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Fair Employment Tribunal Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Moore v NIR Company Limited [2004] NIFET 143_00 (19 March 2004) URL: http://www.bailii.org/nie/cases/NIFET/2004/143_00.html Cite as: [2004] NIFET 143_, [2004] NIFET 143_00 |
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CASE REF: 143/00 FET
APPLICANT: Glen Scott Moore
RESPONDENT: NIR Company Limited
The unanimous decision of the Tribunal is that the applicant was not unlawfully discriminated against by the respondent on the grounds of his religious belief and/or political opinion. The originating application is therefore dismissed.
Appearances:
The applicant was represented by Mr M Wolfe, Barrister at Law, instructed by Francis Hanna & Company, Solicitors.
The respondent was represented by Mr P Ferrity, Barrister at Law, instructed by MacAuley & Ritchie, Solicitors.
the applicant;
Brian Murphy; a fellow employee of the respondent and another candidate for the said post; who, after interview, was the reserve candidate to Mr Ferguson;
Hilton Parr, then Station Manager of the respondent and member of the interview panel for the post;
Brendan Shannon, the Parcel Manager of the respondent and who was also a member of the interview panel for the post;
Donald Connolly, the Training & Development Manager of the respondent.
3.1 The applicant, was employed with the respondent from in or about December 1991. He was employed in a variety of jobs with the respondent, culminating in his appointment as a Supervisor in Bangor Station in September 1995 and subsequently at Great Victoria Street Station, Belfast; and from in or about 1997 as a Relief Station Supervisor in Belfast. The applicant's duty of Supervisor at Bangor/Great Victoria Street Station was very similar to those of Relief Station Supervisor in Belfast – though in the former the applicant was static and in the latter he was required to cover different locations within the Belfast area. The applicant had a good work record and had never been the subject of an adverse complaint with regard to his performance nor had he ever been the subject of any disciplinary proceedings.
3.2 Mr Parr was the same religion as that of the applicant. He was to be the Line Manager for the person appointed to the said post. In November 1999, Mr Parr was the Station Manager based at Central Station and was responsible, inter alia, for the respondent's stations in the Greater Belfast area and, in particular, the station staff at those stations, who would have included the applicant as a Relief Station Supervisor in Belfast.
3.3 On 19 November 1999, the respondent invited applications in an internal advertisement for the position of Station Supervisor in Central Station. Whereas the post of Relief Station Supervisor was a Grade C post, the post of Station Supervisor was a Grade D post with a higher salary and more attractive shift work pattern. It was also considered to be a more prestigious post than that of Relief Station Supervisor. The advertisement set out the nature of the post, namely – "to supervise and ensure the provision of service provided to passengers at stations and meet the stipulated requirements". The applicant considered he was already doing the foregoing as a Relief Station Supervisor. In addition, the advertisement set out the various requirements for the post including the essential and desirable criteria for the said post. There was no 'welcoming statement' attached to the advertisement. Such a statement would not have been normal practice in relation to such an internal advertisement.
the applicant;
Brian Murphy;
the successful candidate, John Ferguson;
William Thompson; and
Bernard McCutcheon.
All the candidates for the post applied by sending to the respondent a completed application form.
3.5 When the vacancy for the post had arisen, Mr Parr, as the relevant Line Manager for the position, completed the relevant requisition form requesting the post to be filled; and which was subsequently approved, at a higher level of management. In connection with the foregoing, Mr Parr prepared a job description and Personnel specification, from which the essential and desirable criteria used in the internal advertisement were drawn up and which were subsequently used in the short listing process.
For the said short listing process, the essential criteria were:-
(i) normal/colour vision;
(ii) recognised supervisory qualification and/or formal qualifications in operational procedures;
(iii) sound knowledge of customer care practice;
(iv) knowledge of Passenger Charter;
(v) available to work overtime, if necessary.
For the said short listing process, the desirable criteria were:-
(i) two years' previous supervisory experience;
(ii) knowledge of Health & Safety at Work;
(iii) knowledge of basic disciplinary and grievance procedures.
3.6 During the course of the evidence before the Tribunal, it was unclear on the part of the respondent's witnesses, what were the relevant recruitment procedures of the respondent, which were in operation at the time of this recruitment exercise. This was somewhat understandable, given the passage of time involved and the various amendments/changes to the respondent's procedures in the intervening years. The Tribunal concluded that the relevant procedures were contained in the document headed 'Recruitment & Selection Procedure'. Under the short listing procedures, contained therein, the Human Resources Department ('HR Department') was required to provide professional advice and support during the short listing process and, in particular, the said procedures provided that the Recruitment Officer, who would be part of the HR Department, would, where practicable, seek to ensure that short listing was carried out on a cross-community mixed gender basis by members of staff who had been trained in recruitment techniques. The Tribunal was concerned that the short listing was carried out by Mr Parr alone and not with Mr Shannon, the other member of the interview panel – despite the terms of the said procedures. Indeed, the Tribunal was led to believe that short listing for a post such as this then, and even now, would invariably be carried out by one person, who would usually be the relevant Line Manager for the new post, and who would also be a member of the interview panel. The Tribunal found no reason why it was not practicable to follow the procedure as set out above. Indeed, the failure to do so seemed to be for mere administrative convenience. Whilst, for the reasons set out elsewhere in this decision, the result of the short listing process was not directly an issue in these proceedings this was a further example, where the Tribunal noted there was no challenge or query by the HR Department, who had overall responsibility for this recruitment exercise.
3.7 Mr Parr, in connection with the short listing process carried out by him completed a short listing summary form, in which the aforesaid essential and desirable criteria were set out. It appears from the said summary, Mr Parr short listed all five candidates, on the basis that each satisfied, after consideration of the completed application forms and any documents attached thereto, the said essential criteria. This was never in dispute during the course of the hearing. However, in relation to the desirable criteria, albeit not required to be satisfied in order to allow the candidate to be short listed, Mr Parr marked the summary sheet in a manner which indicated that he was not satisfied that Mr Thompson, Mr Ferguson or Mr Murphy satisfied the desirable criteria of "two years' previous supervisory experience". The subject of whether these candidates, in particular Mr Ferguson and/or Mr Murphy, had such supervisory experience will be considered in more detail elsewhere in this decision. Mr Parr could give no explanation to the Tribunal why he had indicated on the short listing summary form that neither Mr Ferguson, the successful candidate, and Mr Murphy, the reserve candidate, did not have such experience; when at all times during the course of the hearing he contended that both had such experience for the requisite length of time, in regard to what was set out in their application forms. He further made clear, in his evidence, that at no time during the course of the interviews, did either he or Mr Shannon ever consider that Mr Ferguson and/or Mr Murphy did not satisfy the said desirable criteria of "two years' supervisory experience".
3.8 On completion, on 14 December 1999, of the short listing summary form, in which he had concluded that all five candidates should be interviewed for the post, Mr Parr sent the completed form to the HR Department. There was no HR Department involvement with the actual short listing carried out by Mr Parr. It would further appear from the form that the relevant Recruitment Officer in the HR Department, having received it from Mr Parr, signed it off also on the same date. It was clearly the function of the officer in the HR Department, having regard to the respondent's procedures, to carefully check that the short listing exercise had been carried out correctly and to ensure that the persons to be interviewed satisfied the relevant criteria and that no errors/mistakes had taken place. As stated above, there was no dispute that the five candidates satisfied the essential criteria for the post and therefore were entitled to be invited to be interviewed for the post. Mr Parr acknowledged, in evidence, that he should have indicated on the form that Mr Ferguson and Mr Murphy satisfied the desirable criteria relating to "two years' previous supervisory experience". He could not explain to the Tribunal why he did not. If Mr Parr is correct, which shall be referred to elsewhere in this decision, it has to raise some concern with regard to the way in which the HR Department of the respondent oversaw the whole of this recruitment exercise. As shall be seen later, the HR Department were not in attendance at the interviews and only saw the paperwork relating to the interview process, after the decision was taken by the interview panel. It seems at no time was the difference between what Mr Parr had stated on the short listing form and the interviewers' acceptance at the interview, that both Mr Ferguson and Mr Murphy satisfied the said desirable criteria of two years' previous supervisory experience ever considered by the HR Department or raised with Mr Parr or Mr Shannon. Further, it did not appear that prior to the interview, Mr Shannon was given or shown the summary short listing form prepared by Mr Parr. Again, since he took no part in the short listing it became, in the Tribunal's view, all the more important that he was shown a copy of it and what had been written by Mr Parr, his fellow interviewer, before he was asked to interview the candidates. Nobody from the HR Department involved in this particular recruitment exercise was called to give evidence. The Tribunal was forced to conclude, in the circumstances, that the manner in which the HR Department oversaw this short listing exercise was at best perfunctory and did not involve a careful and proper checking of the paperwork. Mr Connolly, the Training & Development Manager of the respondent suggested in evidence that, given that the desirable criteria were not relevant to who was short listed, what had been stated by Mr Parr in the form might not have been as carefully scrutinised as those entries relating to the essential criteria by the relevant officer of the HR Department. In the tribunal's view, this is a matter which requires to be carefully looked at by the HR Department to ensure any such lack of scrutiny does not occur in any future recruitment exercise. The short listing summary form is an important document in the recruitment process and should not, in the Tribunal's view be, in essence, forgotten about whenever the interview stage of the process is commenced, albeit the candidates selected for interview have been correctly short listed.
3.9 The interviews were held on 22 December 1999. No one from the HR Department attended. One of the short listed candidates, William Thompson, withdrew and did not attend for interview. Prior to the holding of the interviews, Mr Parr, as the Line Manager for the post, arranged the attendance of the other member of the panel, Mr Shannon. In arranging the membership of the panel, Mr Parr did this alone and without any direct involvement and/or assistance from the HR Department. Mr Parr was aware from recruitment/selection training he had attended in about 1997 with Mr Connolly that it was good practice that the other member of the panel should be of a different religious persuasion to himself.
3.10 Mr Parr had worked with Mr Shannon, in his capacity as Parcels Manager of the respondent, which was also based at Central Station. Mr Shannon was at the same level of management as Mr Parr. Mr Parr knew that from his position as Parcels Manager, Mr Shannon, would have a good understanding of the day-to-day running of Central Station and railway operations generally and, in his opinion, he concluded he would therefore be an appropriate person to join him on the interview panel for this particular position of Station Supervisor at Central Station. Mr Parr believed that Mr Shannon was a Roman Catholic. He was aware from conversations he had had with him that Mr Shannon went to Donegal most weekends after work, where his family had some property and he attended Chapel there on a Saturday night. However, before asking Mr Shannon to sit on the interview panel he asked Mr Shannon to confirm that he was a Roman Catholic and Mr Shannon did so. Mr Parr informed the Tribunal that the practice still continued that the HR Department did not chose the membership of such an interview panel; and ensuring, where relevant, the religious/sexual balance of the panel was still left to the relevant manager to the post, who would normally always be a member and chairman of the panel. He explained that the practice had grown up that managers would agree to sit on each other's panels, as a favour. The Tribunal's view is that it is an invidious and unsatisfactory system to require a manager, such as Mr Parr, to ask a fellow manager his religion in such circumstances. Further, such a system where the manager is permitted to chose his fellow member(s) of the interview panel, with no input from the HR Department, could clearly lead to potential abuses and allegations of "fixing of the membership of the panel". In this case, the Tribunal were satisfied that Mr Parr acted fairly and properly in choosing Mr Shannon. However, with the HR Department having no input at the time of choice and not attending the interview, it had no input into or knowledge of how Mr Parr had chosen Mr Shannon and the basis on which he done so. This cannot, in the Tribunal's view, be good practice and it believes that the HR Department should have had, at all times, a much closer involvement throughout the course of this recruitment process, and in particular should take on the responsibility of selecting the members of the interview panel and not leave it to the line manager/chairman of the panel. Mr Connolly suggested, in his evidence, that given the numbers of recruitment exercises engaged in by the respondent it was not then, nor now, practical to have such close involvement by the HR Department throughout the recruitment process. The Tribunal could not accept this, given the size of the respondent and, in particular, given the absence of any direct involvement by the HR Department during the course of this short listing/interview process. In the Tribunal's view, the checking of paperwork, as it may or may not exist, after the conclusion of the process cannot be a proper substitute for the lack of direct involvement during the course of the process.
3.11 At some date prior to the interview, and probably even prior to the actual short listing exercise, Mr Parr prepared on his computer a draft document setting out the introduction to be given to each candidate and the format for the interview. It stated, inter alia, the interview 'would commence with a formal ten minute presentation based on your achievements as a Station Supervisor six months into the post, followed by questions relating to the contents of your presentation'.
There was no dispute that each candidate was aware, before he attended the interview, that he would have to make a presentation on the above subject.
The draft document then set out six categories:-
(i) physical make-up and appearance
(ii) attainments
(iii) general intelligence
(iv) special aptitudes
(v) disposition
(vi) circumstances
Each category was then sub-divided under the headings:-
Specification
Criteria
with bullet points set against both; and a mark frame set against each said bullet point under Specification. Further, a question was set out for each category, other than the category of physical make-up and appearance. The maximum score, which related to the individual marks set against the various bullet points, was then set out under each category. It will be necessary to consider this document in more detail elsewhere in this decision. However, at this stage, it is sufficient to note that the document was prepared by Mr Parr on his own, without any input or involvement of the HR Department. Indeed, the HR Department would not have seen this document until the paperwork was handed back to the HR Department, at the conclusion of this recruitment process. When drafting this document, it would appear that Mr Parr did not have a copy of, nor did he take into account the format of the respondent's standard interview assessment. This was subsequently issued to the interview panel by the HR Department shortly before the interviews took place, for use by the panel in the assessment of the candidates at the actual interview. Again, it will be necessary to consider this document in more detail elsewhere in this decision. The fact that this document, prepared by Mr Parr, was not seen by the HR Department until after the conclusion of the recruitment process was, in the Tribunal's view, a further illustration of the dangers of no involvement by HR Department during the course of the process. Indeed, the Tribunal believes that many of the issues that have arisen in this case might have been avoided if that involvement had been present at the time of the interview or earlier.
3.12 Prior to the interview date, and after he had agreed to be a member of the panel, Mr Shannon met Mr Parr in his office. At this meeting he was shown a copy of the draft document, referred to above, which Mr Parr had prepared on his computer. Again, no one was present from the HR Department at this meeting and there was no minute kept of what was discussed and/or decided. Both Mr Parr and Mr Shannon were uncertain in their evidence as to what had taken place at the meeting, save that Mr Shannon had approved the draft document prepared by Mr Parr for use at the interview. Mr Shannon's memory was that any discussion about the contents of the document was at the time of the interviews; whereas Mr Parr's memory was that the discussion about the contents of the document took place at either this meeting, or if not this meeting, the meeting which took place immediately prior to the start of the interviews, to which reference shall be made later. The Tribunal concluded that there was little or no discussion at this meeting held in Mr Parr's office; and that Mr Shannon, after reading the document, merely confirmed his agreement to the terms of the document. No alteration was made to the document. In particular, the Tribunal does not believe that there was any discussion between them at this meeting about the mark frame for the various categories set out therein. Mr Shannon having noted that the questions drafted by Mr Parr were of a similar nature to questions he might have expected to see for this type of post, in light of his experience of sitting on a number of interview panels, was, in the tribunal's opinion, quite content to leave it to Mr Parr, as the relevant Line Manager, with detailed knowledge of the post, to draft the specific questions and the mark frame. He did not therefore seek, at that time, to make any amendments or alterations to the same or raise any particular questions with regard to same. It the opinion of the tribunal if a note or memorandum had been made of what did take place at this meeting many of the difficulties that later arose might not have occurred.
3.13 Immediately prior to the interviews on 22 December 1999, Mr Shannon and Mr Parr held a meeting. Shortly before the date of the interviews, Mr Shannon and Mr Parr were provided by the HR Department with the interview pack, which included the standard interview assessment record form to be used to assess each candidate. No member of the HR Department attended this meeting and again no record was kept of the meeting. Under relevant procedures, the interview pack provided by the HR Department included, not only the interview assessment record but also, inter alia, copy of the application forms of each candidate, the personnel specification, job description and the advertisement. The interview assessment record is a standard 'proforma' document issued by the HR Department for use in all interviews conducted by the respondent. It sets out various description/criteria for use in relation to assessing a candidate. As it is a 'proforma', it indicates that relevant sections in respect of the said description/criteria referred to therein should only be completed, which are appropriate to the post. It further sets out a scoring system and gives a guide as to how it should be used. There were a number of differences between the various categories used in the document prepared by Mr Parr (and as stated previously approved by Mr Shannon) and the description/criteria set out in the proforma.
The proforma referred to:-
(i) physical make-up;
(ii) job experience;
(iii) educational attainment;
(iv) general intelligence;
(v) special aptitudes;
(vi) personal qualities;
(vii) circumstances
In essence, there can be found some general correlation between the two documents, albeit there are some differences in the language used/terminology, eg job experience/attainments; personal qualities/disposition. However, a material difference, for the purposes of these proceedings, was that in the document prepared by Mr Parr it had no separate category under the heading "educational attainment" which, as seen above, is to be found in the interview assessment record form.
Further, the interview assessment record form sets out a scoring system – which scores from one to ten, it gives a guide as to how each section might be scored with reference to a score which could be classed as "significantly below average" up to "significantly above average". This document has no provision for giving a mark in excess of ten and further gives no separate marks for specific matters contained within any description/criteria. In contrast the document prepared by Mr Parr, as set out above, provided a specific mark frame in relation to each category; but also provided for the giving of 13 marks in relation to "special aptitudes".
3.14 In the course of his opening to the Tribunal, Mr Wolfe made it clear to the Tribunal that central to the applicant's complaint that he had been treated less favourably on the grounds of his religious belief and/or political opinion, in failing to be appointed to the said post was his belief that the successful candidate did not deserve to be appointed to the post; he was not as well qualified and experienced as the applicant and had been so appointed because of the desire of the respondent to redress a religious imbalance in his workforce and, in particular, in relation to the number of Roman Catholics in comparison to Protestants holding supervisory positions at Central Station. Mr Ferrity submitted that there was no such imbalance and, if even if there was, this was not the reason for the appointment of Mr Ferguson, which had been made on merit.
It was therefore necessary in the light of the foregoing and in the context of the applicant's complaint, for the Tribunal to consider the religious balance of the respondent's workforce, and in particular, at Central Station.
3.15 The relevant monitoring information provided to the Tribunal showed that on or about 8 January 2000 of the 117 operational staff of the respondent based at Central Station, Belfast, it was 72 (61.5%) were Protestant, 31 (26.5%) were Roman Catholic and 14 (12%) were non-determined. The said monitoring information also showed that following this recruitment exercise of the respondent's station supervisory staff, 11 (65%) were Protestant, 5 (29%) were Roman Catholic and one (6%) was non-determined. In particular, at Central Station it showed there were three Protestant Station Supervisors and two Roman Catholic Station Supervisors, of which one was Mr Ferguson, the successful candidate. Prior to the recruitment exercise therefore of the five Station Supervisors at Central Station only one was a Roman Catholic.
3.16 There was no evidence brought by the applicant of any other incidents where the respondent, or in particular Mr Parr and/or Mr Shannon, took similar action, as suggested by the applicant, to achieve the result of reducing any religious imbalance. Indeed, the applicant in his evidence suggested that it was his belief that Mr Parr was acting on his own and not on the instruction of any higher management. There was no evidence that Mr Parr had been given any such instruction by higher management to carry out such a task. Indeed, given the good reputation of Mr Parr, and respect in which he was held, other than in relation to this particular exercise, as expressed by both the applicant, but also by Mr Murphy, the reserve candidate, the Tribunal had some difficulty in believing that Mr Parr would have carried out such an action on his own. The applicant also acknowledged in his evidence that even if Mr Parr was attempting to achieve such a reduction he would have had to persuade Mr Shannon to go along with such an attempt.
3.17 The applicant stated that this imbalance, amongst the supervisory staff, and in particular at Central Station, was well known amongst the workforce and had been discussed amongst the workforce. When pressed in cross-examination, he was unable to give any details of any such discussions. He further accepted that the issue had not been formally raised by him or his colleagues, to his knowledge, with higher management or indeed with Mr Parr. Indeed, there was no other evidence that it ever had been. Both Mr Murphy and the applicant referred to informal discussions 'on the platform' prior to the time of this recruitment exercise that there was an under representation of Roman Catholics at supervisory level at the respondent and, in particular, at Central Station. Neither the applicant, nor indeed Mr Murphy, prior to these proceedings had specific knowledge of the statistics, referred to above, and as presented to the Tribunal. However the Tribunal is satisfied that it would have been well known amongst the supervisory staff at Central Station that, prior to this exercise, the religious affiliation of their fellow workers was that four Station Supervisors were Protestant and one was Roman Catholic. Whilst it may have been the subject of 'idle chit chat on the platform', the Tribunal is not satisfied that it was discussed as a matter of concern and in particular in the context of this recruitment exercise. The Tribunal believes that both the applicant and Mr Murphy are attaching, with the benefit of hindsight, more importance to these discussions than they ever had at the time. Indeed, Mr Murphy made it clear to the tribunal that these discussions 'on the platform' had not been the sort of talk that he would have involved himself with. Equally, the Tribunal had no doubt that Mr Parr, who had been employed for most of his time with the respondent in or about Central Station, prior to his appointment as Station Manager at Central Station, would have had a pretty good and accurate idea of the religious affiliation of the supervisory staff at Central Station, and would certainly have known, before the appointment of Mr Ferguson, that there were four Protestant Station Supervisors and one Roman Catholic Station Supervisor. The Tribunal is prepared to accept that any knowledge he had would not have been in the form of the statistical information presented at the Tribunal. Again, there was no evidence that it had been given to him in such form or raised with him by either higher management or the members of the workforce at Central Station. There was equally no evidence that he had any knowledge of the discussions on the platform, as referred to by the applicant or Mr Murphy. Equally, the Tribunal is prepared to accept that whilst Mr Parr knew the religious affiliation of the supervisory staff at Central Station, as indicated above, he did not concern himself with it, in the absence of any instructions/guidance from higher management in his day-to-day duties as a Station Manager, and in particular in relation to this recruitment exercise. Mr Parr specifically denied that he took any action in connection with this recruitment process in order to improve the religious imbalance of the supervisory staff working in Central Station. The Tribunal, in light of the foregoing, accepted this denial.
The Tribunal had no hesitation in accepting that, prior to these proceedings and, in particular, prior to this interview, Mr Shannon had no knowledge of the statistical information presented to the Tribunal. He had no knowledge of the informal discussions 'on the platform' as referred to by Mr Murphy and the applicant. Mr Shannon recalled that in or about 1996, the respondent had produced statistics about the religious make up of the workforce at a management conference in Newcastle, which he had attended. As he recalled there was no concern at the conference about the religious imbalance of the workforce in the Belfast area; and, in particular, supervisors at Central Station, but there was some concern expressed about other areas. Subsequently he had seen external advertisements outside the Belfast area with welcoming statements. At the conference he was made aware that it might be considered appropriate by the HR Department to insert welcoming statements in advertisements, but this was not a matter with which he concerned himself. He equally denied, which denial the Tribunal accepted in light of the foregoing, that he took any action in connection with this recruitment process to reduce any religious imbalance amongst the workforce at Central Station, either on his own initiative or resulting from any persuasion or prompting from Mr Parr.
3.18 The Tribunal had no doubt that at training sessions, such as the one attended by the applicant, subsequent to this recruitment exercise, the use of 'welcome statements' in external advertisements, where there was concern by the respondent of an under representation by a particular community, would have been dealt with in general terms. Mr Connolly, the Training and Development Manager of the respondent from 1997, and previously a Consultant to the respondent, confirmed that the use of such a welcoming statement would have been the decision of the HR Department, who would have any statistical detailed information about the workforce both in general terms and in a particular area and not the Recruiter/Line Manager such as Mr Parr. The Tribunal had no reason to doubt this evidence. He acknowledged that the use of such statements and where to use them would have been the subject of ongoing discussions between the respondent and the Equality Commission, in particular in light of company statistics which revealed any under representation of a particular community. However, no evidence was produced to the Tribunal that at any material time, the religious imbalance of the workforce of the supervisory staff at Central Station was at any time the subject of any particular discussion between the Equality Commission and the respondent and equally, there was no evidence that it was the subject of any Section 31 Review and/or any specific affirmative action measure, permitted under the Fair Employment legislation. There was evidence produced at the Tribunal that dealt with an affirmative action programme to be introduced by the respondent. However, it related to a period after this recruitment exercise and did not cover the area of Belfast. There was further documentary evidence produced to the Tribunal, which indicated that there were affirmative actions introduced by the respondent at the time of the 1996 Section 31 Review; but there was no evidence that they were specifically addressed to any religious imbalance in the workforce in Belfast and, in particular at Central Station.
The above evidence was produced at the conclusion of the case, despite a request from the applicant's Solicitors, by letter dated 17 July 2003 for discovery of 'any record of discussions, actions or decisions involving the respondent and any other party concerning any consideration of an affirmative action programme or any other programme designed to increase the number of job applications for members of the Roman Catholic community or to increase the number of Roman Catholics applying for or recruit into specific positions'. By letter dated 14 October 2003, the respondent's Solicitors replied, inter alia, that they had consulted with their client and were satisfied that, even if they had been minded to agree to make further discovery at that stage of the case, no further documentation existed, as requested in the letter of 17 July 2003.
It became clear from the evidence of Mr Connolly, as set out above, that there had been, at least, during his period of time with the respondent, ongoing discussions/meetings at various times between the Equality Commission and the respondent. The Tribunal was therefore surprised, in light of this evidence, that no relevant discovery relating to such discussions had been forthcoming, in light of the above request for discovery and the wide and general terms thereof, as set out in the above correspondence. The Tribunal indicated to Mr Ferrity, (prior to the conclusion of the hearing) that he might wish to seek further instructions, in light of Mr Connolly's evidence and the response to the earlier request for discovery. He did so by the evidence produced to the Tribunal, as referred to above, was the response of the respondent to the Tribunal's concerns. However, as stated above, this further evidence did not show that the religious make up of the workforce at Central Station had ever been the subject of discussion and/or an issue between the Equality Commission and the respondent. The Tribunal has little doubt that, in the context of these proceedings, that this documentary evidence should have been revealed at an earlier stage and, in particular, in response to the applicant's request for discovery as set out in the letter of 17 July 2003. Whilst it is acknowledged there was an issue of relevance arising with regard to this further documentary evidence in relation to the particular issues of this case and whether or not the religious make up of the workforce in Central Station had ever been an issue addressed by the respondent; the Tribunal felt that this issue of relevance could have been better and more fully addressed than the simple denial, that any such further documentation existed. Indeed, the Tribunal is of the opinion that it if had been examination/cross-examination of the applicant's witnesses might have been shorter and less contentious. However, the Tribunal, does not accept, in the circumstances, the applicant's contention that, by this late discovery of the further documentary evidence, the respondent had been deliberately obstructive.
3.19 Mr Murphy, in the course of his evidence, referred to a meeting which he had attended when he had been trade union representative in or about the period 1994 – 1997, organised by his trade union and attended by a representative from the Labour Relations Agency. It appeared that this meeting was to discuss the proposed use by the respondent of an external trawl for the grade of Conductor. Nobody from the respondent was in attendance at the meeting. Mr Murphy was somewhat vague about what had taken place at the meeting. The Tribunal concluded that the meeting was to do with concerns of Mr Murphy's trade union whether the respondent was acting lawfully in opening up the recruitment of Conductor grade by use of such an external trawl, since this could block promotional opportunities for those in the lower grade. The Tribunal found Mr Murphy's evidence of this meeting of no assistance or relevance in relation to its consideration of any issue arising in this case of religious imbalance in the supervisory grade at Central Station and any steps taken by the respondent in relation to it.
3.20 Reference has already been made in this decision to the differences between the interview assessment record and the document prepared by Mr Parr and approved by Mr Shannon ('the Parr document'). A major difference, as indicated above, was the fact that under the interview assessment record, educational attainment/qualifications (academic/vocation), job training – was a separate category to be marked; whereas under the Parr document there was no such separate category. In the interview assessment record, there was a specific category of job experience – knowledge of work field, relevant skills. In the Parr document, the equivalent category had been named as Attainments. Under the specification in the Parr document, it referred to, inter alia, to 'recognised supervisory qualification/experience and/or a formal qualification in operational procedures ('passed Driver/Conductor/Signal Person'). This, as set out above, was an essential criteria for the post – which both Mr Ferguson and the applicant satisfied. Under the mark frame in the Parr document, this was worth one mark of a possible 10 marks.
3.21 Mr Parr stated in evidence that he had discussed with Mr Shannon at one or other of the two meetings he had prior to the interview the fact that there was not to be a separate category of educational attainment; as he considered that, whilst education in itself was a good thing, what he wanted to know was how the candidate would do the job. In his view, this would not be shown merely by a mere recital by a candidate of all qualifications attained whether academic and/or vocational. He had therefore decided to include the essential criteria of recognised supervisory qualifications/experience and/or formal qualification in operational procedures under attainments and not have a separate category of education attainment. It is to be noted that the essential criteria only required a candidate to show one part of the above criteria. If a candidate could show that he satisfied both parts of the criteria any relevance, in Mr Parr's opinion, would be revealed in how he answered the questions not the mere fact that he had both qualifications. The small mark for this criteria, in his mark frame for attainments again reflected his view as to how he regarded the importance of actual qualifications in assessing a candidate for the post. The importance of such qualifications, for him, was how the candidate demonstrated at interview his suitability for the job by his use of any additional knowledge gained not the mere qualification by itself. Mr Shannon had no recollection of such discussion at either meeting; but rather recalled that it had arisen in the course of the interviews. It was, at that stage, as he recalled when Mr Parr put forward his rationale, as set out above, for not marking as a separate category 'educational attainment'.
The Tribunal preferred Mr Shannon's recollection. As indicated previously, the Tribunal is satisfied that Mr Parr prepared the document in advance of the interviews and his said meetings with Mr Shannon, and that this document at all times excluded any category for educational attainment. The Tribunal further considers, as indicated above, that any discussion at this meeting was limited to Mr Shannon giving his formal approval to the document, as previously set out; and certainly did not specifically refer to the absence of any category of educational attainment or the reason for same and/or why the category in the interview assessment record was not to be assessed.
The Tribunal is satisfied that this issue only arose, whenever Mr Shannon and Mr Parr were assessing the applicant. He was the first candidate to be interviewed. It was clear from the interview assessment record forms produced in evidence to the Tribunal for the applicant, both Mr Parr and Mr Shannon began to give marks in this section of educational attainments; albeit it was not included for assessment under the Parr document. They each began to refer to the Passenger Charter as issues in the notes of each interviewer on the interview assessment record of the applicant. This was not relevant to this category of educational attainments but rather to the category of general intelligence, which in the Parr document, under specification, referred to the Passenger Charter. The Tribunal believes it was at this point when the interviewers realised that the Passenger Charter was not relevant to education attainment, that Mr Parr explained to Mr Shannon that he had left out assessment of educational attainments in his document, as a separate category, and should not therefore be marked on the interview assessment record; but he had included the specific essential criteria relating to the qualifications for this particular post, in the Parr document under attainments, giving it one mark, as set out therein; and he further explained his reasons for so doing, as set out above. The Tribunal is satisfied that Mr Shannon, having heard the explanation did not raise any objection. As a result, the assessment of the category of educational attainment was deleted for the applicant from the interview assessment record at that time and then subsequently for all the other candidates – and the comments already made in relation to Passenger Charter in relation to the applicant were transferred to the category of general intelligence. Indeed, it was in this context and for these reasons that the Tribunal concluded, as set out above, that the discussions held between Mr Shannon and Mr Parr prior to the interview were so limited.
3.22 There was no dispute that Mr Ferguson, like the applicant, satisfied the essential criteria, both having the qualification in operational procedures. The applicant, in contrast, had in addition a recognised supervisory qualification, but also a Certificate in Foundation Studies from the University of Ulster. Clearly, if educational attainment had been assessed, as a separate category, under the terms of the interview assessment record, the applicant might have expected to have obtained marks which would not have been obtained by Mr Ferguson. However, it also has to be noted in the Tribunal's opinion, no candidates were separately assessed under educational attainment; save in the context of where it appeared, as stated above, in the Parr document under attainments.
3.23 There was no note taken of this discussion; nor was any note made as to why both Mr Parr and Mr Shannon had commenced to assess educational attainment, but then crossed it out and deleted it entirely when assessing the other candidates. Equally, no evidence was given that the HR Department, whenever it obtained all the documents at the conclusion of the recruitment process, raised any issue with regard to the above changes made by Mr Parr and Mr Shannon. No representative of the HR Department was present during the course of the interviews.
3.24 A further issue arose, during the course of the hearing, in relation to the marking of the category of special aptitudes which appeared on both the Parr document and the interview assessment record. The former gave a mark frame with a maximum of 13; whereas the interview assessment record provided for a mark of 10. Again, the Tribunal is satisfied that Mr Parr prepared the document, in which he set out a mark frame for special aptitudes, giving a series of marks against the various bullet points referred to up to a maximum of 13; and that he did so in advance of the interviews prior to the meetings with Mr Shannon. Again, the Tribunal is satisfied that any discussions at these meetings were limited to Mr Shannon giving his formal approval to the document, as previously set out and did not specifically refer to the fact that this particular category was being marked out of 13 rather than 10. This was clear from the face of the Parr document. Again, the evidence, as in the case of educational attainments, was unclear as to whether or not there had been any discussion surrounding this issue at either of the meetings between Mr Parr and Mr Shannon, prior to the interview. Mr Parr believed that there had been; whereas Mr Shannon, insofar as he could remember, believed that any discussion took place at the time of the interview. The Tribunal, after examination of the interview assessment records, believes that this issue only came to be discussed when Mr Parr and Mr Shannon were assessing this particular section of special aptitudes. Again, it must be remembered that the applicant was the first candidate to be assessed. Mr Parr gave him a mark of nine. Mr Shannon initially gave him a mark of seven out of ten, but subsequently made it clear, by his initial, that his mark had been changed to nine out of 13. In relation to the other candidates, the interview assessment record makes clear that each interviewer marked this category out of 13 – setting out the potential marks, in writing on each form. Mr Parr has not done so with regard to the applicant. Mr Parr maintained, in his evidence, that his mark was nine out of 13 and not 10 and that he had omitted to do so, as he subsequently did with all the other candidates, by the addition in writing of the additional marks in the forms, that the category was marked out of 13. The change made by Mr Shannon clearly illustrates, in the view of the Tribunal, that it was realised, during the course of the assessment by the interviewers of this category, that the Parr document had provided for marks out of 13; whereas the interview assessment record only provided for marks out of 10. The Tribunal further believes that the alteration of the change as made by Mr Shannon makes it more likely that his recollection is correct and that this matter came up for discussion at the time of the interviews and not at any of the earlier meetings. Mr Parr was clear in his evidence that he had deliberately, when drafting his document, set out the marks against the individual bullet points in the specification, under this heading of special aptitudes, to make a total of 13; and that he had done so, in order to reflect the importance of the various specified matters for this particular post, as referred to therein, including in particular communication skills. He acknowledged that this could have been done, and was often done, by means of a percentage weighting given to a score. He stated that marking it out of 13 rather than a percentage weighting was the way he had decided to do it at the time when he drew up the document on his computer. He had not sought nor had he been given any advice on how to do it by the HR Department. Mr Shannon, as appears from the form and as stated in evidence, had initially assessed this category out of 10; but then had clearly realised or had had drawn to his attention by Mr Parr that it had to be out of 13, as set out in the Parr document. This led him to make the change, which he initialled, and to make it clear on the applicant's interview assessment record form and all other candidates' interview assessment record forms that he was marking out of 13 and not out of 10. The Tribunal does not believe that there was much discussion between Mr Parr and Mr Shannon as to why the Parr document had given a total mark of 13. Mr Shannon had accepted and had no dispute with Mr Parr that extra weighting should be given to this category, which they both recognised was of particular importance to the post. Mr Parr, as the author of the Parr document, at all times was therefore aware that he was marking this category of special aptitudes out of 13. In the circumstances, the Tribunal is therefore prepared to accept that when Mr Parr gave a mark of nine for the applicant he was at all times marking it out of 13. However, given the problem Mr Shannon had found himself in, where he had initially marked the category out of 10 and then had to change it to 13, the Tribunal believes that Mr Parr then, like Mr Shannon with all other candidates' interview assessment record forms, made it clear that he was marking out of 13. The Tribunal is therefore prepared to accept, in light of the foregoing, that there is no significance to be attached to the fact that he failed to make any similar alteration in relation to the applicant's interview assessment record form. This, once again, illustrates the difficulties and dangers of using a proforma interview assessment record form to mark the candidates; whereas the interviewers were using for the purpose of the interview the Parr document, which had the differences to which reference has been made above. If the HR Department had seen the Parr document before the interview and/or had been present at the interview, it is likely that these difficulties would have been revealed, and also could have been dealt with in a more satisfactory and transparent manner than occurred. The Tribunal is therefore satisfied that all candidates, including the applicant, were marked out of 13 for this category of special aptitudes.
3.25 The Tribunal noted that under the relevant recruitment and selection procedures of the respondent relevant to the recruitment exercise, the Chairman was responsible, on behalf of the interview panel, for devising the scoring system; deleting and/or amending to suit the circumstances certain criteria on the generic assessment record; weighting particular criteria of the panel decided that certain criteria are more important than others by attaching higher maximum score to the selected criteria, which should be clearly recorded. What was done by the interviewers in not assessing education attainments and marking special aptitudes out of 13 had, as set out above, some basis under the relevant procedures; but was carried out by them in a most unsatisfactory manner, without the assistance and guidance of the HR Department.
3.26 In the interview assessment record form, there is a category at the end entitled 'overall assessment – how well does the candidate meet the selection criteria for the job'. This was not marked in respect of any candidate. There was no similar category in the Parr document. In the interview assessment record there was also a space set out for the interviewers to make comments (if appropriate). This was not used in respect of any candidate. The total marking was then set out on the interview assessment record form and transcribed by the interviewers on to the interview assessment summary.
A. Physical Make-Up
| Interviewer | Mr Ferguson | Mr Moore | Mr Murphy | Mr McCutcheon |
| Mr Parr | 8 | 8 | 8 | 7 |
| Mr Shannon | 6 | 6 | 6 | 6 |
B. Job Experience
| Interviewer | Mr Ferguson | Mr Moore | Mr Murphy | Mr McCutcheon |
| Mr Parr | 8 | 8 | 8 | 4 |
| Mr Shannon | 8 | 7 | 8 | 4 |
C. Educational Attainments
| Interviewer | Mr Ferguson | Mr Moore | Mr Murphy | Mr McCutcheon |
| Mr Parr | ||||
| Mr Shannon |
D. General Intelligence
| Interviewer | Mr Ferguson | Mr Moore | Mr Murphy | Mr McCutcheon |
| Mr Parr | 9 | 8 | 9 | 4 |
| Mr Shannon | 8 | 7 | 7 | 4 |
E. Special Aptitudes (Out of 13)
| Interviewer | Mr Ferguson | Mr Moore | Mr Murphy | Mr McCutcheon |
| Mr Parr | 11 | 9 | 10 | 6 |
| Mr Shannon | 10 | 9 | 9 | 6 |
F. Personal Qualities
| Interviewer | Mr Ferguson | Mr Moore | Mr Murphy | Mr McCutcheon |
| Mr Parr | 8 | 6 | 7 | 4 |
| Mr Shannon | 7 | 7 | 7 | 4 |
G. Circumstances
| Interviewer | Mr Ferguson | Mr Moore | Mr Murphy | Mr McCutcheon |
| Mr Parr | 9 | 9 | 9 | 9 |
| Mr Shannon | 7 | 7 | 7 | 6` |
The marks transferred to the interview assessment summary were as follows:-
| Candidate | Interviewer: Parr |
Interviewer: Shannon |
Total |
| Mr Ferguson | 53 | 46 | 99 |
| Mr Murphy | 51 | 44 | 95 |
| Mr Moore | 48 | 43 | 91 |
| Mr McCutcheon | 34 | 30 | 64 |
The interview panel recommended for the position Mr Ferguson and the candidate for the reserved list, Mr Murphy.
The interview assessment summary was signed by both members of the panel and dated 23 December 1999. At the conclusion of the interview all the papers were passed by Mr Parr to the HR Department, who signed the interview assessment summary on 23 December 1999. As indicated previously, Mr Ferguson was then appointed to the position, with Mr Murphy as the reserve candidate. The applicant was in third place, some four marks behind Mr Murphy and some eight marks behind Mr Ferguson. Mr McCutcheon, having received only 64 marks was never in line to be appointed to the position.
3.28 During the course of the evidence it became clear that there was a difference in approach by each of the panel members to how they approached the actual marking of each candidate. Mr Parr suggested in marking each candidate he had followed the mark frame set out in the Parr document. However, it was not clear to the Tribunal, from his evidence or from any document, what precise marks he had allocated to each candidate in relation to the available marks as set out in the mark frame for each section in the Parr document. At best, in the absence of such evidence by Mr Parr, the Tribunal accepted Mr Parr in marking had had particular regard to the mark frame in reaching the mark given and the emphasis suggested by the mark frame; but had not marked strictly in accordance with the mark frame. On the other hand, Mr Shannon accepted that in relation to each section on the interview assessment record, he had, in essence, given a 'global mark'. He had taken into account the maximum scores set out in the Parr document but had not attempted to breakdown the marks in the manner set out in the Parr document in relation to each specification. At the conclusion of the evidence the Tribunal were forced to conclude that both panel members had, in reality, given a global mark, in respect of each candidate; though in doing so, Mr Parr had had more regard for the mark frame, as set out in the Parr document. What Mr Shannon did in marking each candidate was in fact closer to the guidance for marking set out in the interview assessment record. This difference of approach by the two panel members to the marking of each candidate, albeit individually they marked each candidate in the same way, is most unsatisfactory. If a marking system, as set out in the Parr document, is to be adopted and used then in assessing each candidate, it should be clearly set out by each panel member what marks have been allocated in relation to each specification. If this had been done in this case, then many of the difficulties which subsequently arose, could have been avoided.
3.29 The first category to be assessed at interview was physical make-up (interview assessment record) or physical make-up and appearance (Parr document). As set out above, Mr Parr gave the applicant and Mr Ferguson eight marks and Mr Shannon gave both the applicant and Mr Ferguson six marks. During the course of the hearing, these marks were not an issue.
3.30 The second category to be assessed at interview was job experience (interview assessment record) or attainments (Parr document). As set out above, educational attainment (interview assessment record) was not marked by the panel; and in the Parr document under attainments in the relevant specification one mark was given for recognised supervisory qualification/experience and/or a formal qualification in operational procedures (passed Driver/Conductor/Signal Person). It has to be remembered that, whilst this was an essential requirement for the post, the requirement was set out on an and/or basis. In the view of the interview panel, the fact that a requirement was set out on the above basis meant additional marks were not available because a particular candidate was able to satisfy both parts. Whilst Mr Parr acknowledged the value of any such additional educational qualifications obtained by a candidate, for him the value was the use any additional knowledge gained by a candidate was put to in dealing with the matters raised at the interview. The additional qualifications did not of themselves give rise to additional marks. The Parr document gave two marks for a sound knowledge of customer care practice; two marks for previous supervisory experience, preferably two years; five marks for knowledge of Health & Safety at Work. The first question for use in the assessment of this section was 'general questions on presentation'. The presentation topic was 'presentation based on your achievements as a Station Supervisor six months into the position'.
The interview assessment record made no specific provision for such a presentation or the marking of same. Mr Parr at his own recent interview for the position of Station Manager had had to give such a presentation and felt it was a useful method of assessing candidates and therefore decided to include such a presentation as part of this interview. There was no dispute that each candidate had been notified in advance of the necessity to give such a presentation and the topic of the presentation. Again, this appears to have been done without any discussion with HR Department – who would only have become aware of it on the receipt of the paperwork at the conclusion of the recruitment exercise. The second question in this section related to Health & Safety, to which five marks were attached, as set out above, which reflected the importance attached to this issue.
There was no dispute that technically the applicant's presentation was far superior to that of Mr Ferguson – using acetates and a overhead projector. Whilst clearly the content of the presentation and the answers to the questions on the presentation were relevant in the assessment of each candidate, marks were not specifically allocated or provided for on the mark frame in the Parr document for the expertise in which the presentation was given. At the hearing the content of the applicant's presentation in comparison to that of Mr Ferguson, was in dispute Notes of the panel confirmed, in the Tribunal's view, that neither interviewer considered the applicant had properly dealt with the presentation topic but had concentrated on what he had already done, rather than what would have been his achievements as a Station Supervisor six months into the position. The applicant did not dispute that, during the course of the interview, he had been asked by the panel members – questions asking what had he achieved. Indeed, the nature of this questioning is reflected in the notes of the panel. Mr Parr, for example, has stated in his notes 'handout very professional document, however limited in actual achievements'.
A further significant issue in the assessment of this section, related to the two marks available, as set out in the Parr document, for 'previous supervisory experience, preferably two years'. This was a desirable criteria. The criteria did not define the supervisory experience required or limit it to 'station' supervisory experience. Given the applicant's experience as a Station Supervisor he clearly satisfied this criteria. He contended that the successful candidate, Mr Ferguson, had no supervisory experience of any kind for the said period of two years, and that, in such circumstances, he found it hard to reconcile the marks given to him and those given to Mr Ferguson, for this category of job experience/attainments, as set out above.
Much time was spent at this hearing, considering the previous experience of Mr Ferguson and whether he could be considered as having 'previous supervisory experience, preferably two years'. The relevant experience of Mr Ferguson related to his experience, for the previous two years prior to the time of interview as a Customer Services Co-Ordinator, as a Customer Services Co-Ordinator on the Cross-Border Enterprise train. The job description for the said post did not set out a line management role for such a person in the way that Station Supervisor and/or Relief Station Supervisor would have had. In essence, he managed the train – 'monitoring and co-ordinating all aspects of train activities and customer services to ensure the comfort, satisfaction and safety of passengers, in accordance with the standards defined in the Passenger Charter'. Apparently, in England, the equalivent person is referred to 'The Train Manager'. The Tribunal found some assistance from the minutes of a meeting held between the management of the respondent and trade union representatives in or about July 1996, when the personnel specification for this post had been drawn up. From these minutes, it can be seen that the management of the respondent recognised that there was a supervisory role to certain areas of the job, ie responsibilities for the train and customer environment, ensuring the highest standards of customer care and levels of service guaranteed – though equally it was recognised it was not to be confused with a man-management role.
The Tribunal was satisfied, by their evidence, that both Mr Parr and Mr Shannon had proceeded at the interview on the basis that Mr Ferguson, in the above role, did satisfy the desirable criteria of two years previous supervisory experience. However, the Tribunal had to take note that, at the time of short-listing, Mr Parr had stated on the form of Mr Ferguson, and also Mr Murphy (the reserve candidate) did not have such experience and which, in light of his actions at interview and evidence to the Tribunal he could not explain. Mr Shannon had not seen the short-listing form at the time of the interview and was not aware, prior to these proceedings, what Mr Parr had written. Both Mr Parr and Mr Shannon, in their respective roles for the respondent, had experience of observing Mr Ferguson in his role as Customer Services Co-Ordinator on the Cross-Border Train and were fully aware of his duties and role 'managing the train'. Both Mr Parr and Mr Shannon in assessing the applicant noted on the interview assessment record that the applicant had supervisory experience, though no such similar reference was made to Mr Ferguson.
Mr Murphy, the reserve candidate, was at the meeting in July 1996 as a trade union representative and had attempted to suggest to management that there was a man-management element to the role – albeit this was not accepted by the respondent at that time. On his application form, Mr Murphy referred to his period for nearly 12 months as a Relief Station Supervisor, like the applicant; but also to his experience for just over 12 months as a Customer Services Co-Ordinator, like Mr Ferguson. In describing his duties as Customer Services Co-Ordinator, he referred to the type of duties, which are set out in the job description for the post. These duties included those duties which were taken in 1996 to have a supervisory role, albeit not a man-management role. In his application form, Mr Murphy had also referred to other supervisory roles he had performed, prior to joining the respondent and in particular his role as a Manager in the 1980s for a supermarket. The Tribunal had no doubt that Mr Parr and Mr Shannon, when accepting, at interview, that Mr Murphy had the necessary experience to satisfy the criteria were relying, in particular, on his experience as a Relief Station Supervisor, but also as a Customer Services Co-Ordinator rather than his supervisory experience as a supermarket manager before he joined the respondent. However, the Tribunal had to also take into account that Mr Parr, at the time of short-listing, as he had done for the applicant, indicated on the short-listing form that Mr Murphy did not satisfy this criteria. As with the applicant, he was not able to explain why he had done this at that time. The Tribunal in considering this issue found it significant that Mr Murphy had confirmed, in evidence, that Mr Ferguson, because of his work as a Customer Services Co-Ordinator, and the training he would have been given for the post, would have been a particularly strong candidate in relation to the communications and customer care aspect of the post of Station Supervisor; but had also stated he would have been relatively inexperience in operational matters and in terms of supervision. He did not consider Mr Ferguson's supervisory experience in any way compared with that of the applicant, as in the position of Customer Services Co-Ordinator he did not have that man-management element. However, in the tribunal's view, it was not without significance that Mr Murphy had encouraged Mr Ferguson, who was a friend, to apply for the post of Station Supervisor – though he believed both he and the applicant, as Relief Station Supervisors were stronger candidates and were more likely to be successful. He stated that he encouraged Mr Ferguson to apply for the post because if either he or the applicant were successful then Mr Ferguson would have been in a good position to succeed to the vacant post. Again, there was no suggestion that if that occurred Mr Ferguson's experience as a Customer Services Co-Ordinator would not have satisfied the necessary desirable criteria relating to supervisory experience for that post.
The Tribunal was satisfied in light of the foregoing but also in particular the absence of any definition of the type of supervisory experience required and the recognition that the Customer Services Co-Ordinator post had a supervisory element that the interview panel had justification for undoubted conclusion that the applicant but also Mr Ferguson and Mr Murphy satisfied the said desirable criteria. However before concluding this issue the Tribunal were required to consider, to which reference shall be made later, that at short listing, Mr Parr had indicated neither Mr Murphy or Mr Ferguson had such supervisory experience and for which he had no explanation.
Under this section, Mr Parr gave both the applicant and Mr Ferguson eight marks, whilst Mr Shannon gave seven marks. As seen previously, the marks allocated did not relate solely to the issue of previous supervisory experience. Indeed five marks were allocated to the issue of Health & Safety. If the successful candidate, Mr Ferguson, did not have the necessary supervisory experience to satisfy the desirable criteria, then it may have been that Mr Moore could have received a higher mark than that of the successful candidate. Although the mark frame in the Parr document gave two marks for this element of the specification, it is very difficult for the Tribunal to come to a firm view as to the precise difference that might have made to the marks given, in light of the manner in which both panel members marked each candidate, as set out above. The Tribunal could not be clear, from the evidence, for example, what mark Mr Parr had given to each candidate for each specification and in particular for sound knowledge of customer care practice (two marks) and knowledge of Health & Safety (five marks), assuming he had given one mark for the supervisory qualification and two marks for the previous supervisory experience. Five marks, reflected the importance of the issue was given by Mr Parr in the Parr document to knowledge of Health & Safety at Work. Both the applicant and Mr Ferguson, had dealt with this issue in their presentations in response to the topic given. However, there was, as indicated above, criticism of the applicant's presentation, which had to have been reflected in the marks given. In the circumstances, however the Tribunal is unable to quantify the difference it might have made.
3.31 The next section to be assessed was that of general intelligence. The first question on which the section was assessed related to the Passenger Charter and the second question to working under pressure and how the end goal was achieved. Marks in this section were awarded, as set out above, by the panel members. The Tribunal found that the applicant, in his evidence to the Tribunal, was at no time prepared to concede that he might not have answered the questions both in this section, but also in other sections, as well as he now believed. At no time in cross-examination was he prepared to make any real concessions with regard to the answers he had given. Indeed, he even suggested in relation to this section he would have been entitled to the full 10 marks available. The Tribunal find this attitude unrealistic and less then convincing. Indeed, it gave some weight to the suggestion, put to him in cross-examination, that he believed that since he had been doing the job, and longer than any other candidate, the interview panel would have no choice but to appoint him. The Tribunal have no doubt that the applicant undoubtedly prepared thoroughly and earnestly for the interview. However it is equally of the view that the applicant expected to obtain the post and did not properly take into account that his expectation was not enough and he had to convince the members of the interview panel by his answers and performance at interview that he should be appointed. The applicant, in preparation for the hearing before the Tribunal, has had an opportunity, which he obviously did not have at the interview, to see the specification/criteria/bullet points/mark frame set out in the Parr document, together with the notes of the interviewers. The Tribunal felt that in recalling the answers he had given at interview he did so with the benefit of hindsight and after careful study of the above documents. The Tribunal is not in the position of re-hearing the interview. The applicant in giving evidence about the answers that he did give at the time of the interview criticised what he saw as omissions in the notes of the panel. However, these are only notes and at no time were intended to be verbatim notes of the interview. Indeed, the Tribunal had some considerable sympathy for the members of the panel as they tried to recall at the Tribunal hearing, some four years later, all that took place during the course of each interview and to give detailed explanations of the various notes made. However, the applicant was prepared to accept that the notes of Mr Parr and Mr Shannon, however brief and inadequate, did refer to many of the matters he referred to in his answers to the questions asked under the various sections and/or were discussed with him by the panel. His main criticism seemed to be that the notes did not refer to other matters that he had dealt with in the course of his answers. In the view of the Tribunal this was an unfair criticism. These were only notes and not every part of any answer given was likely or could be expected to be recorded. The panel had properly recorded what for them was relevant and/or noteworthy.
The applicant's position in relation to his answer under this section, which the Tribunal found somewhat untenable and unrealistic, seemed to be because he had been doing the job he would have had to have been in a better position to answer this question about the Passenger Charter and the question relating to pressure than anybody else. However Mr Ferguson, in his job on the Cross Border Train was very much involved in Passenger Charter issues, but also working under pressure, and therefore, in the Tribunal's view, would have been in a good position to answer the questions in this section. In these circumstances, the Tribunal could accept the interviewers' decision to award greater marks to the successful candidate than Mr Moore in this section, on the basis that in their view better answers had been given to these questions by Mr Ferguson. The notes of the interviews were only notes, but even from these, it can be seen that the successful candidate, like the applicant, was referring to matters relevant to the questions put to the candidates. Assessing the answers of each candidate must involve judgement on the part of the interviewers. It also has to be noted, in this context, that the difference in marks by each interviewer in relation to this section was only one mark. The Tribunal, in the circumstances, are not prepared to find the interviewers, in giving the said marks, exercised their judgement wrongly.
3.32 The next section of special aptitudes was, as set out above, an important section for the interviewers and this was reflected, in the Parr document, by the allocation of 13 marks rather than the normal ten marks. As Mr Parr told the Tribunal he was looking for 'Mr N.I.R. on the platform' and this was tested with reference to the question set out in the Parr document – 'A member of the public has just arrived back to Central having been put on the wrong train. The passenger claims they were not told to change trains at Central, and they have now missed an important meeting. What are we going to do about their predicament?" The specification set out the marks to be given. It was clear from the evidence, that the panel did not like the applicant's answer to this question and he accordingly lost marks – which given the section was out of 13 was a matter of some significance. The interview panel took from the applicant's answer that the staff might be right and the customer was usually wrong. The applicant's emphasis as reflected in the panel notes seemed to be to find out whose fault it was rather than what to do for the customer who had missed the meeting. Indeed, the applicant accepted in evidence that if the panel had got that impression he would expect to be marked down. Indeed, he acknowledged that the panel could possibly have got that impression, albeit it was certainly not the impression he wished to convey. Whereas the emphasis of the successful candidate, Mr Ferguson, is reflected in the panel's notes, was to apologise to the customer, resolve the customer's immediate problem and then deal with issues of investigation and/or whether or not the staff acted wrongly. It is not the function of the Tribunal to decide which is the better answer. Clearly, in the view of the Tribunal, the panel preferred the answer of the successful candidate and he was awarded greater marks than the applicant. The Tribunal could not fault this, since the context of the question was to assist the panel to find 'Mr N.I.R. on the platform'. Indeed, the Tribunal did not believe that the overall answer of the applicant was necessarily wrong but it was the emphasis in his answer, in the context of the question, that was found to be wrong. The notes of the panel suggested his answer had, in essence, dealt with all the elements required to be answered but he had not done so with the appropriate emphasis, in the context of the question. This failure, by the applicant, was thus reflected in the marks given to him by the panel. In light of the said weighting any such failure was of greater significance with regard to the marks awarded to the applicant in comparison to Mr Ferguson.
3.33 The next section in the Parr document was disposition. This clearly had close similarities to the section 'personal qualities' in the interview assessment record. The question, in the Parr document, used to assess this section sought to ascertain from each candidate why the panel should chose that candidate rather than any other. Mr Shannon gave Mr Ferguson and the applicant the same mark. The applicant clearly, in his answer, referred to and highlighted his educational qualifications – which as seen previously was more than was required for the post. He also referred to his experience as Station Supervisor and his handling of customers. Mr Parr's criticism, which was reflected in his notes, was that the applicant did not sell himself. In essence, he expected his qualifications and experience to speak for themselves. This reflected a concern which the Tribunal also detected from the applicant, when giving his evidence to the Tribunal, despite his denials, that he was of the view that since he had been doing the job that he only had to turn up at the interview and the panel could not chose anyone else. He did not appear to appreciate that that whilst clearly his experience of the job was very relevant, it was not enough in itself. The Tribunal was prepared to accept that this attitude on the part of the applicant at interview was reflected in the marks given to him by Mr Parr, in comparison to Mr Ferguson. Mr Ferguson did not have, unlike the applicant, station supervisory experience, though he did have considerable experience in the area of customer care, as confirmed by Mr Murphy, and which was particularly important for the role as envisaged by Mr Parr of 'Mr N.I.R. on the platform'. As reflected in Mr Parr's notes, Mr Ferguson had not merely referred to his said experience but went on to say, unlike the applicant, why this made him the better choice. This difference was clearly reflected in the marks given for this section in particular by Mr Parr.
The applicant seemed, in the view of the Tribunal, to find it impossible to see how anyone could be chosen ahead of him. Despite his acknowledged greater experience as a Station Supervisor than Mr Ferguson, he was not content, in his evidence, to let that inexperience speak for itself. He suggested, in evidence, that he was the Line Manager of Mr Ferguson in his position of Customer Services Co-Ordinator. Whilst in their respective roles each had to work closely together and the applicant, on occasion, might have had to give instructions to Mr Ferguson, their relationship was never a line management relationship. The fact that Mr Ferguson required assistance/training for a short while after he took up the post from other Station Supervisors, such as the applicant was, as the applicant subsequently had to admit in cross-examination, for a very short period and in accordance with normal practice in such circumstances.
3.34 The final section assessed was circumstances. There was no issue raised during the course of the hearing about the marks given in this section.
Regulation 24 states:-
The burden of proof : Tribunal
After Article 38 of the Fair Employment & Treatment Order insert –
Burden of proof : Tribunal
38A
Where on the hearing of a complaint under Article 38, the complainant proves facts from the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent –
(a) has committed an act of unlawful discrimination or unlawful harassment against the complainant, or
(b) is by virtue of Article 35 or 36 has been treated as having committed such an act of discrimination or harassment against the complainant, the Tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be is not to be treated as having committee that act.
Mr Ferrity submitted, having regard to the transitional provisions contained in the said Regulations that Regulation 24 and the alteration of the burden of proof contained therein did not apply to the determination of these proceedings. Regulation 2 contains the transitional provisions. Insofar as material it states:-
2. Regulation 24 …. apply in relation to proceedings instituted before 10 December 2003 as well as those instituted or after that date but do not affect any case in which proceedings were determined before that date.
Mr Ferrity attempted to draw a distinction between proceedings which were instituted and those which had been already part-heard, whenever the Regulations came into operation. He submitted that the provisions were not retrospective and certainly did not apply to proceedings which had been commenced and were part-heard prior to 10 December 2003. Mr Wolfe submitted that the meaning of Regulation 2 was clear; since these proceedings had been instituted and not determined before the coming into operation of the Regulations, then Regulation 24 applied to the determination of these proceedings.
The Tribunal agreed with the submissions of Mr Wolfe. Whilst recognising the proceedings initially commenced on a certain basis, the Tribunal was of the opinion that the wording of the transitional provision was clear and unambiguous and that Regulation 24 had to be applied to the determination of these proceedings – albeit that the Regulations only came into operation during the course of the hearing. The legislation made it clear that the only proceedings not so affected were those determined before the operative date. These proceedings were not determined before the operative date and were therefore subject to the provisions of Regulation 24. The Tribunal noted that in contrast Regulation 4, which dealt with the definition of indirect discrimination under the 1998 Order, no such 'retrospective' transitional provision had been made. However the Tribunal, having the noted the coming into operation of the said Regulation after the commencement of the hearing of this matter, gave, at that stage, the parties the opportunity, if they wished, to adduce any additional evidence, albeit out of sequence that they considered appropriate or necessary in light of the coming into operation of the said Regulations. Neither party considered it necessary to do so. The Tribunal is therefore satisfied, for the above reasons, that the Tribunal is required to determine this matter in relation to the burden of proof, as set out in the provisions of Article 38A of the 1998 Order, as amended.
"25. We therefore consider it necessary to set out fresh guidance in light of the statutory changes:
(i) Pursuant to Section 63A of the Sex Discrimination Act 1975, it is for the applicant who complains of sex discrimination to prove, on the balance of probabilities, facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondents have committed an act of discrimination against the applicant which is unlawful by virtue of Part 2 which by virtue of Section 41 or 42 SDA is to treated as having been committed against the applicant.".
These are referred to below as 'such acts'.
(ii) If the applicant does not prove such facts he or she will fail.
(iii) It is important to bear in mind in deciding whether the applicant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers will be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that 'he or she would not have fitted in''.
(iv) In deciding in whether the applicant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.
(v) It is important to note the word is 'could'. At this stage the Tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage, a Tribunal is looking at the primary facts proved by the applicant to see what inferences of secondary fact could be drawn from them.
(vi) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with Section 74(2)(b) of the Sex Discrimination Act from an evasive or an equivocal reply to a questionnaire or any other questions that fall within Section 74(2) of the Sex Discrimination; see Hinks v Riva Systems EAT/501/96.
(vii) Likewise, the Tribunal must decide whether any provision of any Code of Practice is relevant and if so, take it into account in determining such facts pursuant to Section 56A(10) SDA. This means that any inferences may also be drawn from any failure to comply with any relevant Code of Practice.
(viii) Where the applicant has proved facts from which inferences could be drawn that the respondents have treated the applicant less favourably on the grounds of sex, then the burden of proof moves to the respondent.
(ix) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed that act.
(x) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since 'no discrimination whatsoever' is compatible with the burden of proof directive.
(xi) That requires the Tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not any part of the reasons for the treatment in question.
(xii) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, the Tribunal would normally expect cogent? evidence to discharge that burden of proof. In particular, the Tribunal would need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.
These guidelines, and it must be remembered that they are only guidelines, have been followed in a number of decisions in the Employment Appeal Tribunal, subject to the rider set out in the decision of Burton P in the case of University of Huddersfield v Wolff [2004] IRLR 534 at Paragraph 26 of the judgement:-
"26. The right course,, therefore, for the Tribunal, had it set out at first to find material facts, but in any event even though it did not quite follow that format, would be to address Section 63A and, in particular, to conclude that the burden moves where the applicant has proved facts from which inferences could be drawn but that respondents have treated the applicant less favourably on the grounds of sex. It must therefore arrive at a conclusion that there is a prima facie case that the respondent has treated the applicant less favourably on the grounds of sex. Once it has done that, then it passes to consider the respondent's explanations; it must, if it has not already done so, make findings of fact, or draw inferences from finding of facts, for the purpose of concluding whether any of the explanation put forward by the respondents satisfy them, the burden being on the respondent to show that the less favourable treatment was not on the grounds of sex. "
A further rider to the said guidelines has been given in the decision of the EAT (Judge McMullen QC) in the case of Chamberlain Solicitors v Emokpae [2004] IRLR 592 EAT, where Judge McMullen QC takes the view that Guideline 10 in the Barton case should be adjusted to read as follows:-
"To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was not significantly influenced, as defined in Nagarajan v London Regional Transport [1999] IRLR 572, by grounds of sex ."
He also makes it clear that "cogent evidence" as referred to in Guideline 12 in the Barton case means forceful and persuasive.
The Tribunal is satisfied, in the absence of any other relevant authority, and since the terms of Article 38A are similar to those seen in Section 63A of the Sex Discrimination Act 1975, that in order to determine this complaint of unlawful discrimination on the grounds of religious belief and/or political opinion, it should follow the guidance set out in the legal authorities referred to above, where the amendment to the legislation on the burden on proof has been given detailed analysis. In doing so, the Tribunal is conscious that the guidance set out is only guidance which requires to be applied to the particular facts of each case. The general principles applicable to cases of direct discrimination were helpfully set out in the decision of the EAT in the case of Law Society v Bahl [2003] IRLR 640. This case did not require to consider the alteration to the burden of proof, as referred to above. However the Tribunal considers that the principles remain good law, albeit require to be followed in the light of the Barton guidance. The principles summarised by Elias J are as follows:-
(i) The onus lies on the claimant to show discrimination in accordance with the normal standard of proof.
(ii) Discrimination need not be conscious; and may be direct discrimination as a result of inbuilt and unrecognised prejudice of which the person discriminating is unaware.
(iii) The discriminatory reason need not be the sole or even the principle reason for the discrimination – it is enough that it is a contributing cause in the sense of being 'a significant influence'.
(iv) In determining whether there has been direct discrimination it is necessary in all save the most obvious cases for the Tribunal to discover what was in the mind of the alleged discriminator. This will generally involve the Tribunal in making appropriate inferences from the primary facts which it finds.
(v) In deciding whether there had been discrimination, the Tribunal must consider the totality of the facts.
(vi) The need to identify 'detriment' is in addition to the need to finding less favourable treatment on the prohibited ground, although in many cases the detriment will be obvious. Some elements of the discriminator's conduct, though discriminatory, may give rise to disadvantages too minor or insignificant to count as detriment. The test for detriment is whether the treatment was of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment (per Lord Hope in Shamoon v Chief Constable of the RUC [2003] IRLR 285) not all detriments are indicative of discrimination.
(vii) The Tribunal may not make findings of direct discrimination save in respect of matters found in the originating application. A Tribunal should not extend the range of complaints of its own motion.
The said principles have been approved in the recent decision of the Court of Appeal of the case of Bahl v The Law Society [2004] IRLR 799. In particular, the Court of Appeal emphasised that unreasonable treatment of the complainant can not in itself lead to an inference of discrimination, even though there is nothing else to explain it. Unreasonable treatment is not sufficient in itself to raise a prima facie case requiring an answer.
(a) The applicant in the years immediately preceding this recruitment exercise had been a Station Supervisor stationed outside Belfast and then a Relief Station Supervisor in Belfast, carrying out, in essence, the same duties as the post, the subject matter of these proceedings; whereas Mr Ferguson, in the same period, had carried out the role of Customer Services Co-Ordinator on the Cross Border trains. The applicant could be said, in such circumstances, to have had greater experience than Mr Ferguson.
(b) In the course of the interview, the interview panel did not assess under the assessment record form, as a separate category, 'education attainment'. Both Mr Ferguson and the applicant had a formal qualification in operational procedures (passed driver/instructor/signal person), which was an essential criterion for the post. However, the applicant unlike Mr Ferguson, also had a recognised supervisory qualification (an alternative to the above essential criterion) and a certificate in foundation studies from the University of Ulster. The Tribunal, as appears from Paragraph 3.22 of this decision was satisfied that if 'education attainments' had been assessed as a separate category under the interview assessment record the applicant would have obtained marks which would not have been obtained by Mr Ferguson.
(c) The interview panel in the marking of special aptitudes adopted a method of weighting, marking the category out of 13 rather than the standard mark of 10 set out in the interview assessment record. As set out in Paragraph 3.24 of this decision the Tribunal, having been satisfied that the mark given to the applicant by both Mr Parr and Mr Shannon was out of 13. However the Tribunal, as set out in Paragraph 3.32 of this decision, recognised that the failure of the applicant to answer as well as Mr Ferguson was reflected in the marks given by the panel – which was of greater significance due to the weighting.
(d) As appears from Paragraph 3.30 of the decision the Tribunal noted the difference in approach taken by each of the panel members to the marking of the candidates.
(e) As appears from Paragraph 3.30 of the decision the Tribunal was satisfied that in assessing the category of job experience (interview assessment record)/attainments (the Parr document) the interview panel had concluded at the time of the interview, and were justified in so doing, that both the applicant and Mr Ferguson satisfied the desirable criteria of 'previous supervisory experience, preferably two years'. However, the Tribunal had also found as a fact that at the time of short listing, Mr Parr had indicated on the short listing form that Mr Ferguson did not have such experience.
Mr Parr is a Protestant like the applicant. In the case of Chief Constable of the RUC v A [2000] N.I. 261 at Page 277 Carswell L.C.J. (as he then was) warned of the dangers of a finding of unlawful discrimination by a person against a co-religionist.
In considering the explanations of the respondent to the matters addressed below, the Tribunal is particularly conscious of its rejection of the applicant's contention as regard to the reduction of the religious imbalance of the workforce of the supervisory staff at Central Station but also the absence of any evidence or compelling reason to support the view that Mr Parr would unlawfully discriminate against his co-religionist, the applicant. As set out in this decision, the primary focus of the applicant's complaint was against Mr Parr not Mr Shannon, not least in regard to his contention in relation to the said reduction of the religious imbalance of the supervisory staff at Central Station.
Chairman:
Date and place of hearing: 23 June 2003, 25 June 2003
17 October 2003, 20 October 2003, 21 October 2003, 22 October 2003, 23 October 2003, 24 October 2003
14 November 2003,
6 January 2004, 7 January 2004, 8 January 2004, 9 January 2004, 3 February 2004
18 March 2004, 19 March 2004
Belfast
Date decision recorded in register and issued to parties:
