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	Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> McCusker v NI Housing Executive [2005] NIFET 328_04 (04 February 2005) URL: http://www.bailii.org/nie/cases/NIFET/2005/328_04.html Cite as: [2005] NIFET 328_04, [2005] NIFET 328_4

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FAIR EMPLOYMENT TRIBUNAL

Case Ref No: 328/04FET

Applicant: Oscar McCusker

Respondent: N I Housing Executive

DECISION ON A PRE-HEARING REVIEW

Pursuant to Rule 7(7)(a) of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2004, the tribunal determines the applicant's complaint has no reasonable prospect of success. The tribunal orders the applicant to pay a deposit of £300.00 as a condition of his being permitted to continue to participate in these proceedings.

Appearances:

The applicant did not appear and was not represented.

The respondent was represented by Ms F Cassidy, Jones & Cassidy, Solicitors.

1. By his originating application, presented on 16 July 2004, the applicant stated that he was earning £20,269 per annum. Moreover, he alleged that he had been discriminated against on ground of his religious belief on 8 April 2004 and that he had first learned of this alleged discrimination on 10 April 2004. At section 9 of the originating application, the applicant claimed:

On 10.4.04 I received a letter dated 8.4.04 advising me that I had not been short listed for interview for the post of Project Manager level 6 – Warm Homes

Schemes. I believe I met the short listing criteria and was discriminated against due to religious belief.

2. The respondent presented a notice of appearance on 24 August 2004, whereby it denied any such religious discrimination, and stated at section 4:

The respondent denies the applicant's allegations of discrimination on grounds of religious belief in their entirety. The applicant was not short listed for interview because he failed to meet the short listing criteria. 9 candidates applied for the position and monitoring information indicates that 7 of the Applicants were Catholic and 2 not known. The panel short listed 4 candidates for interview of whom 3 were Catholic and 1 not known. The successful candidate was a male Catholic. As the monitoring information also indicates that the Applicant is from the Roman Catholic Community, the respondent believes that the Applicant's allegation of religious discrimination has no reasonable prospect of success. The respondent therefore seeks a Pre-Hearing Review.

3. The matter was thus listed before us by way of a Pre-Hearing review for a determination of whether or not the applicant's case has a reasonable prospect of success, pursuant Rule 7(4) of Schedule 1 to the Fair Employment Tribunal (Rules of Procedure) Regulations (NI) 2004 ["the 2004 Rules"]. The matter was listed for 10am on 4 February 2004. The tribunal did not sit until 10.05am, and made every effort to ascertain if the applicant was in the building of the Office of the Industrial Tribunal and the Fair Employment Tribunals. Having ascertained that the applicant made no appearance, the tribunal commenced at 10.05am.
4. Before us, Ms Cassidy submitted that the applicant's religious belief formed no part of the fact that he was not short listed for the post of Project Manager Level 6 – Warm Homes Scheme. Ms Cassidy submitted there were nine applicants for this post; 7 Catholic: 2 not known, according the fair employment monitoring information supplied with each application. Of these 9 applicants, 4 were short listed; 3 Catholic and 1 not known. The successful candidate (a Mr Cassidy) was a Catholic man. Ms Cassidy submitted the applicant could not therefore establish a prima facie case of religious discrimination. Accordingly, Ms Cassidy sought a deposit of £300 from the applicant as a pre-condition to being permitted to continue with his claim before the Fair Employment Tribunal. Ms Cassidy submitted the applicant is still employed with the respondent, earning £22,000 per annum.

The Decision of the Fair Employment Tribunal on a Pre-Hearing Review:

5. Having considered the originating application, notice of appearance, and the submissions of Ms Cassidy, the tribunal unanimously determines as follows:

(a) Pursuant to Article 3(2) of the Fair Employment & Treatment (NI) Order 1998 {as amended} ["the 1998 Order"], for the applicant to have a reasonable prospect of success in his complaint, he is required to show that the respondent treated him less favourably (because of his religious belief) than he treats or would treat other persons. Therefore, the applicant is required to establish before us a real or hypothetical comparator who was treated more favourably than he was in circumstances directly comparable to that of the applicant.

(b) Other than his originating application, the applicant has not laid before us any submission that would persuade the tribunal that he can meet the comparative analysis required by Article 3 of the 1998 Order.

(c) The tribunal accepts the submissions of Ms Cassidy when she states that there were nine applicants for this post; 7 Catholic: 2 not known. Of these 9 applicants, 4 were short listed; 3 Catholic and 1 not known. The successful candidate was a Catholic man. The fact that the preponderance of short listed candidates were Catholic, and that the successful candidate was a Catholic man persuades the tribunal to the determination that the applicant has failed to establish how he could prove that a real or hypothetical comparator was treated more favourably than he was, pursuant to Article 3 of the 1998 Order. Accordingly, the tribunal determines that the applicant's case has no reasonable prospect of success.

(d) Mindful of its obligation to ascertain the ability of the applicant to pay the deposit ordered on foot of this determination, pursuant to Rule 7(5) of Schedule 1 to the 2004 Rules, we have had regard to the applicant's current salary and determine that the applicant should lodge a deposit of £300.00 as a condition of being permitted to continue to conduct these proceedings.

(e) By Rule 7(7) (a) of Schedule 1 to the 2004 Rules, if the applicant has not paid the deposit of £300.00 within 21 days of the day on which this Decision is sent to him, the tribunal shall strike out the originating application. Pursuant to Rule 7(7)(b) of the 2004 Rules, the tribunal has a discretion to extend the time period (the extension not exceeding 14 days) if the applicant makes representations within the period of 21 days from the day on which this Decision is sent to him.

(f) Pursuant to Rule 12(7) of Schedule 1 to the 2004 Rules, if the applicant persists in conducting this complaint, and the Fair Employment Tribunal (on hearing the substantive complaint) finds against him, the applicant may lose his deposit and may also have an award of costs made against him.

(g) No further or other Order is made.

Chairman:

Date and Place of Hearing: 4 February 2005, Belfast

Date decision recorded in register and issued to parties: