THE INDUSTRIAL TRIBUNALS 

CASE REF:	54/02

APPLICANT:	David Stewart

RESPONDENT:	National Australia Europe Group Limited

DECISION
The unanimous decision of the tribunal is that the applicant was discriminated against by the respondent and this discrimination was contrary to the provisions of the Sex Discrimination (Northern Ireland) Order 1976.  The tribunal awards the applicant the sum of £11,000 for injury to feelings and the sum of £1,355 for interest on this sum, a total of £12,355. 

Appearances:

The applicant was represented by Ms S Bradley, Barrister-at-Law, instructed by Murphys, Solicitors.
The respondent was represented by Mr F O’Reilly, Barrister-at-Law, instructed by Jones & Cassidy, Solicitors.  

1.	The applicant had been employed from 1973 to the present time and in September 2001 he was a Grade 7 manager with the title of Securities Realisation/Litigation Manager.  It was common case that he had received excellent annual reports.  In August 2001 a vacancy arose for the position of an Asset Structuring Manager (Exits).  It was an internal advertisement and the applicant applied along with eleven others for the post.  One applicant withdrew, three failed to be shortlisted and eight were interviewed.  There were six male candidates and two female candidates.  

2.	The shortlisting was carried out by David Tate, Head of Assets Structuring, in Belfast.  Mr Alexander, the applicant’s line manager who interviewed with him, was on holiday at the time of shortlisting.  The interviews were carried out in September 2001.  Each candidate was allotted a time slot of an hour and a half.  The two interviewers spent approximately one hour on the questions asked and the extra time was for scoring each candidate after the interview.  The applicant was unsuccessful in his application and the post was awarded to Clare Cooper who was female and a Grade 6 manager in the Corporate Business Centre.  

3.	The tribunal accepted as fact that Mr Tate as Head of the Asset Structuring Department had obtained clearance for three posts in his department, one of which was the post in question.  He drew up the advertisement for the job and as there were two other posts as well he conducted twenty-four interviews within a three week period.  He asked Paul Alexander to do the draft questions for this interview.  When he returned from holiday he added some questions and they were agreed between the interviewers.  Counsel for the applicant submitted that the respondent’s failure to have a personal specification available at the time of advertising the position amounted to discrimination.  The tribunal does not accept that as such because the applicant suffered no detriment and it was seen that the personal specification reflected the essential criteria of the job advertisement.  However, as will be detailed later in this decision it was an example of correct procedures not being followed in relation to the job vacancy.  The tribunal accepted Mr Tate’s evidence that he asked the Human Resources Department for help with these three interviews and they declined to assist him.  The tribunal accepted that the human resources function for this department was in Glasgow and although there was a human resources function for the rest of the group in Belfast, he was not able to obtain any assistance from them.  Both Mr Tate and Mr Alexander had gone on a one day training course which dealt with equality issues as well as aspects of interviewing and training.  It should be noted at this stage that the respondent did acknowledge failures in their interview procedures but their case was that despite these procedural failures the respondent did not discriminate against the applicant.

4.	The tribunal considered the evidence of the parties’ witnesses over a period of four days and were satisfied that the applicant had proved that he was certainly as well qualified and had longer experience in terms of management in the bank.  We say this because he was a Grade 7 manager and one level above that of the successful candidate.  He had a wide experience of banking and had been in post as a Grade 7 manager in 1998.  We accepted his evidence that although this job was a sideways transfer it offered a better route for promotion to Grade 8 than the job which he held.  He signified his intention to compete for the post to Paul Alexander before the interview.  

5.	There was a conflict as to what was said by Mr Alexander.  The applicant stated that Paul Alexander did not wish him to move on as it would cause difficulties for him and said so.  Mr Alexander stated that he said that he would have to back-fill the applicant’s post if he were to be successful and he would have to get someone to fill his post before he could release him.  The tribunal does not find that either party was lying in relation to the remarks because the actual post itself was not filled for a period of three months.  The successful candidate commenced her new position on 1 or 2 January 2002.  

6.	The respondent did not challenge the evidence given by the applicant in relation to how he was informed that he had been unsuccessful.  It appeared that one candidate, John McGrath, had gone to Mr Tate to ask if he had been successful at the interview because he was going on holiday the next day.  Mr Tate made a mistake as to which interview he was talking about and said that Clare Cooper had been the successful candidate.  He realised his mistake and told Mr McGrath to keep quiet about it.  However, he had spoken to Human Resources who said that they had posted out letters to the candidates but the applicant did not receive the letter on Friday morning whereas the successful candidate did.  It became knowledge within the department.  Mr Tate saw the applicant talking to two colleagues and he realised what it was about.  The applicant went out for lunch.  Mr Tate stated that he hoped to speak to him when he came back but he left an e-mail for him on Friday afternoon and stated to the tribunal he was not able to wait any longer for the applicant to come back.

7.	The applicant was most distressed, both by his failure to be selected and the way in which he heard.  It was common case that he left work and was on sick leave for three months.  He stated to the tribunal that he has been aware of this failure to be appointed for nearly three years and he gave evidence about his morale being low and the manner in which he was told added to his distress.

8.	He raised a grievance with the bank and as a result Mrs Noreen Wright was appointed by the bank to investigate the appointment and procedures.  She interviewed four people, the applicant, David Tate, Paul Alexander and Paula Howard (People and Culture Adviser).  She produced a report.  It was entitled ‘formal investigation report’.  She acknowledged the failures to comply with procedures of the bank and she made several observations in relation to the various witnesses.  She notes in her conclusion “there are a number of procedural irregularities which I have referred to in the body of the report.  I do not believe this has impacted on the outcome of the interview process on this occasion.  I cannot stress enough however the importance of ensuring that procedures are up to date and that they are followed.  Tribunals are known to have drawn adverse inferences where this is not the case.  HR staff and anyone involved in the process should be fully conversant with the relevant procedure”.  She also notes in her conclusion “two senior members of staff did not record their scores at this set of interviews in accordance with the procedures.  Neither realised this was the case.  They have used such a system at other interviews where there may have been an HR present.  No one seems to have picked up on this irregularity”.  Her conclusion was that she found no evidence to suggest that the applicant was treated less favourably or any differently to Clare Cooper in relation to the appointment.  The applicant asked to see a copy of this report and this was refused.   He was told that there was no further appeal and basically that was the end of the line.  He had, by this stage, submitted an originating application to the tribunal and it was only in the course of interlocutory proceedings that he was supplied with a copy of Ms Wright’s report.  The applicant produced a synopsis which we have attached and it contains the written comments recorded by each of the interviewers in relation to the questions, the overall mark for each of the candidates and then the comments they gave to Ms Wright when she was questioning them some three months after the interview took place.   The tribunal also had the original marking sheets for the candidates.  The tribunal records that the marks were made in pencil, both interviewers said they were agreed marks for each candidate and the tribunal saw that there are changes for some of the agreed marks.   

9.	The tribunal saw a copy of the job vacancy which was the basis for the internal selection.  A copy of this is annexed to the decision.  The important part of the vacancy notice stresses that applicants must have a minimum of three years’ lending experience.  The successful candidate will most likely be an experienced banker and – or have acquired key credit skills from a business/professional background.  

	Essential

•	A sound understanding of the bank customer relationship from a legal/contractual perspective.
•	Strong interpersonal skills.
•	Strong oral and written communication skills.
•	Credit management (financial analysis risk assessment and sound knowledge of group lending policy).
•	Strong negotiating skills.

Desirable

•	Managing customers relationships.
•	Credit control/recovery.
•	Legal securities.

During cross examination Mr Alexander stressed the importance of PC useage for the bank.  Five marks were given for PC skills.  Similarly Mr Tate stressed that PC skills were essential for this job.  However, there is no mention whatsoever made of the necessity to have good PC skills for this job.  It does not come under the category of essential or desirable or feature anywhere in the job description and yet the interviewers weighted it with five marks which was one of the highest scoring categories.  In terms of discrimination both candidates scored the same score of four.  It cannot be shown by this mark that the applicant was treated less favourably than the successful candidate, but it is another example of not following proper procedures in relation to advertising the vacancy.   The tribunal found as fact that Mr Tate and Mr Alexander stressed the importance of business lending and credited the successful candidate with more relevant recent experience than the applicant.  The two interviewers said at the hearing that they focused on the successful candidate’s business lending experience yet when the tribunal considered the vacancy advertised the focus was not specifically on business lending experience.  On the one hand, the interviewers stated that the successful candidate had managed portfolios of considerable size when she worked for the corporate business centre and yet the job description mentioned responsibility “for managing a lending portfolio which is over £15,000 and under £100,000”.  These would not be categorised as large business accounts and in fact reflect the type of accounts which the applicant had managed in his various posts.   Both interviewers gave the successful candidate credit for her experience in large business banking and yet the tribunal did not see this highlighted in the advertised vacancy.  Therefore, we question why the two interviewers concentrated on that aspect of the successful candidate’s answers rather than focus on the job as described.  

10.	Another fact which the tribunal found significant was that neither Mr Tate nor Mr Alexander had read or had knowledge of the bank’s recruitment and selection policy.  They were relying on a one day training course.  Mr Alexander stated to the tribunal that he scored individually on his sheet for each candidate and then after discussion, changed marks which were not agreed to bring them to an agreed mark.  Whilst he said this at the hearing, it was pointed out to him that he had not said that to Mrs Noreen Wright at the independent interviews which took place some three months after the selection.  The tribunal accepted that he had an opportunity to correct Mrs Wright’s report but he did not do so.  It is significant that at the time she interviewed him, she recorded that he said each interviewer had an individual score in mind but did not record them.  He went further and said that he used this system before “but has also interviewed when the individual scores are set out.  Can’t recall if training by Saville & Holdsworth covers detail of scoring other than you come up with a common score”.  The tribunal had the opportunity to assess the credibility of the two interviewers in relation to the scoring and had the altered final sheets in front of them when coming to the tribunal’s decision.  We do not accept that Mr Alexander did score individually for the candidates, although there were agreed marks for the candidates.  This in itself is a breach of the bank’s recruitment procedure but in some occasions it may suffice if the interviewers can explain fully the marks that were given.  Further, Mr Alexander stated that they only changed the final score if they did not reach a consensus.  This was not borne out by the marking sheets which showed on two occasions the “agreed” score was changed to benefit the successful candidate.   In this particular case we are not satisfied that the respondent bank or interviewers have fully explained some of the marks given.   

11.	The applicant gave evidence of sitting with Mr Alexander on an interview panel which included a girl called Debbie Peden as a candidate.  The applicant stated that Mr Alexander said to him he “wondered why should we bother.  We know who we would appoint anyway”.  The successful candidate was Debbie Peden.  Mr Alexander did not remember making this remark although he did agree that he and the applicant had been on an interview panel at one stage together.  In view of the credibility issue with some of Mr Alexander’s testimony, the tribunal finds it more likely than not that this was said.  We also bear in mind that if Mr Alexander was not familiar with the bank’s recruitment and selection policy, it was a comment that could have been made.   

12.	There was only one mark between the successful candidate and the applicant.  This was after an hour’s interview in which there were a substantial number of questions.  Many questions resulted in one half of a mark of difference between the candidates.  The tribunal considered the question relating to the extent in which the candidate had been required to deal with the bank’s internal and external legal/personal advisers.  The applicant received an agreed score of four out of six.  Mr Alexander, in answer to counsel for the applicant, stated that the applicant did give a full answer and he agreed with counsel that the applicant had given the model answer and yet there was only half a mark between them.  Mr Alexander could not explain this to the satisfaction of the tribunal.  Mr Tate stated that the applicant did not identify why he used advisers but he did agree with counsel that all those, both internal and external, were mentioned.  He thought there was only half a mark between them because “Clare dealt with the ‘why question’ i.e. why she used advisers whereas the applicant did not”.  When the tribunal looked at the question the phrase ‘why’ was not directly relevant because the question was “to what extent have you been required to deal with the bank’s internal and external legal professional advisers”.  Certainly in terms of notes recorded by the two interviewers, more was written for the applicant and the tribunal does accept that a difference of half a mark between them is significant, especially when one of the markers had changed the pencil score for the successful candidate to 3½.

13.	The tribunal also drew attention to the question which stated “tell us about an occasion when one of your decisions was challenged – what did you do?”  Both candidates got the same mark.  However, the tribunal notes that the successful candidate gave two examples and both interviewers scored her on the basis of two examples.  She was not asked to give two examples, she was asked to give one example.  That is what the applicant did.  The interviewers were satisfied with his answer on the one occasion that they had requested and yet they both drew attention to the fact that the successful candidate gave two examples.  This is an unfair method of giving credit to someone for a question that was not asked and has not been explained to the satisfaction of the tribunal.  

14.	Both parties called witnesses to substantiate what they saw was the role of the two jobs, namely that occupied by the applicant and the one for which he was applying.  The tribunal accepted that both these witnesses gave evidence in good faith but they did not advance the situation particularly for the tribunal because we were focusing on the answers given by the two interviewers in relation to how they scored the applicants at the time on the basis of the job vacancy which was advertised by the bank.  This seems to be where the problems have arisen.  The job vacancy does not focus on the aspects of the successful candidate’s business banking experience to the extent for which the interviewers gave her credit.  When the tribunal looked at this, with the background of lack of specialist training, lack of a third interviewer who was not a line manager within this department, then one sees the difficulties if one candidate is preferred to another with the attributes that are not necessarily for the job advertised.  

15	The tribunal referred itself to the case of Barton –v- Investec Securities Limited 2003 ICR page 1205 which sets out the situation in relation to burden of proof.  The tribunal also referred itself to the recent case of Chamberlain Solicitors and another –v- Emokpae 2004 593 IRLR.  in which Judge Mullan QC further refined aspects of the shifting burden of proof.  This tribunal is satisfied that the applicant has established from his evidence, application form and evidence at hearing that he was as well, if not better qualified for the position, than the successful candidate.  There is a difference of gender between the candidates.  Counsel for the applicant also submitted that this was a situation of reverse discrimination in that there were no female managers in this department and the bank was anxious to redress this position.  Both interviewers stated that they had never discussed this.  It does seem somewhat strange that this had not been discussed at any stage.  Mr Tate said it had never been mentioned by anyone in the bank to him and the tribunal is not satisfied that is a truthful answer.  

16.	In conclusion the tribunal is satisfied that the applicant was discriminated against on the grounds of his sex.  There does not have to be an intention of the part of the interviewers to treat him less favourably on the ground of his sex but the overall effect of their marking meant that he was less favourably treated than the successful candidate who was female.  The tribunal accepts that the applicant was very upset at not being selected.  He was a long standing bank employee who had always received excellent appraisals and he had a high expectation of being awarded this post.  As a result of not being awarded the post, the tribunal accepts the manner in which he heard of his failure contributed to a period of three months’ sick leave.  He is now back in the bank and working in the same department as the successful candidate.  The tribunal does not consider that this is a case in which a separate award should be made for aggravated damages.  We consider that the way that he was treated by Mr Tate in the imparting of the information regarding the successful candidate, did contribute to the injury to his feelings.  We consider that the applicant has demonstrated that his injury to feelings came within the top range of the middle band of damages as set out in Vento –v- Chief 

Commissioner of West Yorkshire Police 2003 ICR page 318.  The tribunal awards the applicant the sum of £11,000 by way of damages for injury to feelings and the sum of £1,355 by way of interest to this award.

____________________________________
M P PRICE
Vice President

Date and place of hearing: 17-20  August 2004, Belfast

Date decision recorded in register and issued to parties: