unadvertised post was filled by a reserve candidate from another competition.

	Neither testimony is strong evidence of the intention of those who made the applicant a reserve candidate, the intention of the letter writer who conveyed this message or of the practice and procedure in the Rivers Agency at this time.  The Head of Recruitment Service testified that the letters issued to the applicant were unfortunate pro forma type letters which were currently being revamped.  We have some difficulty in accepting that the letter written on 8 January 1999 was a ‘pro forma’ type letter for it was written in response to a direct inquiry from the applicant and it too mentions further vacancies arising in the next 12 months.

10.	But whatever those letters suggest to an objective observer, we need to be satisfied as to the practice/procedure in the Rivers Agency at the relevant time.  If the practice/ procedure was as claimed by the respondent, there was no less favourable treatment of the applicant when he was not appointed to the vacancy caused by JG leaving his post.  And in considering that matter the evidence given by the respondent is strengthened by the evidence of the applicant himself in two respects, namely -

	(1)	he did nothing about claiming this post despite the post being vacant from November 1999 until he made contact in January 2000 by way of questionnaire.

	(2)	he adduced no evidence of any reserve candidate appointed to a post other than the post applied for.

11.	The respondent’s claim is supported also by a common-sense approach to the question of reserve candidates.  If seems to us that there is no logical reason to differentiate between posts within districts in one area and posts in all areas where the advertisement specifies the particular district within the area.  If a reserve candidate for a post in district A can be appointed to district B or C posts within that area, why could he not be appointed to adjacent districts outside that area or indeed anywhere in Northern Ireland?  In this case, the applicant applied for two posts - one in Enniskillen and one in Coleraine.  He was not reserve in Enniskillen but was reserve in Coleraine.  If a vacancy arose in a district in Enniskillen in a post which had not been advertised, which reserve candidate had the entitlement?

12.	We therefore conclude that it is more likely than not that the respondent’s claim is true - reserve candidates within the Rivers Agency had an entitlement only if a vacancy occurred within 12 months in the post for which they had applied.  There is no evidence that anyone appointed as a reserve in any competition was appointed to a post other than that for which he was reserve.  Accordingly the applicant has failed to show that he was treated less favourably than anyone else and his complaint 47/00FET must be dismissed.

Complaint 463/00FET

13.	In this complaint the applicant made two allegations -

	(i)	his area engineer treated him in August 2000 in a hostile, abusive and intimidatory manner, and

	(ii)	he was treated less favourably in the awarding of ‘acting-up’ status to District Foreman.

14.	In relation to the first aspect of this complaint, the applicant wrote to his area engineer, SO’N, on 1 August 2000.  A copy of this letter is attached and marked ‘A’.  As a consequence there was a meeting in the area engineer’s office on 3 August 2000.  At this meeting, the area engineer admits to losing his temper and shouting allegedly because of the contents of the letter of 1 August and its implications for him.  Prior to this meeting the relationship between the area engineer and the applicant had been good - apart from one minor incident in which SO’N had wrongly criticised the applicant and for which he apologised.  SO’N had no involvement in the applicant’s complaint in 1995 - he did not take up post until August 1996.

15.	Having heard SO’N, we have no doubt that he reacted strongly to the contents of the applicant’s letter of 1 August 2000.  Such conduct may or may not be discrimination by way of victimisation but at the very least the applicant needs to show less favourable treatment or other prima facie evidence of discrimination.  He has not done so in a context where the Tribunal were impressed by the evidence of SO'N.

16.	Finally the applicant complained about the extent to which he was afforded the opportunity to ‘act up’ as district foreman and in particular in comparison with the extent to which JL had ‘acted up’.  The person responsible for designating supervisors to ‘act up’ was the area engineer, SO’N.  SO’N had no involvement in the complaint brought by the applicant in 1995 and, apart from one instance where SO’N had criticised the applicant (wrongly) for being late, the relationship between the applicant and SO’N was an amicable one.  The applicant and the area foreman had a difficult relationship and SO’N had made a number of efforts to resolve those differences.  SO’N had given an assessment of the applicant’s performance on 4 December 1998 in which he assessed the applicant as outstanding under five out of six criteria and as good (the category immediately after outstanding) on the sixth criteria.  He assessed him as outstanding in drive, determination, effectiveness in working relationships, for conduct and reliability, for leadership qualities and management ability and for overall performance and effectiveness.

17.	The essence of the applicant’s complaint in this regard was that JC had been asked to act up for period of 6 and 9 months and he had not been afforded such periods.  The records showed the following periods of acting up from 30 March 1998 in Omagh -

DMcG	2 weeks	30/3/98	-	10/4/98	
Applicant	2 weeks	16/4/98	-	29/4/98	
JC	2 weeks	30/4/98	-	13/5/98	
DMcG	4 weeks	15/5/98	-	11/6/98	
Applicant	7 weeks	11/6/98	-	30/7/98	
JC	4 weeks	30/7/98	-	27/8/98	
DMcG	9 weeks	27/8/98	-	29/10/98	
Applicant	9 weeks	29/10/98	-	31/12/98	
JC	26 weeks	4/1/99	-	5/7/99	

	[Acting up in this period was required by the absence through illness of SM who was absent from 30 March 1998 until medically retired on 21 May 1999.  The applicant allegedly was scheduled to begin 26 weeks acting up from 5 July 1999 until 10 January 2000 but DMcG was promoted to District Foreman in Fermanagh on 19 April 1999 and took up post in Omagh on 28 June 1999.  The varying lengths of acting up periods allegedly reflected the duration of medical certificates from SM and the increasingly poor prognosis.]

JC	2 months - review	15/11/99	-	14/1/00	
JC	Reviewed - extension 3 months	17/1/00	-	17/4/00	
JC	Reviewed - 3 months	17/4/00	-	21/7/00	
MMcA	Reviewed	24/7/00	-	13/8/00	
JC	Reviewed	14/8/00	-	6/9/00	
JC	Reviewed	9/9/00	-	31/11/00	

	[Acting-up in this period was required because two district foremen were seconded to technical grades.  JC accepted the Omagh post.  Supervisors WL (applicant) and RH declined to act.  Post in Moneymore filled by temporary transfer of district foreman from Fermanagh.  In July 2000 WL (applicant) agreed to act up.  Complaint made on 24 October 2000.]

18.	On the evidence placed before us, the applicant’s complaint is that JC was treated more favourably than he was treated in being afforded 2 periods of acting-up of more than 6 months while the applicant in 1999 and in 2000 was offered only periods of one or two months reviewable.  In relation to 1999, SO’N testified that it was proposed to offer 26 weeks to JC from 4/1/99 and 26 weeks to the applicant from 5/7/99.  JC completed his period but, in response to his request, DMcG, who had been promoted District Foreman in Fermanagh, was transferred to Omagh on 28/6/99.  The undisputed evidence was that DMcG’s wife was ill with a degenerative complaint.  We cannot accept that JC was treated more favourably than the applicant because the applicant was not able to undertake the acting-up scheduled earlier for him.

19.	The other period in which JC acted up was from 15/11/99 to 14/1/00, from 17/1/00 to 17/4/00 and from 17/4/00 to 21/7/00.  The latter two periods were by way of extension to the first.  The applicant, in July 1999, refused an offer to act up for 2 months because JC had just come off a six month period - see paragraph above.  However JC, in November 1999, accepted a two month engagement which led to two extensions.  And in July 2000, the applicant was offered an acting-up appointment of up to six months though on a monthly review basis.  Again it is difficult to see less favourable treatment.  We were impressed by the way in which SO’N gave his evidence and his factual assertions in relation to the acting-up rotas and durations were largely uncontradicted.  For all of these reasons we find that the applicant has failed to prove that he was discriminated against by SO’N and complaint 463/00FET must be dismissed.

20.	The applicant withdrew complaint 269/01FET as the conclusion of his evidence when it was clear that there was simply no evidence whatever to support it.  His case was that he was victimised in a competition because, when he previously applied for the post, he was runner-up in circumstances where more and different people applied for the later appointment.  This Tribunal knows the extent to which respondents are expected to go in preparing to defend a complaint of discrimination in a recruitment process and it simply should not happen that a complaint endures to the close of an applicant’s case before it is recognised that there is no evidence to support it.  Clearly there are 

	substantial costs involved in preparing to meet such a claim - and indeed substantial distress and inconvenience to those accused of such discrimination.  The respondent has left the matter of costs entirely to the Tribunal.  We believe a sum of £150 should be paid by the applicant to the respondent.

____________________________________
J E MAGUIRE
President

Date and place of hearing:	6-8 January 2003, Belfast

Date decision recorded in register and issued to parties: