THE INDUSTRIAL TRIBUNALS

CASE REF:	37/05

CLAIMANT:			Breedagh Hughes

RESPONDENT:		British Medical Association

DECISION
The unanimous decision of the tribunal is that the claimant was not treated less favourably on the grounds of her gender than the successful candidate for the job with the British Medical Association and hence was not discriminated against on the grounds of her gender by the failure to appoint her to this position.

Constitution of Tribunal:
Chairman:		Ms A Crooke
Members:		Ms E Kennedy
			Ms J Macauley

Appearances:
The claimant appeared in person and represented herself.
The respondent was represented by Ms A Finnegan, Barrister-at-Law, instructed by J Blair Employment Law Solicitors.

Sources of evidence

The tribunal heard evidence from the claimant on her own behalf and from Ms Penny Holloway, Director of Conciliation with the Labour Relations Agency.  The tribunal heard evidence from Mr Brian Best who is the Northern Ireland Regional Secretary of the British Medical Association and Mr Kevin McMahon who is the Director of Resources with British Medical Association.  Additionally, the tribunal had a bundle of agreed documentation before it.

Factual issues

(a)	Did the claimant’s knowledge and skills as relevant to the post of Deputy Northern Ireland Secretary of the British Medical Association exceed those of the successful candidate?

(b)	Did the claimant’s experience as relevant to the post of Deputy Northern Ireland Secretary of the British Medical Association exceed that of the successful candidate?

(c)	Was the claimant asked a question during her interview which would not have been asked of a male candidate?

Legal issue

The legal issue before the tribunal was whether or not the claimant was treated less favourably than the successful candidate on the grounds of her gender and hence discriminated against on the grounds of her gender?

The relevant law

The relevant law is the:-

Sex Discrimination (Northern Ireland) Order 1976; and

Sex Discrimination (Burden of Proof) (Northern Ireland)Regulations 2003.

Facts found

1.	The claimant was Northern Ireland Board Secretary of the Royal College of Midwives.

2.	She applied for the post of Deputy Northern Ireland Secretary with the British Medical Association.

3.	Eight men and four women applied for this post.

4.	The claimant was one of eight people short-listed and consequently interviewed on 29 September 2004.  Ultimately, three females and four males were interviewed.

5.	The application forms were assessed for short-listing by Mr Brian Best by himself and thereafter the candidates for interview were treated as competing on a level playing field.

6.	The interview panel was comprised of:-

Mr Best; and

Mr McMahon.

They had mapped out a list of questions to be asked and topics they expected to be covered in the answers.

7.	The claimant was not appointed to the position and having later found out that the successful candidate was male and not known in the trade union and other circles in which she moved, lodged her claim with the industrial tribunal that she had been discriminated against as a result of the failure of the respondent to appoint her to the post and allegedly that the respondent asked her questions during the interview which would not have been asked of a male candidate.  

What was the panel looking for in this interview?
(The first two factual issues have been considered together by the tribunal)

8.	The panel wanted the interviewees to speak about performance management 
experience; policy strategy experience; employment law knowledge; NHS knowledge; budgetary experience; Northern Ireland political knowledge; and to demonstrate communication skills.  

While Mr Best considered that the claimant’s current post gave her good experience in strategic management and related topics, he considered that her experience was confined to one organisation and one area of service.  He found that she had an understanding of and working knowledge of employment law with a high degree of involvement in industrial relations networks in Northern Ireland and that she was knowledgeable of membership organisation issues.  He noted that she has three to four staff in her current job and additional corporate responsibilities on the Royal College of Midwives Executive.  In connection with finance, he simply noted ‘yes’, but in relation to devolution indicated that she had a wide range of contacts and involvement, was an active lobbyist had a high media profile and knowledge of health and personal social services and political issues.  

Mr McMahon noted that she had a good knowledge of the National Health Service in Northern Ireland, but commented on the narrow perspective flowing mostly from the nursing/midwifery point of view.  He queried her understanding of the broader issues.  He accepted that there was an employment law knowledge but considered that the claimant demonstrated little evidence of experience as an employer as opposed to being a trade union representative.  He accepted that she had good political knowledge but considered that she demonstrated little performance management experience and no experience or understanding of linking pay to performance.  He noted that she had few staff responsibilities and coped with small budgets.  He particularly noted that she was keen on media work.  

In Mr Best’s notes on his interview with the successful applicant, he considered that he demonstrated an extensive experience of strategic management across a number of previous employers with a good in-depth understanding of issues and processes and the need for transparency, openness and fairness.  He accepted that Mr Lamb, the successful candidate, had an awareness of employment law legislation and processes with a direct representational role arising from his involvement with NIPSA and some experience of negotiations from both the management and trade union sides.  He concluded in connection with employment law that he had given a variety of advice and guidance.  Mr Lamb was found to have managed different levels of numbers of staff across a number of different jobs and employers.  He also had a variety of budget responsibilities over a period of employment.  He had experience of devolved government as a result of his role in the Equality Commission and contacts with local politicians/government officials.  Finally, it was considered that he had a key public affairs role in his current post.  

Mr McMahon considered that Mr Lamb was strong on policy, had a good knowledge of NHS in Northern Ireland, and was strong on the problems of GPs and fund holding.  He accepted that he had a good knowledge of employment law but considered he could easily develop this further.  Mr McMahon held that Mr Lamb had good political knowledge and a good understanding and experience of performance management with a particular understanding of the performance/pay link through the Civil Service model.  In Mr McMahon’s opinion he was a strong manager with budget experience and all round management skills.

It is important to note that the panel did not carry out any comparative exercise based on the application form but assessed the candidates for interview on their interview answers.  

It is also important to note that the respondent had carried out a ‘Job Families’ exercise in 2004.  The whole point of the exercise was to sweep away some structures that had outgrown themselves.  The people in the regions, for example, were not getting a fair deal in respect of recognition and reward.  In effect a system of performance management had been introduced and implemented by the respondent.  This was the biggest single change that had ever happened in the respondent organisation.  Therefore the issue of performance management was highly relevant to the respondent’s organisation.  Mr McMahon wanted to hear about other people’s experience in running such a scheme.  He wanted to know about the problems.  He wanted to know about the successes.  Mr Lamb showed a hands-on understanding of a performance management system on the Civil Service model.  He had had experience of measuring performance and knew the problems that could arise and also the rewards.  He was the only candidate who mentioned behaviours.  The actual term is behavioural competencies.  This was a matter of importance to the respondent and at the time of hearing the tribunal was told that it was developing this area of the scheme more fully.  Mr Lamb had a five point rating system and this also mirrored the scheme of the respondent.  Mr Lamb also demonstrated a sympathy with the system.  He appeared comfortable with working within the system.  Mr Lamb understood the problems caused by small financial increases to reward successes.  This was also attractive to the respondent because they had never been in the position of being able to award substantial financial bonuses.  In short, Mr Lamb impressed the panel.  

Mr McMahon did not have to probe to get the answers that he was looking for, they came almost automatically.  

By contrast, the claimant performed very differently in this area of the interview.  She gave an explanation of how to set up a scheme.  This was not relevant to the respondent.  Their scheme was up and running and they wanted to bring in experience to carry on and take the scheme forward.  The claimant did not demonstrate this in her evidence before the tribunal and indeed talked about her experience in writing appraisals, both in the interview and before the tribunal, for 56 staff when she was a Midwifery Sister in the Neonatal Unit, seven years before the interview in question.  

In this area we find that the knowledge, skills and experience of Mr Lamb exceeded that of the claimant.  The claimant contended that Mr McMahon ignored what she said and was continually bringing her back to the issue of performance-related pay.  She said that that left her with the impression that as a woman, she could not cope with the problems of performance-related pay.  Mr McMahon did keep bringing the claimant back to the issue of performance in particular.  This was because he was not getting the answers for which he was searching and wished to give the claimant other opportunities to demonstrate the knowledge, skills and experience that he was looking for.  Eventually, Mr McMahon concluded that they simply did not exist.  The tribunal finds that this behaviour on the part of Mr McMahon was in no way related to gender.  He purely wished to find the experience and competency that the post required.  

Mr Best considered that the claimant’s experience in strategic management was confined to one organisation and one area of service, but Mr Lamb had extensive strategic experience across a number of his previous employers over a longer time.  Mr Lamb also demonstrated a good in-depth understanding of issues and processes and the need for transparency, openness and fairness.

In the area of budget experience, the claimant also scored less favourably than Mr Lamb.  Her experience was recognised by Mr Best but he considered that Mr Lamb had greater experience in the area in that he had a broad base of experience through a variety of previous employers and a variety of types of budgetary responsibilities.  Account was also taken of the time Mr Lamb worked as an Auditor in the Health Service.  Although the claimant considered as she was totally fiscally responsible for the Royal College of Midwives in Northern Ireland and this should have been rated more highly, the respondent placed emphasis on the broad based nature of the experience of Mr Lamb and also the fact that he had argued for and had created certain of his budgets in his past employment.  

In his past employment he had been Acting Head of Policy Services in Belfast City Council and as such had responsibility for strategy and policy, management of staff, budget and the Council’s facilities.

Again, Mr Lamb was slightly more highly rated under the heading of Northern Ireland Political Knowledge.  It was recognised that Mr Lamb had experience of devolved government in his role with the Equality Commission which was a key public affairs role and as such in the Equality Commission and also in previous employment he had contact with local politicians and government officials.  

The claimant by contrast had experience with a wide range of contacts and involvement and was also an active lobbyist.  She had a high media profile and a knowledge of health and personal social services and political issues.  She contended that this would be of assistance in the role as she would understand the nature of the role that her direct reports/subordinates would be undertaking.  Whilst this was of some relevance, it was not crucial as dedicated staff would be performing those functions.  There was very little difference in the level of communication skills demonstrated by Mr Lamb and the claimant, but in assessing the performance overall of each of the relevant candidates, both claimant and comparator, Mr McMahon contended that the claimant interviewed as a trade union officer while Mr Lamb interviewed as a manager.  The tribunal finds that whilst the skills, knowledge and experience of the claimant were high, she did not demonstrate the level of understanding and an affinity with the requirements of a senior management job that was demonstrated by Mr Lamb and this was why Mr Lamb was appointed.  

Was the claimant asked a question during interview which would not have been asked of a male candidate?

9.	The question that both the claimant and her witness, Ms Holloway contended was 
asked was how they would feel about working in a male dominated environment.  The tribunal does not accept that such a question was asked.  On the balance of probabilities the tribunal considers it more likely than not that in the heat of the interview situation both female candidates may very well have misunderstood the nature of the question asked.  Mr McMahon asked all candidates how they would cope with dealing with the medical profession being assertive.  That is not a gender issue.  Given the background explained by both Mr Best and Mr McMahon, to gender balance in the organisation workforce as a whole, the tribunal considers it is more likely than not that Mr McMahon would simply have no cause to ask a question about whether a female could deal with working in a male dominated environment.  Given that the workforce gender balance in the organisation is 66% female and 34% male across the United Kingdom and within the Northern Ireland Office specifically 80% female and 20% male, the tribunal does not consider that it would be in any way logical to describe the organisation of the respondent as a male dominated environment.  Even if we take the claimant’s case at its height that this referred to the membership rather than the workforce, the tribunal still considers that this is less likely than not on the balance of probabilities to be case given that the claimant was applying for a job in which she would manage the performance of staff and not work with the membership body.  Again the tribunal considers that it is likely that the claimant misunderstood the basis of the job.

Given also that Mr McMahon was involved in the selection of 11 key posts in the period from 2002 to January 2007 and every person appointed to the 11 posts was a woman, we consider it to be unlikely on the balance of probabilities that he would have any gender discrimination operating in his mind or indeed come from such a background.  Finally, the tribunal has noted that Mr McMahon is in charge of a department staffed entirely by females which he appointed.  

Analysis of evidence

In general the tribunal preferred the evidence given by Mr Best and Mr McMahon as it was consistent between them, consistent with their witness statements, logical and given in an open manner.  By comparison, the evidence of the claimant and her witness, Miss Holloway, was based on impression and there was in the case of Miss Holloway inconsistency between her statement and her actual evidence.  

Conclusions

Was the claimant treated less favourably than the successful candidate on the grounds of her gender?

We do not consider that the claimant was treated less favourably than the successful candidate on the grounds of her gender.  Indeed it could be argued that the claimant had been treated more favourably in the short-listing process than other candidates.  The criteria for the post stipulated that the candidate will be the Graduate or holder of a recognised business/management qualification.  The claimant holds a BA (Honours) in Social Sciences and a Masters Degree in Human Rights Law.  By contrast, Mr Lamb holds a BA in Business Studies, has a Post-graduate Diploma in Management and a Masters Degree in Business Administration, together with Diplomas in Marketing and Finance.  Mr Lamb however did not receive the benefit of any extra marks in view of his business qualifications.  It could be argued therefore that the claimant did not meet the short-listing criteria, although, this was not a point pursued by the respondent in the tribunal hearing.

The claimant contended that the respondent had breached the Code of Practice of the Equal Opportunities Commission in number of a respects and these are as follows:-

	Clause 4.4	-	Positive Action Advertising

	Clause 4.5	-	Positive Action Encouragement

	Clause 6.4	-	Short-listing

	Clause 8.1	-	The taking up of references

	Clause 9.1	-	Training

	Clause 9.2	-	Gender balance on panels

	Clause 9.4	-	The use of a Standardised Scoring System

	Clause 9.6	-	The types of questions that should not be asked

1.	The tribunal accepts that the respondent did not follow the Code in a number of respects.  No positive action advertising or encouragement was undertaken.  

2.	The respondent contended that it was not necessary as there was no           under-representation in the grade of the job which the claimant was applying for.

3.	The respondent’s short-listing of the candidates was done by Mr Best alone and that is a breach of the Code.  However we have also said that the claimant was given the benefit of the doubt in relation to short-listing.  

4.	The tribunal also noted that Mr McMahon validated the short-listing after he returned from his holiday.  

5.	The references of a successful candidate were only taken up orally.  

6.	No standardised scoring system was used by both interviewers.  Mr McMahon used an aide memoir score sheet, but Mr Best chose not to.  They both relied on their opinion and judgement in making the appointment.  

7.	The tribunal has already accepted that the questions allegedly asked of Miss Holloway and the claimant were not asked.

Finally, the complaint in respect of training was withdrawn by the claimant in her summing up as she had not laid a sufficient evidential foundation for the points she was making.

In recruitment and selection of candidates for appointment, it is good practice to adhere to Codes of Practice.  The Code of Practice was not adhered to by the respondent and the tribunal has noted this, but the tribunal also notes that the Code makes recommendations and does not set down laws.  By itself, the tribunal does not consider that a breach of provisions of the Code of Practice of the EOC does not constitute a fact from which discrimination can be inferred.  If it was necessary to go to the next stage of the Igen test, and find that the burden of proof had shifted, the tribunal would have found that an explanation for that treatment had been given which was in no way related to discrimination.  For all these reasons, we consider that the claimant was not discriminated against on the ground of her gender and dismiss her claim.

Chairman:

Date and place of hearing:	5 – 9 March 2007, Belfast

Date decision recorded in register and issued to parties: