Kirkpatrick v Belfast City Council [2008] NIFET 96

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

CLAIMANT: Ivan Kirkpatrick

DECISION

The Fair Employment Tribunal finds that the claimant did not suffer discrimination on the ground of religion, and his claim is dismissed.

Constitution of Tribunal

The respondent was represented by Mr P Ferrity, of counsel, instructed by Belfast City Council Legal Services Department.

1. The Fair Employment Tribunal heard evidence from the claimant and his witness Joe McGuigan and for the respondents from the second, third, fourth respondents, Rose Crozier, Michael Brown and John Millar. The Tribunal also received 11 bundles of agreed documents amounting to 925 pages and two written submissions of 26 pages.

The Claim and Defence

3. The following legal and factual issues were agreed between the parties at a Case Management Discussion on 3 April 2008:-

(1) Did the respondents unlawfully discriminate against the claimant on the grounds of religious belief or political opinion in failing to appoint him to the post of property maintenance manager?

(1) Is the claimant better qualified than the successful candidate for the post in question?

(2) Did the claimant have better experience than the successful candidate for the post in question?

(3) Was the recruitment procedure itself unfair and if so in what way, and did this amount to religious discrimination?

4. (1) The claimant was born on the 16 June 1953. He holds a BSc., Dip. Arch., RIBA and Dip. Proj. Man.

(2) From 1983 the claimant, who is Protestant, worked for the first respondent (BCC) and he continues to work for the first respondent (BCC). He has worked as an architectural assistant, senior architect, assistant chief architect, property contract manager, property care manager and currently is technical support manager.

The second respondent (Trevor Salmon) is employed by the first respondent (BCC) and is the Director of Corporate Services since 1993 having commenced his employment with the first respondent (BCC) in 1993. He is Protestant.

The third respondent (Stanley Black) was employed by the first respondent (BCC) from November 1964 until 31 December 2007 when he retired. He was the head of Human Resources from 1998 until 2007. He is Protestant.

The fourth respondent (George Wright) is employed by the first respondent (BCC). He commenced his employment with the first respondent (BCC) in December 1982. In April 2005 he was appointed Head of Facilities Management. He is Protestant.

(3) From time to time the first respondent (BCC) has engaged in a restructuring of its organisation and workforce. In order to do that with minimum disruption to employees and to avoid redundancies the first respondent (BCC) attempts to relocate the employee within the organisation to an equivalent post whereby that employee does not suffer any loss of status or finance. This process of considering the Nearest Equivalent Post is called colloquially “nepping”.

The first respondent (BCC) operates a procedure to carry out “nepping” known as ‘Procedure for the Categorisation of Post into New Organisational Structures’. This procedure is the relevant procedure for this claim.

(4) In June 1999 the claimant became property care manager following a “nepping” procedure. A review should be carried out of the job description after one year. This did not occur although it was authorised by the first respondent’s (BCC) Policy and Resources Committee in 2002. The respondents contend that by reason of the restructuring initiated in 2005 the review of job descriptions was unnecessary.

The claimant does not allege that this was part of the religious discrimination against him. However he maintains that the failure to review the job descriptions disadvantaged all the staff in the property care department during the categorisation process.

(5) From 2005 the first respondent (BCC) embarked on a restructuring exercise whereby two departments, the property care and building maintenance departments would form one new department called the property maintenance department with a property maintenance manager in charge. Below the property maintenance manager the next tier comprised, a building projects manager, an M & E projects manager, a technical support manager and an energy conservation officer.

(6) In April 2005 under the restructuring the fourth respondent (George Wright) became Head of Facilities Management and the claimant’s line manager.

(7) In September 2005 the claimant met with the second respondent (Trevor Salmon) to express his concerns about a number of matters concerning the restructuring process.

(8) The claimant was not “nepped” to the new post of property maintenance manager to which he thought he should have been relocated. The claimant appealed against this decision on 28 October 2005.

(9) On 11 January 2006, before the claimant’s appeal against not being “nepped” to the post of property maintenance manager had been determined the post of technical support manager was identified as the nearest equivalent post to the pre-restructuring post of property care manager.

(10) The notice about the nearest equivalent post to the post of technical support manager also contained information about the nearest equivalent posts of four other positions. The notice also advised that appeals had to be lodged in writing within seven days.

(11) On 13 January 2006 the claimant met with the third respondent (Stanley Black) to discuss the claimant’s concerns about the categorisation process.

The parties are not in agreement about what was said. The claimant alleges the third respondent (Stanley Black) said, “… it is not about fairness but the process” whereas the third respondent (Stanley Black) alleges that he said, “You can’t just say it’s not fair you have to describe why. There is not a procedure for fairness.”

(12) The first respondent (BCC) notified the claimant on 21 February 2006 that he had been “nepped” to the post of technical support manager. The claimant attempted to appeal against his “nepping” to the post of technical support manager. He was advised on 2 March 2006 that one could only appeal where the post holder was not being transferred directly or being considered for a post in the new structure and that he could not appeal as he had been “nepped” to the technical support manager’s post.

(13) The claimant was unsuccessful in his appeal against not being “nepped” to the post of property maintenance manager on 25 April 2006. The claimant does not allege that this decision was an act of religious discrimination. He states however that this decision provided the opportunity for discrimination against him on the ground of religion.

(14) The claimant was the only qualified planning supervisor within the department. As planning supervision was part of the responsibility of the property maintenance manager post he believed this was another reason why he should have been transferred to that post. On July 17 2006, when the claimant was on sick leave, his signature was forged on a Notification of Project (NI 10) form to the HSE NI purporting to show his appointment as the planning supervisor.

(15) On 18 July 2006 the fourth respondent (George Wright) informed the claimant that the post of property maintenance manager was being advertised.

The claimant alleges that the fourth respondent had told him in November 2005 that the post of property maintenance manager would be ring-fenced. Were it ring-fenced the post would have been filled from internal candidates with the pool of potential candidates restricted to candidates above a certain level within the first respondent (BCC) which would have excluded the successful candidate Gerry McFall.

The fourth respondent (George Wright) alleges that the ring-fencing would only occur if there was a potential redundancy. As the claimant had been “nepped” to the post of technical support manager there was no potential redundancy and therefore no ring-fencing was required.

(16) The claimant, through his representative, informed the Tribunal that he does not allege that the application of the categorisation process to him, which he believes was not done properly, is an act of religious discrimination.

(17) A meeting was held on 2 August 2006 attended by the claimant, his union representative Joe McGuigan and the second (Trevor Salmon) and third (Stanley Black) respondents. At the meeting the claimant alleged that the fourth respondent (George Wright) had been telling staff that the claimant had no chance of getting the post of property maintenance manager. The claimant alleges that the second respondent (Trevor Salmon) had informed him that the fourth respondent (George Wright) would not be on the interview panel for the job of property maintenance manager. The second respondent (Trevor Salmon) alleges he said he would consider not having the fourth respondent (George Wright) on the panel.

(18) The first respondent advertised the post for property maintenance manager publicly in local newspapers in Northern Ireland and in specialist journals in Britain in July 2006.

(19) Shortlisting was based on satisfying the essential criteria and successfully completing an assessment. The assessment was carried out by an English firm AS Associates. The three assessors from England were Michael Brown, Helen Gaul and Ian Henderson.

(20) The assessment was carried out on 7 September 2006. The assessors were unaware of the religious affiliation of the four candidates. Part of the assessment involved a presentation to the third (Stanley Black) and fourth (George Wright) respondents. The respondents were not involved in the scoring in the assessment or in any discussion about the performance of the candidates.

(21) Of the four candidates the claimant came second with 22 marks and the top candidate with 26 marks was Gerry McFall.

(22) At the suggestion of the assessors the first respondent (BCC) aborted the recruitment exercise and decided to re-advertise for the post of property maintenance manager.

(23) The claimant alleges that around 7 September 2006 Jim Ritchie, assistant manager mechanical, told a number of staff at Duncrue Street that the fourth respondent (George Wright) had stated on a number of occasions to the building services staff that, “.. No one from property care would ever be in charge of his boys.”

(24) Both the claimant and Gerry McFall sought feedback from the September assessment. Due to the location of AS Associates in England and the proximity of the second recruitment exercise both were offered feedback by phone. Gerry McFall accepted the offer of feedback by phone. The claimant declined feedback by phone as he wanted face to face feedback. He did not receive feedback before the second recruitment exercise. The claimant relies on the lack of feedback as evidence of religious discrimination.

(25) In October 2006 the first respondent (BCC) re-advertised the post in the local newspapers and in a specialist journal. The same procedure was followed. The assessment was again carried out by AS Associates though the assessors on this occasion were Michael Brown, Lynne Jack and Barry Preedy. The assessors again came from England.

(26) Three candidates were invited for assessment, the claimant, Gerry McFall and William McIntaggart and they scored respectively 20, 26 and 23. All three went through to the interview stage.

(27) The interviews took place on 28 November 2008 before a panel comprising the third (Stanley Black) and fourth (George Wright) respondents and Rose Crozier, a Catholic. The claimant believes that the fourth respondent (George Wright) should not have been on the interview panel following the disputed assurance to that effect given by the second respondent (Trevor Salmon). He further contended that the interview process was a sham and that the questions were designed to facilitate the success of Gerry McFall, the fourth respondent’s (George Wright) preferred candidate.

(28) The claimant was unsuccessful at interview. The marks of the three candidates were based on the score from the assessment process and the interview. The marks attained by the three candidates were, the claimant 54, William McIntaggart 61 and Gerry McFall 72.

(29) Gerry McFall was appointed property maintenance manager. He comes from an electrical contracting background and is Catholic.

(30) The claimant attacks the recruitment process as being discriminatory against him on the basis of his religion.

(31) The claimant criticises the questions asked at the interview as being general and not requiring detailed and technical answers which the claimant alleges favoured Gerry McFall.

(32) In support of his claim for religious discrimination the claimant refers to a number of incidents that occurred or came to light after the interview process on 28 November 2006. The Tribunal does not place any weight on these incidents as they cannot have contributed to the allegation of religious discrimination culminating in the interview of 28 November 2006.

(33) Reliance is placed by the claimant on other factors as supporting his claim for religious discrimination which include:-

(a) The professional qualification for the post of property maintenance manager was not mandatory but desirable to facilitate the candidature of Gerry McFall.

(b) That at the claimant’s tier, prior to restructuring, there was an imbalance of Catholic representation. At the claimant’s tier in the operational services section and corporate services department there were 11 managering posts two of which were held by Catholics.

(d) The fourth respondent (George Wright) was opposed to the claimant getting the post of property maintenance manager from the outset and had a favoured candidate in Gerry McFall.

(34) In the claimant’s new post as technical support manager he can no longer satisfy the continued professional development record sheet required of an architect by the RIBA. As a consequence he has suffered a detriment.

(35) By reason of the claimant’s concerns regarding the categorisation process and the alleged religious discrimination the first respondent commissioned an investigation to be carried out by Philip Lucas who was not at the time an employee of the first respondent (BCC).

The report was completed after the alleged discrimination occurred. Mr Lucas concluded that the categorisation process had not been applied correctly to the claimant but there was no evidence of religious discrimination.

The investigation report was delivered to an officer within the first respondent (BCC) who has not accepted its findings.

Not surprisingly both parties sought to use those conclusions that supported their contentions.

5. (1) It is unlawful to discriminate against another on the ground of religion or political opinion (Article 3(7) Fair Employment and Treatment (Northern Ireland) Order 1998).

(2) Discrimination on the grounds of religion or political opinion is to treat someone less favourably than another on the ground of religion or political opinion (Article 3(2)(a) Fair Employment and Treatment (Northern Ireland) Order 1998).

(3) It is for the claimant who complains of discrimination on the grounds of religion or political opinion to prove, on the balance of probabilities, facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part III or which by virtue of Article 35 or 36 of the Fair Employment and Treatment (Northern Ireland) Order 1998 is to be treated as having committed such an act of discrimination against the claimant (Article 38A Fair Employment and Treatment (Northern Ireland) Order 1998).

(4) The Northern Ireland Court of Appeal in McDonagh and Others v Samuel John Hamilton Thom T/A The Royal Hotel Dungannon [2007] NICA 3 stated that when considering claims of discrimination, Tribunals must have regard to the burden of proof. The correct approach to the burden of proof in all discrimination claims is that set out in the Annex to the decision of the English Court of Appeal in Igen v Wong [2005] 3 All ER 812.

In the McDonagh case the Northern Ireland Court of Appeal recommended that Tribunals adhere closely to the guidance in Igen.

“(1) Pursuant to s 63A of the SDA, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of PtII or which by virtue of s 41 or s 42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as ‘such facts’.

(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that 'he or she would not have fitted in’.

(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.

(5) It is important to note the word ‘could’ in s 63A(2). At this stage the Tribunal does not have to reach a definitive conclusion that there was an act of unlawful discrimination. At this stage a Tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

(6) In considering what inferences or conclusions can be drawn from the primary facts, the Tribunal must assume that there is no adequate explanation for those facts.

(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s 74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within s 74(2) of the SDA.

(8) Likewise, the Tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to s 56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.

(10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.

(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since ‘no discrimination whatsoever’ is compatible with the Burden of Proof Directive.

(12) That requires a Tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.

(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a Tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.”

“In addressing this question, it would be necessary for the judge to bear a number of ancillary issues in mind. First, that it is unusual to find direct evidence of discrimination. Secondly, that the conclusion on the preliminary issue will usually be a matter of inference to be drawn from the primary facts. Thirdly, it must be clearly understood that the plaintiffs do not have to discharge a final burden, merely whether on the facts as found, it is possible to draw the inference of discrimination and finally it must be assumed at this stage that no adequate explanation for the discrimination exists.”

“She [Madarassy] only has to prove facts from which the Tribunal “could” conclude that there had been unlawful discrimination by Nomura, in other words she has to set up a “prima facie” case.”

“I am unable to agree with Mr Allen’s (counsel for the appellant) contention that the burden of proof shifts to Nomura simply on Ms Madarassy establishing facts of a difference in status and a difference in treatment of her.”

“The court in Igen v Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the Tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. 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.”

The learned Lord Justice elaborated on “could conclude” at paragraphs 57 and 58:-

“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 complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory “absence of an adequate explanation” at this stage…., the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by section 5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment.

The absence of an adequate explanation for differential treatment of the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent.”

“Section 63A(2) 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 situations with which the 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.”

(7) To succeed in a claim for discrimination on the ground of religious belief or political opinion a claimant must show that the respondent treated him less favourably than he treated or would treat other persons on the grounds of religious belief or political opinion.

In comparing the cases of persons of different religious belief or political opinion the relevant circumstances in the one case must be the same or not materially different from the other.

(8) In Shamoon v Chief Constable of the RUC (HL) [2003] ICR 337 the House of Lords gave helpful guidance to Tribunals faced with the task of assessing whether a claimant has established the evidentiary ingredients to prove discrimination. Lord Nicholls stated at page 342 paragraph 12;-

“The most convenient and appropriate way to tackle the issues arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case. There will be cases where it is convenient to decide the less favourable issue first.”

(9) In considering the less favourable treatment element Lord Hope stated in Shamoon at page 356 paragraph 54;-

“…The question is whether the way in which the applicant was in fact treated was different from the way the other chief inspectors would have been treated if they too were persons over whom Superintendent Laird had responsibility and the complaints and representations had been directed against them. If the answer to that question is yes, and there is no other explanation, it can be inferred that she was treated less favourably than they would have been on the ground of her sex.”

“…Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.”

“….. This is on its face so extraordinary a proposition that one must look for some evidence to support it or some compelling evidence why it might be accepted …..”

6. (1) The claimant alleges that the religious discrimination against him was in relation to the public recruitment exercise carried out by the respondents for the post of property maintenance manager.

(2) Much of the evidence from the claimant addressed deficiencies in the categorisation process. There appears to be some merit in some of the criticisms. But the claimant does not seek to impugn the execution of the categorisation process as part of the religious discrimination he suffered. Rather he told the Tribunal that the application of the categorisation process provided the opportunity to discriminate against him.

(3) The deficiencies in the categorisation process are therefore not part of the discrimination claim.

(4) The successful candidate for the post of property maintenance manager, Gerry McFall is a Catholic and the claimant is a Protestant so the claimant has established a difference in status.

Undoubtedly had that requirement been mandatory Gerry McFall would not have been shortlisted. However the respondents advanced a plausible explanation for its removal i.e. that they were seeking someone with managerial experience with a background in building not someone highly qualified in a building discipline. This contention was not challenged.

(c) That the tests at the assessment were general in nature rather than technical in order to favour Gerry McFall. No evidence was adduced to support the contention that this favoured or would favour Gerry McFall or have an adverse impact on the claimant.

Further the respondents sought to advertise widely for the post of property maintenance manager which tends to suggest they did not have a favoured candidate.

In addition after the first assessment they abandoned the process and re-advertised despite the fact that the alleged favoured candidate Gerry McFall had scored highest. On the face of it this does not appear to be the action of someone promoting the candidature of Gerry McFall.

(d) That the interview itself was discriminatory. No attempt was made to show how the interview or the questions asked favoured Gerry McFall and disadvantaged the claimant.

(e) That the general nature of the questions posed favoured Gerry McFall over the claimant. No evidence was adduced to support this assertion.

(f) That the lack of feedback to the claimant by A S Associates from the aborted first recruitment exercise discriminated against the claimant.

This assertion does not stand up to scrutiny as the claimant was offered verbal feedback, as was Gerry McFall. He chose not to accept verbal feedback whereas Gerry McFall did. The lack of feedback was a result of the claimant’s choice.

(7) The Tribunal is not persuaded that the claimant’s treatment was on the basis of his religious belief. In so concluding the Tribunal was influenced by the following matters;-

(a) The claimant’s case is that as he was clearly a better candidate than Gerry McFall and the latter was a Catholic it must have been religious discrimination.

(ii) that there was a hostile attitude towards his former property care department which again is not per se unlawfully discriminatory.

(b) There is no evidence to suggest that the assessment was carried out by persons who treated the claimant less favourably on the basis of his religion.

(c) The imbalance argument while attractive was only mentioned in cross-examination by the claimant for the first time. However if it had any merit and was the reason for action in the new structure it produced the wrong result.

There were four senior posts two held by Catholics and one by a Protestant. Therefore the property maintenance manager post should have gone to a Protestant and not a Catholic.

(d) With the exception of Rose Crozier all the participants in the alleged discrimination against the claimant were Protestant.

(f) The claimant makes no criticism of Rose Crozier’s participation in the interview yet she marked him the lowest.

(g) The fourth respondent (George Wright) scored the claimant the highest of the three interviewers yet he is allegedly the orchestrator of Gerry McFall’s candidature.

(h) As Carswell LCJ, as he then was, pointed out in Chief Constable of the RUC v Sergeant A [2000] NI261, that where discrimination is alleged by co-religionists, as must be the case here, there must be evidence to support it or some compelling reason to accept it. In this case there is no evidence to support it nor any compelling reason as to why it should be accepted.

(i) There is a very plausible explanation for the difference in treatment afforded to the claimant that at the assessment and interview he did not perform as well as Gerry McFall.

(j) Accordingly the claimant has not adduced evidence sufficient to shift the burden of proof to the respondents and accordingly his claim for discrimination on the ground of religion is dismissed.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Kirkpatrick v Belfast City Council [2008] NIFET 96_07FET (13 November 2008) URL: http://www.bailii.org/nie/cases/NIFET/2008/00096.html Cite as: [2008] NIFET 96_07FET, [2008] NIFET 96_7FET

Fair Employment Tribunal Northern Ireland Decisions

CLAIMANT: Ivan Kirkpatrick

DECISION

Constitution of Tribunal

The Claim and Defence