Sherlock v Board of Governors, St Patrick... Council for Catholic Maintaine... [2011] NIIT 02600

THE INDUSTRIAL TRIBUNALS

CASE REF: 2600/10

CLAIMANT: Joseph Martin Sherlock

RESPONDENTS: 1. Board of Governors, St Patrick’s Primary School

2. Council for Catholic Maintained Schools

DECISION

The unanimous decision of the tribunal is that:-

(1) The claimant was not unlawfully discriminated against on the grounds of his sex by the respondents or either of them.

(2) The claimant’s claim is therefore dismissed.

Constitution of Tribunal:

Chairman: Mr N Drennan QC

Members: Mrs G Ferguson

Mr A Crawford

Appearances:

The claimant was represented by Mr T Carlin, Trade union official, of INTO.

The respondents were represented by Mr M Wolfe, Barrister-at-Law, instructed by Napier & Sons, Solicitors.

Reasons

1.1 The claimant presented a claim of sex discrimination against the respondents to the tribunal on 1 November 2010, arising out of his failure to be appointed following a selection and recruitment exercise which took place in May 2010 and subsequently in July 2010, in relation to the post of Principal of St Patrick’s Primary School, Holywood. The respondents presented a response to the tribunal on 14 December 2010, in which they denied liability for the claimant’s said claim.

1.2 At a Case Management Discussion held on 22 March 2011, as set out in the Record of Proceedings dated 28 March 2011, the following agreed legal and main factual issues were identified by the parties to the tribunal, namely:-

Legal issues :

(1) Was the claimant treated less favourably on the grounds of his sex, contrary to Article 3(1)(a) of the Sex Discrimination (Northern Ireland) Order 1976 by the respondents’ failure to appoint him to the post of Principal of St Patrick’s Primary School in either May 2010 or July 2010?

(2) Was the claimant discriminated against on the grounds of his gender, by the respondents’ failure to offer him the position of Principal in either May 2010 or July 2010, contrary to Article 8(1)(c) of the Sex Discrimination (Northern Ireland) Order 1976?

(3) Did the respondents fail to complete the statutory grievance procedure under Article 6 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004? If successful, what remedy should be afforded to the claimant pursuant to Article 65 of the Sex Discrimination (Northern Ireland) Order 1976 and/or the Employment Rights (Northern Ireland) Order 1996?

(4) Did the claimant suffer any injury, including personal injury, loss and/or damage by reason of the unlawful discrimination, as alleged.

Factual issues :

(1) Was the claimant subjected to discrimination?

(2) Did the respondents fail to deal with the claimant’s statutory grievance?

(3) Did the statement of Mr Pollock (ie “there were very good applicants out there”) amount to a prejudice against the claimant?

(4) Was the interview process of both 26 May 2010 and 6 July 2010 flawed?

(5) Was the interjection by Ms Elliott on 6 July 2010, at the claimant’s interview, out of place and inappropriate?

(6) Was the claimant’s scoring, on 6 July 2010, underscored by the female governors and purposely marked down and altered?

(7) What is the claimant’s injury, loss and damage?

In relation to the said agreed statement of issues, the claimant’s representative, Mr Carlin, at the above hearing, confirmed in relation to the above issues:-

(1) The claimant alleges the SDP was not followed, in that a hearing took place in November 2010 in relation to his grievance but no outcome has yet been received by him.

(2) The allegation that Mr Pollock made the statement, “there were very good applicants out there”, does not constitute an allegation of an act of discrimination but is alleged to be evidence of a discriminatory motive on the part of Mr Pollock in failing to appoint the claimant to the post.

(3) The alleged interjection made by Ms Elliott does not constitute an act of discrimination but rather constitutes evidence of a discriminatory motive on her part in failing to appoint the claimant to the post.

1.3 There was no dispute that, if the tribunal found the claimant had been unlawfully discriminated against on the grounds of his sex, the respondents would be jointly liable for any such discrimination (see further Articles 3 and 6 of the Education (Modification of Statutory Provisions relating to Employment) (Northern Ireland) Order 1991.

2.1 The tribunal made the following findings of fact, insofar as relevant and material, to enable the tribunal to determine the claimant’s claim, as set out in the following sub-paragraphs, having heard oral evidence, on behalf of the claimant, from the claimant himself and Marie Tunney; and, on behalf of the respondents, from Mary Cunningham, John Tulloch, Father Forsythe, Maureen Eccles, Kate Elliott, Fiona McAnespie, Father O’Kane and Finton Murphy; and after consideration of the oral and written submissions of the representatives of the parties.

2.2 The claimant is an experienced and well regarded teacher. In September 2001 he was appointed as Vice Principal of St Patrick’s Primary School, Holywood, (‘the School’). On 31 March 2010, the Principal of the School retired and on 9 March 2010 the claimant took up the role of Acting Principal of the School, pending the appointment of a new Principal; and the claimant remained in that role at all times material to the events, the subject-matter of this claim.

In or about April 2010, the claimant submitted an application for the post of Principal of the School via the on-line recruitment process of the second respondent and was subsequently called to interview on 26 May 2010, along with a number of other shortlisted candidates. There was no issue in relation to the short listing process carried out prior to this interview. The claimant was the only internal candidate from the School.

2.3 Pursuant to Article 143(1) of the Education Reform (Northern Ireland) Order 1989, the second respondent employs all teachers who are required on the staff of Catholic Maintained Schools. St Patrick’s School, Holywood, was such a school. Further, under Article 143(2) of the said Order, the second respondent is required to prepare and from time to time revise the Scheme providing for the procedures to be followed by the Board of Governors of Catholic Maintained Schools in relation to the appointment of teachers for such schools.

Under Article 143(4) of the Order, the Scheme must make provision for assessors, drawn from a panel, to give advice and assistance to the Board of Governors of Catholic Maintained Schools in relation to the appointment process carried out under the Scheme, which Scheme the Board of Governors are required to give effect to when appointing teachers to such a School. It will be necessary to refer elsewhere in this decision to the ‘Scheme’, which was in force for the appointment process carried out in 2010 for the appointment of the Principal of the School.

2.4 Following the interview, on 26 May 2010, the claimant was informed by letter on 28 May 2010, that he had been unsuccessful and had not been appointed to the post of Principal of the School. The tribunal can fully understand his deep disappointment on receipt of the letter, not least having regard to the fact that he was the only internal candidate and was the Acting Principal of the School at the time. The interview panel, after considerable lengthy discussion, following the interviews with all the shortlisted candidates, had decided there was not the necessary consensus among them, as required on the Scheme, as to who should be appointed and that the post should therefore be re-advertised and a new appointments process begun. The tribunal can accept that, since it had been expected, following the May interviews, a new Principal for the School would have been announced, before the end of the school year in June 2010, there was considerable uncertainty amongst the other members of the staff, who were anxious to know who would be the new Principal at the start of the new academic year in September 2010; and that this uncertainty would clearly have had to be addressed, as a matter of urgency, by the first respondent.

In the circumstances, Mr Pollock, who was Chairman of the Board of Governors and a member of the interview panel, decided to address the members of the teaching staff in relation to the position about an appointment of the Principal of School following the failure to appoint after the interviews on 26 May 2010. In doing so, the tribunal is satisfied that Mr Pollock was at all times very sensitive to the feelings of the claimant, a disappointed internal candidate, who was expected to carry on his duties as Acting Principal, despite his failure to be appointed following the interviews. The claimant properly decided not to attend the meeting of the staff addressed by Mr Pollock on 1 June 2010.

During the course of his remarks to the staff, when Mr Pollock informed them that no appointment had been made and the post would be re-advertised, he also stated, the tribunal is satisfied Mr Pollock, in order to give some reassurance and encouragement to the staff, told the meeting an appointment would be made, and added words to the effect that the Board of Governors would find the right person for the job and that there are “some very good people out there” [tribunal’s emphasis]. Mary Tunney, a member of the staff, informed the claimant of what had been said at the meeting by Mr Pollock. The claimant, wrongly in the tribunal’s view, chose to interpret the remark by Mr Pollock as indicating that, as an internal candidate, Mr Pollock was of the view no internal candidate stood a chance. Whilst, with hindsight, the tribunal has no doubt Mr Pollock might have chosen his words more carefully to avoid any risk of any such misinterpretation by the claimant, the tribunal equally has no doubt that that was not his intention and has been deliberately so interpreted by the claimant in order to assist his claim of sex discrimination. Crucially, Mrs Tunney at no time interpreted the words as indicating any such bias against an internal candidate by Mr Pollock. If she had, the tribunal had no doubt she would have said so at the time to the claimant; but she did not do so. Indeed, at the tribunal, she was clear in her evidence that she was not prepared to give the words of Mr Pollock the interpretation the claimant to do so.

2.5 The post having been re-advertised, the claimant was again shortlisted and was interviewed on 6 July 2010, along with a number of other candidates. Again, there is no issue, relevant to this claim, in relation to the short listing process. On 7 July 2010, the claimant was informed by letter that he was again unsuccessful. A female candidate, Mrs T, who had also been an unsuccessful candidate at the May interviews, was appointed as Principal of the School, following the July interview.

2.6 The claimant has maintained that the failure to appoint him either at the May interview and/or the July interview was because of his sex. It was therefore necessary for the tribunal to consider the said interviews, insofar as relevant, and relevant in more detail, as set out elsewhere in this decision. However, it is necessary to note, at this stage, that the claimant, in his witness statement, which he adopted as his evidence-in-chief, focused, in relation to his claim, on the actions of Mr Pollock, the Chairman of the Board of Governors and a member of the interview panel, stating, for example, at Paragraph 74 of his witness statement:-

“ … I am now convinced that I was discriminated against throughout this selection process and that this was premeditated and manipulated by Mr Pollock throughout.”

Indeed, at Paragraph 57 of his witness statement, he also stated that Mr Pollock ‘controlled and manipulated’ the process because “he wanted a female appointed in general and Mrs T in particular”.

Despite the serious nature of the above allegations and that Mr Pollock, in order to have achieved this result, must have acted in the above way, with the concurrence of the other members of the panel, the tribunal noted that Mr Pollock was at no time directly challenged, during the course of his cross-examination, which Mr Carlin fairly acknowledged, in the course of his submissions, to the tribunal, in relation to this serious allegation of premeditation/control/ manipulation by Mr Pollock. Equally no such allegation was ever put, in the course of cross-examination to the other members of the interview panel. In determining this claim, the tribunal found these omissions both surprising and significant.

2.7 In relation to the July interview, the claimant was introduced to the members of the interview panel. Father Forsythe, who was Chair of this panel, forgot to introduce Ms Kate Elliott, another member of the interview panel. She then stated “and me”, clearly loud enough to be heard by the claimant. The omission was clearly unfortunate; but the tribunal is satisfied that the interjection of Ms Elliott, which was perfectly understandable, was of no relevance to the further conduct of the interview or affected the claimant in any way. In particular, it was not satisfied that it showed any discriminatory motive on the part of Ms Elliott, whom the tribunal is satisfied at all times carried out her membership of the interview panel in a fair, professional and conscientious way. The tribunal considered the claimant has exaggerated, solely for the purposes of his claim to the tribunal, the effect on him of this interjection.

2.8 At both the May interview and the July interview, Mary Cunningham, a management officer of the second respondent, was present. She is an experienced officer and her primary role at any such interview is to provide advice and guidance to panels on matters of procedure, in line with the Scheme and to ensure all procedures are adhered to.

2.9 Under the Scheme, the two assessors, to which previous reference has been made, are members of the selection interview panel but are non-voting members.

Under Paragraph 6.1 of the Scheme, the assessors are appointed to the selection panel to represent the second respondent in discharge of its function of ensuring the provision of effective education in Catholic Maintained Schools.

Under Paragraph 6.2 of the Scheme, ‘the assessors may anticipate in the selection process and their role is to provide advice and guidance on the suitability and relevant merits of individual candidates for the vacancy’.

Their role in the process is clearly very important and influential, having regard to their role in the Scheme, as set out below. The assessors are independent of the School and are experienced serving Principals, who have been trained in assessment-selection processes. Indeed, it is the assessors who prepare, following consultation with the Governors of the School, the interview questions and what the members of the panel should be looking for in response to those questions.

2.10 Under Paragraph 7.6 of the Scheme it is provided, as follows, in relation to the interview:-

“Paragraph 7.6.1

Prior to the commencement of the first interview the Chairman will ensure that each member is provided with a copy of the selection documentation, including application forms, job descriptions, personnel specification, assessment sheets and available references.

Paragraph 7.6.2

A Chairman shall ensure that a record of the core questions is retained with the documentation.

Paragraph 7.6.3

Following an opportunity to consider the performances of all candidates, each assessor should, as part of the collective process, summarise the main strengths and weaknesses of each candidate and, if appropriate, identify those considered to be unsuitable.

Paragraph 7.6.4

It will be the responsibility of each voting panel member to arrive at an independent assessment awarding the appropriate marks and completing and signing an assessment form. The suitability of candidates shall be assessed following consideration of all factors relating to the needs of the post.

Paragraph 7.6.5

The Chairman should endeavour to obtain the consensus of voting members on the most suitable candidate of the post.

… .”

2.11 The tribunal is satisfied that, at both the May and July 2010 interviews, the voting members of the interview panel, at the conclusion of each interview, in accordance with the normal practice of the respondents in relation to such interviews and in accordance with the Scheme, independently assessed the candidates and gave an initial mark to each candidate accordingly on the relevant forms provided to them. Further, at the conclusion of all the interviews, Ms Cunningham went round to each panel member and recorded their final mark (ie after any changes to their initial mark) which they had given to each candidate. She then entered these on a summary sheet. She noted how each candidate had been ranked by each interview panel member and then ascertained the overall ranking of each candidate in light of the final marks/ranks she had been given by each interview panel member. This summary sheet was then given to the Chairman of the interview panel. Until the completion of the summary sheet by Ms Cunningham, the panel members therefore had no knowledge of the final marks given by the other members of the interview panel and/or their respective ranking of each candidate or indeed the overall rankings of each candidate.

At this stage, and not before then, the assessors, who during the course of the interviews have been assessing the candidates during the interviews, prepared their written assessments of each candidate, and then informed the panel members of their respective assessments. Panel members were then given an opportunity, if they wished, to amend their marks in light of the assessors’ assessments/comments. In the event, in respect of neither the May or July 2010 interviews, no panel member sought to make any changes, at that stage, to the final marks which had been given previously to Ms Cunningham and which she had set out in her summary sheet, as set out above.

2.12 A central feature of the claimant’s claim of sex discrimination in this matter was his reference to the various changes made by certain of the interview panel members to the initial marks made by them after each interview, and before a final mark was given to Ms Cunningham in order to prepare her summary sheet. In this case, it was apparent that all relevant paperwork used by each of the interview panel members was retained after the interview process and all such changes were therefore readily apparent to the parties and the tribunal for the purposes of these proceedings. The tribunal was satisfied that both interview panels, in May and July 2010, went about their task in a most conscientious way and at all times were seeking to appoint the candidate whom they believed would be the best person to be appointed, on merit, for the post of Principal of the School.

2.13 The claimant, in his evidence, was adamant that once marks were initially awarded by an interviewer at the conclusion of an interview such marks could not be changed before any final marks were handed into Ms Cunningham to enable her to prepare the summary sheet referred to above. In particular, the claimant asserted that there should be no opportunity before the final score was given to Ms Cunningham, to alter a score which had been given earlier, even if this meant that a member of the interview panel felt, in light of, for example, other interviews, a candidate had been too harshly or too generously marked. In essence, the claimant contended that marks once given at the end of an interview of a particular candidate were “set in stone”. In the tribunal’s view this contention was unrealistic and unfair; and, indeed, would be contrary to good practice. However; clearly, if changes are made, these should be obvious from the paperwork and able to be explained, if necessary. Further, in the view of the tribunal, to allow changes to be made, as set out above, where a member of the interview panel considered it necessary, to do so before giving to Ms Cunningham the final marks/rankings, was consistent with the terms of the Scheme in Paragraph 7.6, as set out above.

2.14 In light of the foregoing, it was therefore necessary for the purposes of determining the claimant’s claim for the tribunal to consider a number of particular changes to the marks of individual panel members in the May and July 2010 interviews, which were relied on by the claimant.

2.15 Father O’Kane, a member of the interview panel in both the May and July 2010 interviews, made changes to the marks he gave to Ms B and the claimant at the May 2010 interview. As a result of those changes, the claimant, instead of being Father O’Kane’s first ranked candidate became his joint first ranked candidate alongside Ms B. The tribunal found Father O’Kane a very quiet but sincere witness. It fully accepted his explanation that he decided to make the change because he considered that his initial marking did not properly reflect his assessment of the respective performance of both the claimant and Ms B at interview and he needed to reflect, in his marking, that he had ranked them both as joint first. The tribunal rejected any suggestion that any of these changes made by Father O’Kane were made to discriminate against the claimant because he was male. Indeed, if Father O’Kane was minded to discriminate against the claimant, which the tribunal does not accept, it would have been all too easy for him to have marked the claimant and Ms B in such a way to achieve such an intention. This he did not do. Obviously, any changes made by a member of an interview panel has potential consequences, not only for an individual interview panel member’s ranking of a candidate but, ultimately, for the overall ranking. Given that the interview panel member’s marks/rankings were not discussed until after Ms Cunningham had prepared her summary, including the overall ranking based on the individual final marks and rankings of each interview panel member, the potential effect of any changes to marks and overall rankings could not have been known by an interview panel member, when making such changes. Thus, Father O’Kane could not have known that any indirect result of the changes he had made, as set out above, was that the claimant would then be placed, in light of the changes, as the second candidate overall behind Ms B. The tribunal also noted, in the above context, that, when it came to the July 2010 interview, Father O’Kane, consistent with what he had done in the May 2010 interview assessed, the claimant as his first rank candidate. Ms B did not participate in the July 2010 interview.

2.16 The claimant raised issues with the fact that Mr Pollock ranked three female candidates ahead of the claimant at the May 2010 interview, including Mrs T, the ultimately successful candidate and suggested this showed he wanted to appoint a female candidate. The tribunal does not accept it shows any such thing; only that Mr Pollock assessed those candidates higher than the claimant. It is clear from the result of the May 2010 interview the interview panel were unable to reach any consensus, despite a long and lengthy deliberation and decided not to make any appointment. In essence, the interview panel were split, an interview panel made up of both male and female members. The claimant gave no evidence to show why Mr Pollock, if the claimant was right, was determined to appoint a female and not a male. Mrs T was Mr Pollock’s first ranked candidate; and also that of Ms Eccles, another member of the interview panel. Ms B was Mr Pollock’s second ranked candidate; but other than Ms Eccles who placed her fourth. Ms B was either the first or the second ranked candidate of the remaining members of the interview panel.

Indeed, if the interview panel in the May 2010 interview had been minded to discriminate against the claimant on the grounds of his sex, it would have been all too easy to have done so and appointed Ms B, the first ranked candidate overall.

2.17 In the July 2010 interview, Mr Pollock did change the original marks he had given to Mr McT. As noted previously any such changes inevitably had the potential to alter not only Mr Pollock’s rankings of the individual candidates but also after Ms Cunningham had prepared her summary, based on those final marks/rankings, the overall rankings. It is correct that, as a consequence of his changes, the net effect was that the claimant was ranked third by Mr Pollock, where before the change he had been second – which had an effect in turn on the overall position. It has to be noted that, if Mr Pollock was determined not to have an internal candidate, as alleged by the claimant, to mark him second/third was not, in the tribunal’s view, consistent with such an allegation. Further, the tribunal was satisfied Mr Pollock increased Mr McT’s score not for any discriminatory reasons but because he concluded he had, when initially marking Mr McT, underestimated his personal qualities but also the knowledge and experience Mr McT had gained as a Principal for four years. The claimant, it must be recalled, had only been an Acting Principal for a number of months. Others, notably Father Forsythe and Ms Elliott, had also ranked Mr McT highly.

2.18 Ms Eccles, a very experienced member of the interview panel, who had served on the Board of Governors at the School for some 12 years and served as a panel member for such selection recruitment exercises for some 10 years, also made some changes to the scores of not only the successful candidate of the July 2010 interview, Mrs T, but also other candidates. The tribunal was impressed by Ms Eccles as a witness and had no doubt she was a person who took her duties as a member of the interview panel, but also a Governor of the School, very seriously. Again, the tribunal is satisfied that, any changes she made to her initial scores, she did as part of her independent assessment of each candidate before she handed in her final scores to Ms Cunningham. The effect of her changes were to mean Mrs T and the claimant were ranked joint first by her, with a consequential effect on the overall ranking. In essence, Ms Eccles thought both the claimant and Mrs T were equally good. As a consequence she changed some scores where she marked the claimant downwards, albeit one score she increased. If Ms Eccles was minded to discriminate against the claimant, the tribunal believes she would have ensured her marks did not reflect equality with Mrs T but that he would have been ranked below Mrs T in any final marking. This she did not do. Given Ms Eccles did not know the marks/ranks of any of the other panel members, when she made the changes, she could not have been aware that how changes she made might affect the overall rankings.

2.19 The claimant, in light of the foregoing, is driven to the conclusion the claimant has looked for any particular changes made by the individual panel members, which alters this position and then, without more, jumped to a conclusion this must be evidence of sex discrimination. The tribunal, for the reasons set out above, cannot share his conclusion.

2.20 Father Forsythe was the Independent Chairman of the July 2010 interview panel. In his notes, he has, in the section headed ‘personal qualities’ under the sub-section to be assessed ‘child centred’, has referred to the successful candidate, Mrs T’s ‘mothering skills’. With the benefit of hindsight, it is clear, and Father Forsythe did not seek to say otherwise, this was unfortunate phraseology on his part and which could be easily misinterpreted. However, having heard the evidence of Father Forsythe and accepting that this was, in essence, a shorthand/abbreviated way by him of describing his assessment of Mrs T’s child centredness, the tribunal was not satisfied that, by using the phrase, Father Forsythe believed that only a woman could have the necessary child centred qualities the interview panel were looking for. The tribunal concluded that the use of the phrase, in the circumstances, however unfortunate, was not evidence of discrimination on the grounds of sex on the part of Father Forsythe. Father Forsythe, during the course of the interviews, made notes on one form, which were not originally designed for that purpose and then sought to transcribe these notes onto the correct form when finalising his assessment. In the course of transcribing the reference to mothering skills was omitted. Whilst the tribunal could understand that such an omission could be significant, the tribunal was satisfied that the omission was carelessness on his part in the rush to finalise his notes, where he had given himself the added task of transcribing from one form to another. Both sets of forms used by Father Forsythe in the course of his assessment were collected at the conclusion of the process. His use of the unfortunate phraseology was therefore not hidden and could, if necessary, be challenged. The tribunal did not see anything sinister or which would suggest discrimination on the part of Father Forsythe, in either his use of the above phrase or its omission from one of the forms containing his notes of the interview.

2.21 One of the questions prepared by the assessors, to be used in relation to the interviews in July 2010, became known, during the course of the hearing, as the ‘ethos question’. It stated:-

“Can you tell the panel what you have done to demonstrate your ability to lead others in promoting the Catholic ethos within St Patrick’s and within the community it serves?”

It was clear from Father Forsythe’s notes of the interview and in his evidence to the tribunal, that he was particularly critical of the claimant’s answers to this question. At the heart of his criticism was that the claimant did not answer the question, as might have been expected, as seen in the anticipated responses prepared by the assessors, until after he had had to be prompted. Given Father Forsythe’s clerical background, this was undoubtedly a very important question for him and he clearly did not expect such a prompt should have been necessary. Although the tribunal is satisfied the claimant, following the prompt, supplied a reasonable, albeit brief, answer, Father Forsythe was clearly not prepared to assess the answer as he might have done if the answer had been given without the prompt. Whilst this may seem harsh, it was not in the tribunal’s view, any evidence of discrimination on the grounds of sex. To a lesser extent, Mr Pollock and one of the assessors also criticised the claimant’s answer to this question. Father O’Kane, another clerical member of the interview panel, was more forgiving than Father Forsythe. He did not take such a harsh view as Father Forsythe had done, which was reflected in their respective markings. However, whilst the above shows a difference of opinion between the two clerical members of the interview panel, on a subject on which they would have considerable expertise, the tribunal is satisfied that it was not evidence of any discrimination on the part of Father Forsythe on the grounds of sex; but rather a reflection of his view of the claimant’s answers requiring to be prompted, on a matter which Father Forsythe did not consider should have needed such a prompt.

2.22 The tribunal is further satisfied that the interview panel and, in particular, Ms Eccles, Father Forsythe and Mr Pollock, marked the claimant down when, in answer to some of the questions he was asked, he referred to what ‘we’ had done or would do, rather than what ‘he personally’ had done or would do. Indeed, the tribunal concluded that, as the internal candidate who had been Vice Principal for 10 years and was now Acting Principal, the claimant had wrongly assumed that the interview panel would know what ‘he’ had done rather than the need for him to demonstrate it clearly in the interview, in the course of his answers, regardless of what knowledge the members of the panel may or may not have had. Indeed, the claimant acknowledged, fairly and frankly in answer to the tribunal, that, when he answered in the above way, which he did not dispute, it was ‘a tactical error on his part’.

2.23 In the May 2010 interview, both the assessors found the claimant and Mrs T suitable for appointment. In the July 2010 interview, two different assessors were appointed. Mr Murphy, one of the assessors, found the claimant unsuitable for appointment, whereas the other assessor found him suitable. Both assessors found Mrs T suitable for appointment, albeit even the assessor who found the claimant suitable made certain criticisms of him. There was no criticism made by the claimant of the integrity of either of the assessors. However, understandably, the claimant disagreed with the opinion formed by Mr Murphy. It is important to note that the assessors gave their assessments, following the preparation of the summary sheet by Ms Cunningham. The tribunal has no doubt that what was said by the assessors was taken into account by the individual members of the panel before they reached their decision by consensus to appoint Mrs T; but the assessors’ assessment did not require any of the interview panel to further alter their marks/rankings before reaching their final decision to appoint Mrs T, as set out above. The tribunal is satisfied that Ms Cunningham, following the assessors’ report/comments, gave the interview panel members the opportunity to make any such changes; but they declined to do so. The assessors were independent and experienced Principals who would have had no reason, nor was any such reason suggested, to discriminate against any of the candidates, let alone discriminate against the claimant on the grounds of his sex. The assessors observed all the candidates throughout the interview process. Whilst the claimant might have disagreed with the conclusions reached by Mr Murphy, there was no evidence to suggest that his conclusions were in any way tainted by sex discrimination. The tribunal was satisfied that Mr Murphy genuinely had concerns, having observed the claimant and considered his answers to the interview panel, whether he could move from ‘team’ to ‘leader’. In this context, like others on the panel, he also had particular concerns about the claimant’s use of ‘we’ in some of his answers; as opposed to giving a clear demonstration of what ‘he’ had done or would do.

3.1 As set out in the statement of issues, referred to above, the claimant raised issues in relation to the failure of the respondents to complete the statutory grievance procedure under Article 6 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 and, its impact, if any, on any award of compensation which might be made by the tribunal to the claimant. Mr Carlin fairly indicated that the only issue arising in relation to the statutory grievance procedures related to whether there had been any unreasonable delay in processing the grievance. In view of the tribunal’s decision in this matter, as set out below, it was not necessary for the tribunal to consider this issue any further. However, if it had been necessary to do so, the tribunal would have found that there was no unreasonable delay because of the practical difficulties which had arisen before a full and comprehensive report could be obtained in relation to the grievance; not least given that those involved in relation to the above exercise were volunteers with separate employment, family commitments and the members of the interview panel, who had to be interviewed, had themselves other personal and professional commitments independent of this matter. This resulted, the tribunal accepted, in a longer timescale than would normally be the case.

Relevant legislation

4.1 Under the Sex Discrimination (Northern Ireland) Order 1976, it is provided:-

“3(1) In any circumstances relevant for purpose of any provision of this Order, other than the provision to which Paragraph (2) applies, a person discriminates against [a man] if –

(a) on the ground of [his] sex, he treats [him] less favourably than he treats or would treat a [woman].

8(1) It is unlawful for a person, in relation to employment by him at an establishment in Northern Ireland, to discriminate against a [man] –

(a) in the arrangements he makes to the purposes in determining who should be offered that employment; or

(b) in the terms in which he offers [him] that employment; or

(c) by refusing or deliberately omitting to offer [him] that employment.

Article 63A

(1) This Article applies to any complaint presented under Article 63 to an industrial tribunal.

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

(a) has committed an act of discrimination … against the complainant which is unlawful by virtue of Part III, or

(b) is by virtue of Article 42 or 43 is to be treated as having committed such an act of discrimination … 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 committed that act.”

4.2 The English Court of Appeal, in the case of Igen v Wong [2005] IRLR 258 considered the provisions equivalent to Article 63A of the 1976 Order and, proved, with minor amendment, the guidelines set out in the earlier decision of Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332. In a number of decisions, the Northern Ireland Court of Appeal has approved the decision of Igen v Wong and the said two-stage process to be used in relation to the burden of proof (see further Brigid McDonagh & Others v Samuel Thom T/A The Royal Hotel Dungannon [2007] NICA 3). The decision in Igen v Wong has been the subject of a number of further decisions, including Madarassy v Nomura International PLC [2007] IRLR 246, a decision of the Court of Appeal in England and Wales and Laing v Manchester City Council [2006] IRLR 748, both of which decisions were expressly approved by the Northern Ireland Court of Appeal in the case of Arthur v Northern Ireland Housing Executive and Another [2007] NICA 25.

In Madarassy the Court of Appeal held, inter alia, that:-

“The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts 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. This would include evidence adduced by the claimant in support of the allegation of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject to the statutory absence of an adequate explanation at this stage the tribunal needs to consider all the evidence relevant to the discrimination complaint, such as evidence to whether the act complained of occurred at all, evidence as to the actual comparators relied upon by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the claimant were of like with like as required by Section 5(3) and available evidence of the reasons for the differential treatment. The correct legal position was made plain by the guidance in Igen v Wong.

Although Section 63A(2) involves a two-stage analysis of the evidence, it 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 or rebutting the claimant’s evidence of discrimination … .”

In the decision of the Northern Ireland Court of Appeal in the case of Curley v Chief Constable of the Police Service of Northern Ireland & Another [2009] NICA 8, the Court of Appeal approved the judgment of Elias J in Laing, which was also referred to, with approval by Campbell LJ in the Arthur case, that it was not obligatory for a tribunal to go through the steps set out in Igen in each case; and also referred to the opinion of Lord Nicholl observed in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] NI 174, where he observed at Paragraph 8 of his opinion, as follows:-

“Sometimes a less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue.”

In Nelson v Newry & Mourne District Council [2009] NICA 24, Girvan LJ referred approvingly to the decisions in Madarassy and Laing and also held that the words ‘could conclude’ are not to be read as equivalent to ‘might possibly conclude’. He said that “the facts must lead to the inference of discrimination”. He also stated:-

“(24) This approach makes clear that the complainant’s allegation 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 an adequate explanation that the respondent has committed an act of discrimination. In Curley v Chief Constable of the Police Service of Northern Ireland & Another [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 claimant put forward his 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.”

4.3 Coghlin LJ in the case of Curley also referred to the well-known dicta of Carswell LCJ, as he then was, in the Sergeant A case, which also emphasises the necessity for the tribunal to look at the matter, in the light of all the facts as found:-

“[3] Discrepancies in evidence, weaknesses in procedures, poor record-keeping, failure to follow established administrative processes or a satisfactory explanation from an employer may all constitute a material which a inference of religious discrimination may legitimately be drawn. But tribunals should be on their guard against the tendency to assume that every such matter points towards a conclusion of religious discrimination, especially where other evidence shows that such a conclusion is improbable on the facts.”

5.1 In light of the legislative provisions and the legal authorities referred in the previous paragraphs, it was therefore necessary for the tribunal to determine, in light of the facts as found by the tribunal, whether the claimant had shown that the tribunal could conclude, in the absence of an adequate explanation, that the respondents had discriminated against the claimant on the grounds of his sex when it failed to appoint him/offer him the position of Principal of the School at the conclusion of the selection and recruitment process in May and/or July 2010. The tribunal was not satisfied that the claimant had done so.

5.2 In particular, in reaching this conclusion, the tribunal, on the basis of the facts as found by it, was not satisfied that Mr Pollock, the Chairman of the Board of Governors of the School, in his actions as a member of the interview panel premeditated and/or controlled/manipulated the process because he wanted a female appointed in general and Mrs T in particular. It further rejected his contention that, when Mr Pollock addressed the staff meeting and said “there were some very good candidates out there” this was evidence of any discriminatory intention on his part. Further, in relation to Ms Elliott’s remark at the commencement of the July 2010 interview, the tribunal believes that this was a totally innocent remark made by Ms Elliott; but also was an example of the claimant making reference to any matter, however irrelevant to the issues, in order to build up a case of sex discrimination and, in particular, in relation to Ms Elliott. Indeed, the tribunal found that the claimant’s witness statement (which was adopted as his evidence-in-chief), when describing what had happened in the interview and his failures to be selected, was exaggerated and also displayed an unjustified sense of drama on his part, which was not borne out, when he came to be cross-examined. If the tribunal had found the claimant had been discriminated against on the grounds of his sex, it would have been necessary to further consider this aspect of the claimant’s evidence, in relation to any issue of remedy.

5.3 For the reasons set out previously, the tribunal could find no evidence of unlawful discrimination on the grounds of sex arising out of any of the changes made to the marks of the various candidates by the interview panel members in either the May 2010 or July 2010 interviews before those marks were finalised and handed in to the second respondent’s officer, Ms Cunningham, in order to comply the summary. To suggest, as the claimant did, that there should be no such changes made, was unrealistic and unfair and contrary not only to good practice but also the terms of the Scheme. The tribunal was satisfied that any changes made by the panel members were made for proper non-discriminatory reasons; and the consequences of same could not have been known to the other panel members when the changes were made.

The tribunal acknowledged that Father Forsythe’s use of the term ‘mothering skills’ as shorthand for his assessment of the criteria ‘child centred’ was open to criticism, as indeed Father Forsythe acknowledged. However, the tribunal, for the reasons set out, did not find his use of that term amounted to evidence of sex discrimination on the part of Father Forsythe. Clearly there were differences of opinion, as reflected in their marks, between the clerical members of the July 2010 interview panel in relation to the claimant’s answers to the ‘ethos question’. The fact of such a difference of opinion does not amount to unlawful discrimination, without more. Indeed, the tribunal could understand the approach of Father Forsythe, however harsh it may have been, where the claimant had had to be prompted before giving an appropriate answer. Father O’Kane’s approach was clearly more sympathetic; but such a difference does not amount to unlawful discrimination in the circumstances. Similarly, the two assessors for the July 2010 interviews, who were independent of the School and experienced Principals, differed on whether the claimant was suitable for appointment. Obviously the claimant felt Mr Murphy’s assessment, when he found him unsuitable for appointment, was wrong. Again, without more, which the tribunal could not find, the tribunal could find no evidence of unlawful discrimination on the part of Mr Murphy. Indeed, the tribunal noted that some of Mr Murphy’s criticisms of the claimant’s performance, which were relevant to his assessment, were echoed by members of the interview panel. Although the claimant could not understand his failure to be appointed and believed he had done a very good interview on both occasions, he accepted, during the course of his evidence, that his performance was in fact open to criticism. He acknowledged that he may have made a technical error when, in answers he had referred to what ‘we’ had done/would do and not ‘I’ had done/would do; and he therefore had not fully and properly answered the question that he had been asked. Inevitably, this failure resulted in lower marking for the claimant and was subject to criticism by Mr Murphy. He further acknowledged that he had made an assumption that one of the members of the interview panel, Ms Elliott, because she had known of him in his role in the School, would have been aware of his work. To make such an assumption was, in the tribunal’s view, a fundamental error on his part, where panel members can only make an assessment on what they are told, as part of the process, and are not entitled to make such assumptions. Again, such a failure inevitably would result in lower marking for the claimant and undoubtedly contributed to his failure to be appointed to the position.

6.1 Although it found no evidence of unlawful discrimination arising from the assessment of the assessors, the tribunal is of the opinion, in light of the important role of the assessors in the individual assessment of each candidate by the voting members of the interview panel, the second respondent should give serious consideration in any review of the Scheme and/or its practices and procedures to whether it would be more appropriate, in the circumstances, for the assessors to give their assessment to the panel after all the interviews have been completed but before the marks/placings of the voting members of the panel are finalised and produced to the relevant officer of the second respondent for the purposes of the summary. Any changes to the marks, already given, before they are finalised, which are based on the assessment of the assessors, would then be more readily apparent, in the opinion of the tribunal, from the paperwork compiled during the interview process.

7.1 The tribunal therefore concluded the claimant had not been unlawfully discriminated against on the grounds of his sex; and the claim of the claimant against the respondents must be dismissed.

Chairman:

Date and place of hearing: 20 – 24 June 2011; and

30 June 2011, Belfast

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Sherlock v Board of Governors, St Patrick... Council for Catholic Maintaine... [2011] NIIT 02600_10IT (26 October 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/02600_10IT.html Cite as: [2011] NIIT 02600_10IT, [2011] NIIT 2600_10IT

Industrial Tribunals Northern Ireland Decisions