THE INDUSTRIAL TRIBUNALS

CASE REF:	17/09

CLAIMANT:				Mohamed Saad

RESPONDENT:			Queen’s University Belfast

DECISION
The unanimous decision of the tribunal is that the claimant was not discriminated against on the grounds of his race, nor was he victimised, contrary to the Race Relations (Northern Ireland) Order 1997. 

Constitution of Tribunal:
Chairman:		Mr P Kinney
Members:		Mrs N Wright
			Mr P McKenna

Appearances:

The claimant appeared and represented himself. 

The respondent was represented by Mr J Dunlop, Barrister-at-law, instructed by McGrigors Belfast LLP, Solicitors.

Issues

1.	The issues were agreed at the outset of the hearing as being those identified at the Case Management Discussion on 23 April 2009:-

(a)	Whether the claimant was treated less favourably on grounds of his race in comparison to the successful candidate for the post of research assistant with the respondent.

(b)	Whether the claimant was victimised contrary to the Race Relations (Northern Ireland) Order 1997 (‘RRO’) for carrying out a protected act, namely the presenting of a claim to the industrial tribunal.  

2.	The claimant’s claim is based on the assessment process for the post in question.  The claimant agreed that the successful candidate, Dr Douglas, should be treated as being British or Irish.  His claim for race discrimination is based on the allegation that he was less favourably treated because he was not British or Irish.  

Facts

3.	The claimant applied for the post of research assistant at the Polymer Processing Research Centre (PPRC) a part of the school of mechanical and aeronautical engineering of the respondent.  He was shortlisted for the post and interviewed on 25 of July 2008.  He was not successful.

4.	The claimant is of Egyptian national origin.  The successful candidate, Dr Douglas, is of British or Irish national origin. 

5.	The job description prepared for the post was for a research assistant grade AC1.  The job description is a largely generic document.  Candidates are told the type of work typically required of research staff at this level.  It was expressly stated that not all activities mentioned would necessarily be carried out, and some staff would carry out additional duties. 

6.	The post was graded AC1.  This is the basic or entry grade level for researchers.  It is comparable in some respects to a technician’s grade 6 and often technicians would apply for such research posts.  It is however on the academic salary scale.  The post requires the successful candidate to contribute mainly to research being conducted by other more senior staff members and to assist in the research activities going on in the school.  

7.	The interview panel comprised of Dr Millar, Professor Hornsby and Mrs Price.  At the short listing meeting on 24 June 2008 the panel agreed that the shortlisted candidates be asked to make a ten minute presentation at interview on the topic “My hands-on experience in the application of Thermal Mechanical and Rheological Analysis Techniques to Polymers.”  The panel concluded that hands-on experience was an important aspect of this post.  The agreed questions at interview were designed to test the hands-on experience of the candidates, and hands-on experience was weighted in the marking used by the panel. 

8.	The interviews were conducted on 25 July 2008.  On 24 July 2008, Professor Hornsby withdrew from the panel because of the illness of his wife.  Mrs Price consulted with Dr Millar and Mrs Short, the human resources representative.  Following Mrs Short’s advice, the panel determined to continue without Professor Hornsby.  In reaching this decision, the panel took into account the delays already incurred in the process, the lateness of the withdrawal, the expertise of Dr Millar and Mrs Price, the arrangements already made by the candidates and the difficulties in arranging interviews over the holiday period.  All the candidates were interviewed by Dr Millar and Mrs Price.  

9.	The claimant acknowledged the expertise of Dr Millar in this field.  She is a research fellow managing the characteristic facilities in PPRC.  Mrs Price is the business manager of the PPRC.  She is a chartered civil engineer and has extensive experience in industry prior to taking up her current post.  She is familiar with the types of analytical techniques and the equipment used in the PPRC.  She had used a number of the items of testing equipment in a process testing operational procedures in the centre. 

10.	At the time of the interviews, Dr Millar made contemporaneous notes.  She also completed comments on her interview rating forms on which each candidate’s marks were recorded by the panel members.  Mrs Price recorded comments on her rating forms.

11.	The panel marked against the five essential criteria for the post.  The first two, education and qualifications, and experience, were discussed and an agreed mark between the panel members given.  The other three criteria – knowledge, presentation, and personal qualities were marked individually.  The panel gave weighted marks to the criteria of experience.  They considered the content of each candidate’s presentation and the candidate’s answers to the questions.  

12.	The claimant’s presentation at interview consisted of 25 power point slides to which he added oral comments.  The claimant also referred to the contents of his CV and letter of application which contained more information regarding analytical techniques he was familiar with.  He informed the panel that he had trained others in the use of the techniques.  The presentation comprised mainly of two case studies carried out by the claimant.  They also included the analysis and interpretation of data as part of the case studies.  

13.	The panel concluded that the appropriate marks for the claimant on experience were 12 out of 20.  The panel considered that the claimant’s presentation was too theoretical and did not fully demonstrate the claimant’s hands-on experience in using the identified techniques.  He gave satisfactory evidence of experience in thermal techniques, limited evidence of experience in mechanical techniques, and no evidence of rheological techniques.  The panel was unsure from the presentation how much of the analysis the claimant himself had carried out.  There was no demonstration at all of rheological analytical experience apart from a reference made in two of the claimant’s slides.  In the first the claimant stated that he had:-

“some practical experience in the application of Rheological analysis techniques to polymers.” 

The second statement made by the claimant was in relation to a research proposal he had made to address:-

“the effect of ionising radiations on the thermal, optical, electrical, rheological and mechanical properties of single walled nanotubes …”

14.	The panel could not distil from this information the hands-on experience they had asked to be demonstrated.  Both panel members characterised the presentation as more akin to an academic paper presented at a conference.  It did not demonstrate for them the hands-on experience in the three identified areas.  

15.	The claimant was also, in common with the other candidates, asked questions relating to his hands-on experience.  Both Dr Millar and Mrs Price gave evidence of their clear recollection of one answer given by the claimant to a question relating to the use of a piece of equipment known as DSC.  They said that the claimant told the panel that he had asked a technician to carry out the testing for him.  Dr Millar in her evidence said that she recalled the comment clearly because she was surprised at the admission.  She recorded it at the time in her notes and again on her interview rating form.  Mrs Price also recalled the comment.  The claimant denied making such a comment.  

16.	There is a clear conflict of evidence at this point.  The tribunal, on the balance of probabilities, prefers the evidence of Dr Millar and Mrs Price.  In reaching this conclusion, the tribunal took into account the following matters:-

(a)	The clear and cogent evidence given by Dr Millar particularly, not just on this point, but in general in giving her evidence. 

(b)	The existence of the contemporaneous notes at interview and the comments on the interview rating sheet of Dr Millar.

(c)	The reason given by the panel members expressing their surprise at the claimant’s answer and the improbability of both giving false evidence in this point.  

(d)	The claimant in his evidence at one point characterised the issue as a misunderstanding. 

17.	The presentation by the successful candidate was based on seven slides.  Dr Douglas had taken each identified area of technique and spoken extensively on her hands-on experience in each of the three techniques.  She also answered her interview questions well and confidently and convinced the panel of her expert experience.  Dr Douglas was awarded 18 out of 20 against this criterion. 

18.	The claimant came sixth in ranking order out of seven candidates.  Two other candidates were placed on the reserve list for this post.  One was Asian-Australian and the other Spanish.  The other candidate from a perceived white British background was not placed on the reserve list and was classified as unsuccessful.  

19.	At the outset of this selection process, the human resources officer involved was Linda Bowen.  Mrs Bowen was aware of the claimant’s earlier claim for race discrimination made against this respondent.  The claimant contended that Mrs Bowen was involved in both competitions and he believed that there would be a general awareness about his previous case amongst the human resources department including Mrs Short. 

20.	Mrs Bowen went off on long term sick leave from the respondent in June 2008.  Her role in this competition was taken by Mrs Short.  Mrs Short did not discuss the matter with Mrs Bowen.  Mrs Bowen worked on the operational team.  Mrs Short conceded that had she been a member of the operational team she might have been aware of the proceedings.  However she was not involved in the day-to-day operational role of the human resources department.  She was involved in a policy project and had been working on the policy team since 2005.  She had no role in this process until after Mrs Bowen had gone on sick leave.  Mrs Short had no discussion with Mrs Bowen about the claimant or this recruitment exercise.  Mrs Short played no part in the decision of this competition.  

21.	Neither Dr Millar nor Mrs Price were aware of the claimant’s earlier proceedings against the respondent at the time of this recruitment exercise.  

The law

22.	Article 3(1) of the RRO provides:-

“A person discriminates against another in any circumstances relevant for the purposes of any provision of this Order if –

	(a)	On racial grounds he treats that other less favourably than he treats or would treat other persons … .”

23.	Article 5 provides that ‘racial grounds’ means any of the following grounds, namely colour, race, nationality or ethnic or national origins.

	Victimisation is dealt with in Article 4 of the RRO which states:–

“4(1)	A person (‘A’) discriminates against another person (‘B’) in any circumstances relevant for the purposes and any provision of this Order if –

	(a)	he treats ‘B’ less favourably than he treats or would treat other persons in those circumstances;

		(b)	he does so for a reason mentioned in paragraph 2.

(2)	The reasons are that–

	(a)	‘B’ has –

	(i)	brought proceedings against ‘A’ or any person under this Order; or

	(ii)	given evidence or information in connection with such proceedings brought by any person; or

	(iii)	otherwise done anything under this Order in relation to ‘A’ or any other person; or

	(iv)	alleged that ‘A’ or any other person has (whether or not the allegations so states) contravened this Order; or

(b)	‘A’ knows that ‘B’ intends to do any of those things or suspects that ‘B’ has done, or intends to do, any of those things. 

24.	It is for the claimant to make out his case for discrimination based on race.  Article 52A of the RRO provides:-

“Where, on the hearing of the complaint, the complainant prove facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent –

(a)	has committed such an act of disclosure discrimination or harassment against the complainant, 

(b)	is by virtue of Article 32 or 33 to be treated as having committed such an act of discrimination or harassment against the complainant, 

(c)	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 committed, that act.

25.	Guidance on how to apply the burden of proof was provided by the Court of Appeal in the case of Igen Ltd  v  Wong [2005] EWCA Civ142.  The court pointed to a     two-stage test.  The claimant must firstly show facts from which the tribunal could, in the absence of an adequate explanation, conclude that the respondent had committed an unlawful act of discrimination.  Once the tribunal has so concluded the burden then shifts to the respondent to prove that he did not commit an unlawful act of discrimination.

26.	In the subsequent Court of Appeal decision of Madarassy  v  Nomura International PLC [2007] IRLR 246, Lord Justice Mummery said:–

“The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination.  They are not, without more, sufficient material from which a tribunal ‘could conclude’ that on the balance of probabilities the respondent had committed an unlawful act of discrimination.

‘Could conclude’ in Section 63A(2) must mean that "a reasonable tribunal could properly conclude" from all the evidence before it.”

27.	Lord Justice Mummery went on to say:-

“Section 63(A) does not expressly or impliedly prevent the tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant’s evidence of discrimination.  The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situation with which comparisons are made are not truly like the complainant or the situation of the complainant; or that, even if there has been less favourable treatment of the complainant, it was not on the ground of her sex or pregnancy.  

Such evidence from the respondent could, if accepted by the tribunal, be relevant as showing that, contrary to the complainant’s allegations of discrimination, there is nothing in the evidence from which the Tribunal could properly infer a prima facie case of discrimination on the proscribed ground.”  

28.	In the case of Laing  v  Manchester City Council [2006] IRLR 748, Mr Justice Elias said:–

“The focus of the tribunal’s analysis must at all times be the question whether or not they can properly and fairly infer race discrimination.  If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter.  It is not improper for a tribunal to say, in effect, “there is a nice question as to whether or not the burden has shifted, but we are satisfied here that, even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race”.”

29.	The English authorities have been endorsed by the Northern Ireland Court of Appeal.  In the case of Nelson  v  Newry and Mourne District Council [2009] NICA 24, Lord Justice Girvan referred to Madarassy.  He then said:–

“This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination.  The whole context of the surrounding evidence must be considered in deciding whether the tribunal could properly conclude, in the absence of adequate explanation, that the respondent has committed an act of discrimination.

In Curley  v  Chief Constable [2009] NICA 8, Coghlin LJ emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination.  The need for the tribunal to retain such a focus is particularly important when applying the provisions of Article 63A.  The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”

Tribunal’s conclusions

30.	Having considered the law set out above the tribunal firstly considered whether or not in relation to any of the protected grounds the burden of proof should transfer to the respondent.  The tribunal is satisfied that in this case the burden of proof does not shift to the respondent.  On the facts as found the tribunal does not conclude in the absence of an adequate explanation, from the respondent, that the respondent has committed an unlawful act of discrimination against the claimant. 

31.	There was undoubtedly a breach of the respondent’s procedure in that the interview proceeded without Professor Hornsby.  However, on the basis of the facts as found surrounding that process the tribunal does not draw any inference of discrimination.  In looking at the whole context of the surrounding evidence the tribunal is satisfied that it is inappropriate to draw an inference from that breach of procedure.  Professor Hornsby’s absence was due to a personal difficulty and the tribunal accepts that there were pressing considerations in a further postponement of the interview process.  All candidates were interviewed by the same interview panel.  

32.	The tribunal does not draw any inference from the fact that the panel’s marks were weighted in the criteria of experience, nor from the fact that the first two criterions of education qualifications and experience were the subject of discussion and then an agreed marking in accordance with the respondent’s procedures. 

33.	It was not disputed that the claimant is a highly qualified individual.  The panel however was not satisfied as to the relevance of his qualifications and whether the criteria sought for the post were adequately demonstrated by the claimant.  The tribunal has accepted the panel’s evidence that Dr Douglas gave a strong presentation and demonstrated to their satisfaction the hands-on experience sought as well as providing full answers to the interview questions.  However the tribunal has also accepted that the claimant’s presentation did not focus on the question posed and in the follow-up questions he told the interview panel that a technician had assisted him in preparing samples.  The claimant did not challenge the evidence of Dr Millar or Mrs Price and he provided no evidence of his rheological experience apart from the reference to it on two slides in his presentation.  

34.	Even if the tribunal were wrong therefore in not transferring the burden of proof to the respondent it would in any event have been satisfied as to the explanations given by the respondent and that the respondent’s actions were not on the grounds of the claimant’s race. 

35.	The tribunal also noted that whilst the successful candidate was of British or Irish origin, the two reserve candidates for the post were of Asian-Australian background and Spanish background.  The claimant came sixth out of seven in the overall competition. 

Victimisation

36.	It is accepted that the claimant performed a protected act, that is he had previously presented proceedings to the industrial tribunal.  The protected act need not be the sole cause of the less favourable treatment but must have been an important cause and have significant influence.  The less favourable treatment is the failure to appoint the claimant.  The tribunal on the facts as found is not satisfied that the protected act played any part in the failure to appoint the claimant.  Dr Millar and Mrs Price were unaware of the claimant’s earlier proceedings at the time of this recruitment process.  The claimant attempted to make the case that Mrs Short, as a member of the human resources department, must have been aware of the earlier proceedings because she took over from a colleague who was plainly aware of the earlier proceedings.  However the tribunal has determined as a fact that Mrs Short was not aware of the earlier proceedings and nor were the panel members.  In those circumstances the claimant’s claim for victimisation must fail. 

37.	The tribunal therefore dismisses the claimant’s claims for race discrimination and victimisation on the grounds of race. 

Chairman:

Date and place of hearing:	10 – 13 November 2009, Belfast

Date decision recorded in register and issued to parties: