FAIR EMPLOYMENT TRIBUNAL
CASE REF: 161/04 FET
CLAIMANT: Joseph Bowers
RESPONDENT: Amicus (MSF)
DECISION
The unanimous decision of the Tribunal is that the claimant was not discriminated against on the grounds of his political opinion and affiliation.
Constitution of Tribunal:
Chairman: Ms Crooke
Members: Mrs Adams
Mrs Lewis
Appearances:
The claimant appeared in person and represented himself.
The respondent was represented by Mr G Daly, Solicitor, of Francis Hanna & Company, Solicitors.
Sources of evidence
- The Tribunal had witness statements from the claimant and from Mr Laurence Galbraith and Mr Edward Millar on behalf of the claimant. The claimant, Mr Galbraith and Mr Millar all gave evidence to the Tribunal. The respondent had witness statements from Judy Box, Roger Jeary, John Maginnes, Michael Sharpe, Jack Warner, Peter Williamson and Gerry Hanna and all those persons attended the Tribunal to give evidence in person. Additionally, the panel had a bundle of agreed documents before it.
The claim and the defence
- The claimant claimed that he had been discriminated against on the grounds of his political opinion and affiliation in that he was not selected for the position of Regional Secretary in a selection process which took place in December 2003 and also said that he was treated less favourably than Mr Martin Stroud, Mr Steve Tweed and Mr Walter Wilson on the ground of political opinion and affiliation in the arrangements for determining who should be offered the position.
- The respondent denied this claim.
The relevant law
- The relevant law is found in the Fair Employment and Treatment (Northern Ireland) Order 1998 ('the 1998 Order') and in particular in the following Articles:-
"19 – (1) It is unlawful for an employer to discriminate against a person, in relation to employment in Northern Ireland –
(a) where that person is seeking employment –
(i) in the arrangements the employer makes for the purpose of determining who should be offered employment; or
Article 38A of the Fair Employment and Treatment (Northern Ireland) Order 1998 provides that:-
"Where on the hearing of a complaint under Article 38, (claim to the Fair Employment Tribunal) the complainant proves facts on 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 unlawful discrimination or unlawful harassment against the complainant.
The Tribunal shall uphold the complaint unless the respondent proves he did not commit, or as the case may be, is not to be treated as having committed that act."
The Tribunal also had regard to the cases of:-
Igen v Wong [2005] EWCA 142
Madarassy v Nomura International PLC [2007] EWCA Civ 33
Anya v University of Oxford [2001] IRLR 377
Findings of fact
- The claimant has identified his political opinion and affiliation:-
he holds left wing Republican views;
he is a member of MSF Unity Left/Amicus Unity Gazette; and
he is a member of the Communist Party of Ireland
- The respondent is a trade union. Its name at the time of the disputed selection process was Amicus (MSF). At the time of dispute of the selection process in late 2003, the respondent was going through a process of amalgamation with the AEEU Union which was with effect from 1 January 2004 to result in MSF and AEEU amalgamating to form the Union, Amicus. In the transitional period before full amalgamation, the AEEU Union was known as Amicus (AEEU) and the MSF Union was known as Amicus (MSF). The MSF Union itself came into being as a result of the amalgamation of the ASTNS and TASS Unions. The respondent is referred to as the 'Union'.
- Within the MSF Union, the claimant contended that a political conspiracy existed to rid the MSF Union of all persons having broadly communist views. As evidence for this contention, he produced various publications in which Roger Lyons, the General Secretary of the Union, was critical of the persons in the union who held leftist views. The Tribunal also viewed a memorandum from Roger Lyons to the claimant dated 6 December 1996 in which he ascribed certain views to the claimant and to the Communist Party of Ireland. The claimant also produced a list in which persons having employment in the MSF Union were divided into 'friends' and 'The Rest'. The name of the claimant appears in this latter group. The Tribunal is not able to regard these items as evidence of there being a political conspiracy against those who supported communist views in general and the claimant in particular. There was no evidence before the Tribunal as to the provenance of the list dividing employees of the union into 'friends' and 'The Rest'. On the balance of probabilities, the Tribunal considers that the explanation of Mr Warner (a member of the selection panel) that the literature and other media reports before the Tribunal were indicative of Roger Lyons' stance in his campaign to become General Secretary of the Union, is more likely than not to be true. Whilst the Tribunal was referred to a memorandum from Roger Lyons to the claimant dated 6 December 1996, the Tribunal was not provided with the claimant's communication to Mr Lyons to which this memorandum was a reply, and does not consider that it has adequate material upon which to reach a finding as to the exact significance of this exchange. Generally on this point, the Tribunal was only able to find, from the evidence before us, that there were two opposing factions within the respondent. The faction with which the claimant aligned himself was known as 'Unity Left'. The opposing faction was known as 'MSF for Labour'.
- It was alleged by Mr Laurence Galbraith, a witness for the claimant, that after Roger Lyons' appointment as General Secretary in and around 1991 the claimant became a main target of Roger Lyons and MSF for Labour's campaign to put pressure on employees who were considered political opponents.
- The claimant's employment as a Regional Officer with the Union was terminated in 2002 and a Compromise Agreement entered into.
- In July 2003, it was decided to make a Regional Officer for Belfast. The post was advertised late in August 2003 with a closing date of 1 October 2003. At this time, there was uncertainty as to whether or not the selection would be proceeded with. This was because of uncertainty caused by the forthcoming completion of the merger process. It was decided by Amicus (MSF) and Amicus (AEEU) that they would both make whatever appointments they needed separately before the completion date for the merger.
- At some time during October 2003, Mr Roger Jeary, the newly-appointed Director of Personnel for the Union, created a document that acted as his aide-memoir for the selection process for the appointment of Regional Officer Belfast. The claimant attacked this document (which was undated; but released by Mr Jeary who authored the document and believed it to have been written during October 2003) on the grounds that it read as though it had been composed after the panel had been selected, and as if it were the minutes of a meeting. Given that the document contained two suggestions for the panel, Olivia Roche and Beverley Heaney, who did not ultimately sit on the panel, the Tribunal considers that it is more likely than not on the balance of probabilities that Mr Jeary's explanation that had the document postdated the NEC meeting of 1 November 2003, he would have included Judy Box as a panel member rather than Olivia Roche and Beverley Heaney to be true.
- Mr Jeary's evidence was that he had, as part of his aide-memoir, put together a list of names of suggested panel members for the Northern Ireland appointment and this had been approved by Lucy Anderson of the Union, an Assistant General Secretary to whom he reported. We do not accept the contention of the claimant that because Lucy Anderson was not present when the list was read out by the General Secretary, that she had nothing to do with the drawing up of the list. The claimant's contention was that the list had been compiled by Roger Lyons, from people who were politically 'safe'. At the National Executive Committee ('NEC') meeting of 1 November 2003, it transpired that some of the people that Mr Jeary had identified as panel members were not going to be available. There were some discussions with various people, and one of those was believed by Mr Jeary to be Mr Lyons, as to who might be available. In the end, Judy Box, a member of the NEC replaced Olivia Roche and John Maginnes a member of the Executive Committee Ireland ('ECI') replaced Beverley Heaney. Michael Sharpe who was the original suggestion by Mr Jeary was eventually able to sit on the panel. The Tribunal was not provided with any credible evidence other than assertion and allegation on behalf of the claimant that Mr Roger Lyons had more than at best a peripheral role in the selection of the panel for his appointment.
- It had been the practice of the Union to have selection panels of seven members. Indeed in his aide-memoir, Mr Jeary raised the possibility of there being seven members in the selection panel for the Northern Ireland appointment. However, Mr Lyons read out that there was to be a panel of five to the NEC meeting on 1 November 2003 and this was ratified by that meeting.
- There was some correspondence from Mr Galbraith to Mr Jeary indicating that he considered proceeding with a panel of five was a breach of the agreement between the NEC and the ECI that appointments in Ireland would be made by a panel of seven persons of whom the majority of members came from Ireland. Mr Galbraith also contended that having a panel of five persons would breach the Fair Employment Legislation in Northern Ireland. There was a difference in the evidence between Mr Galbraith and Mr Jeary concerning the alleged agreement about selection panels. Mr Jeary contended that he had no knowledge of the detail of such an agreement. Mr Galbraith contended that following the merger of TASS and ASTNS in 1988, there was an agreement reached between the NEC and the ECI at that time that all selection panels to appoint full-time officers in the Ireland Region of MSF would consist of seven voting members with a majority coming from the Ireland Region. In actual fact the composition of the panel as selected did reflect that there was a majority of members from the Ireland Region, ie Laurence Galbraith, John Maginnes and Michael Sharpe. Furthermore, Mr Jeary checked with the Equality Commission to see whether sitting with a panel of five would breach Fair Employment Legislation. He was told by the Equality Commission that this was not an issue. The claimant and Mr Galbraith cited many examples of panel selections being composed of seven members. However, rarely, if at all, did they identify the dates of those selections. Furthermore, Mr Galbraith attacked the respondent for sourcing the services of Mr John Maginnes as a panel member through Mr John Tierney the National Secretary and through Mr Michael Sharpe. Mr Galbraith contended that there was an agreement that the ECI should nominate their panel members and that this should not be delegated to any other individuals. No written evidence to support this contention was produced, and although there was some correspondence from Mr Galbraith to Mr Jeary, there was no evidence before the Tribunal that Mr Galbraith raised his complaint about abrogation of the rights of the ECI with the ECI. While it was certainly the case that it was the practice to have selection panels composed of seven persons, it was not challenged by or on behalf of the claimant that the appointment of the Regional Officer in Belfast took place at a time when time was of the essence (ie before total integration with AEEU). On the balance of probabilities, the Tribunal considers that Mr Jeary's explanation that there had been some difficulties with availability of members and due to the need to appoint members of the selection panel to expedite the appointment, it was decided to proceed with five members, is more likely than not to be true. The need to get appointments made quickly towards the end of 2003, was certainly evidence which was not challenged by or on behalf of the claimant.
- After the panel had been selected, a question arose over the suitability of Mr John Maginnes to sit as a panel member. This was because Mr Jim Norney, an applicant for the position, had asked that Mr John Maginnes should not sit on the selection panel as he was in the same sector and in the same branch of the Union as himself. As Jim Norney withdrew his application for the post, Mr Jeary considered the problem had been solved and kept Mr Maginnes on the panel. Mr Norney's objection to Mr Maginnes was dated 20 November 2003, but in the details panel was sent on 10 November. As Mr Jeary was prepared to consider removing Mr Maginnes at that time, it was argued by the claimant that his failure to comply with Mr Galbraith's requirements in his correspondence to him of 13 – 18 November 2003 on the grounds that the panel had already been appointed was not credible. Mr Galbraith took it upon himself to contact a number of ECI members to see if they were available to sit on the panel and informed Mr Jeary of their availability. The Tribunal accepts Mr Jeary's explanation that the reason why he did not consider Mr Galbraith's nominees to the panel was that the panel had already been appointed, and because he was prepared to change one member of the panel because of a potential conflict of interest on request from an applicant, it did not necessarily mean that he accepted this always had to be the case. He pointed out that in Northern Ireland it is almost inevitable that panel members will be familiar with some of the candidates for a selection process.
- At hearing, the claimant also sought to attack the fact that his line manager, Mr John Tierney, the National Secretary of the Union for Ireland, had had a role in the selection of Mr John Maginnes as a panel member. He said that Mr Jeary ought to have known that it was unfair for him to be involved as he had taken disciplinary action against the claimant in the past. The claimant spent some time disputing that Mr Jeary had represented him in disciplinary action taken by Mr John Tierney against him. However, he eventually put it to the witness Mr Jeary that when representing him (in the disciplinary action) he had always put forward a forthright defence on behalf of the claimant. From this we infer that the claimant accepted that he had been represented in the past by Mr Jeary in his dealings with the Union. Mr Jeary took the view that while Mr John Tierney had certainly taken disciplinary action against the claimant in the past, that was a process to be dealt with. As Mr John Tierney's only involvement in the December 2003 selection process was to source panel members, one of whom Mr Jeary had already thought of, and as he was to be a non-voting observer of the proceedings, he did not see how Mr Tierney would have any role, and therefore any influence in the choice of the panel. Furthermore, Mr Jeary was not aware of any undue hostility between Mr Maginnes and the claimant. On the balance of probabilities, we consider it more likely than not that Mr Jeary's reasons for not removing Mr Maginnes were that the objections from Mr Galbraith came relatively late in the process, that Mr Jim Norney – the applicant who alleged a conflict of interest had withdrawn and that he was not aware of any undue hostility with Mr Maginnes. In general, whilst Mr Jeary indicated that he was aware that Mr Roger Lyons and the claimant did not get on, and was aware that he had represented the claimant in disciplinary action against the claimant by Mr John Tierney, we did not find that this was any evidence of a political conspiracy to load the panel in the process against the claimant. We are supported in reaching this finding by the fact that the involvement of Mr Lyons and Mr Tierney was in both cases peripheral. We attach little weight to the material allegedly showing that Jerry Shanahan, a previous National Secretary, took a considerable role in a previous selection process involving a successful candidate called Kevin McAdam. The claimant said that this was evidence that Mr Tierney had a considerably greater role in the selection process. We discount the allegation and do not accept that role of a person in a previous selection is acceptable evidence of the fact where a different person and a different official was similarly involved in a different selection process. In reaching this conclusion we are supported by evidence from Mr Sharpe and Mr Maginnes that Mr John Tierney had very little involvement in the actual selection process with which we are concerned. There was no credible evidence to counter this. The one person who could have given evidence on the position, was Mr Laurence Galbraith, who left before the interviews commenced due to a family crisis.
- The Tribunal in reaching its decision has considered it useful to make some findings of fact about the past relationship of the claimant with each panel member and with Mr Jeary to investigate whether or not anything in the past relationships with the claimant, had operated to the detriment of the claimant in his selection process.
In reaching these findings of fact, we have been particularly concerned to examine whether or not Mr Jeary and the four voting members were long-term senior activists or supporters of MSF for Labour, which the claimant alleged was the body that conspired against him to prevent him from being selected for the post of Regional Officer in December 2003:-
(a) Mr Roger Jeary
As Director of Personnel for the Union, Mr Jeary was the person who made the arrangements to set up and oversee the selection panel. The Tribunal were not able to find any evidence to suggest that the claimant had any previous difficulties with Mr Jeary. Indeed, the claimant did not deny that Mr Jeary had been asked by the Union to approach him to facilitate the signing of a Compromise Agreement as he was regarded in the Union as having a reasonable working relationship with the claimant. As we have also previously noted, the claimant put it to Mr Jeary that he had always mounted a forthright defence of him when the claimant was subject to disciplinary action. Mr Jeary's evidence was that he had nothing to do with MSF for Labour and no evidence was put to counter this assertion. Accordingly, we find that there was no history of past difficulties between the claimant and Mr Jeary which have impacted on how Mr Jeary ran the selection process. We also find that Mr Jeary was not motivated by political prejudice in the actions he took, as he was not a member or supporter of MSF for Labour.
(b) Ms Judy Box
Ms Judy Box was asked to replace Olivia Roche, as she was member of the NEC of the Union. The claimant alleged that she was a member of MSF for Labour and her reward for supporting MSF for Labour was that she was put on the Finance & General Purposes Committee of the Union. It was alleged that she would not have been placed on such an important committee if she had not supported MSF for Labour. There was no evidence to suggest that there was any merit in this assertion and the Tribunal considers that Ms Box's explanation for her membership of this Committee, that she was a woman, is more likely than not on the balance of probabilities to be true. It was certainly the case that Ms Box voted to have the claimant disciplined some years prior to the selection process, but there was no evidence provided that this was on the grounds of her association with MSF for Labour. She denied that she was a member or supporter of this body and no credible evidence was produced to enable a contrary view to be taken. Accordingly, the Tribunal finds that Ms Box was not a supporter or member or activist in MSF for Labour and was not motivated by political prejudice arising from such an affiliation in her actions in the selection process.
(c) Mr John Maginnes
Mr Maginnes was alleged to be a member of MSF for Labour, but it seemed to the Tribunal that a substantial part of the basis for this allegation was a contention that in a previous Tribunal case a Barrister acting for the respondent had 'admitted this' in his opening to the Tribunal. Mr Maginnes was not a witness at the hearing so was unable to shed any light on this contention. Without the Barrister in question being called to give evidence as to the nature and extent of his instructions and from whom they issued, the Tribunal does not consider that it has any evidence other than the allegation made by the claimant upon which to make a finding that Mr Maginnes was a member of MSF for Labour, and declines to do so. Mr Maginnes admitted that he supported some, but not all, of the MSF for Labour policies especially Mr Roger Lyons' attempt to move the Union closer to the Labour Party in the hope that persons in Ireland would be able to become members of the Labour Party. However, he also gave evidence that he disagreed with some of the policies of the Communist Party just as he disagreed with some of the policies of the Labour Party. The Tribunal finds accordingly that the issue of whether or not Mr Maginnes supported MSF for Labour depended on the policy in question – he was not a member of that faction or an activist. Mr Maginnes indicated that he did have different political views to those held by the claimant, but that he did not and would not discriminate in an application for paid employment by anyone. Mr Maginnes' stated position as a trade unionist was that if a person had paid employment that person was more able to deal with problems, with life's tribulations, and that "we protect jobs first and then try to improve conditions". However he agreed he would have tried to stop Communists being elected to positions of power and influence in the Union, which he regarded as being part of the cut and thrust of political life. Mr Maginnes confirmed that no one had tried to influence how he voted in the selection process, he had not been given any instructions on how to vote by Mr Roger Lyons and he was not conscious of any bias against the claimant within the panel. The claimant was unable to produce any credible evidence to counter this position. The Tribunal attached little weight to the allegations in the claimant's witness statement that Mr Michael Sharpe and Mr John Maginnes were part of a group who intended to try to provoke the claimant into rash behaviour after a regional meeting or at a weekend school. The Tribunal also attached little weight to the allegation that Mr Martin Stroud and Mr Maginnes had said that they had to get the claimant out of the Regional Office after a meeting in Queen's University. No dates or times were attached to either allegation. Neither person who allegedly reported these incidents to the claimant came to the Tribunal to back up his evidence, which the Tribunal was only able to regard as hearsay and of little value. Additionally, there was an allegation from the claimant that Mr Maginnes was guilty of some wrongdoing in relation to his role as a panel member in the Kevin McAdam selection process. The claimant's allegations appeared to centre round the fact that Mr Steve Tweed (the successful candidate in the December 2003 selection) was not short listed, and Mr Martin Stroud (a work colleague of Mr Maginnes' and an applicant in the December 2003 process) was short listed, making Mr Maginnes' motivation in short listing Mr Stroud in the Kevin McAdam process questionable. The Tribunal does not consider that a previous selection process in which the claimant was not a party has any relevance to the current selection process and attach little weight to the allegations made by the claimant about this matter. Accordingly, based on the foregoing, the Tribunal considered that it was more likely than not, on the balance of probabilities, that Mr Maginnes was not motivated by political prejudice in fulfilling his role in the selection process of December 2003.
(d) Mr Rodney (Jack) Warner
Mr Warner was the Sitting President of the Union and chaired all selection panels. Mr Warner was previously Health & Safety Officer for the North West Region of the Union in England. His evidence which was not contraverted by the claimant was that at Branch Level after an initial settling in period, Unity Left and MSF for Labour worked together, in his region. Mr Warner accepted that he was the MSF for Labour candidate for Vice President in 2002 and subsequently became President from June 2003 until December 2003. He did attend meetings of MSF for Labour from the end of 2000. He denied that he supported a crusade or action against the claimant over a long period of time because of his political affiliation, and indeed, it seems the height of the allegations of the claimant was that Mr Warner associated with Mr Bob Braddock who seemed to be a leading activist in MSF for Labour. Mr Warner said that Mr Bob Braddock was not a person he went looking for and that he could not remember the claimant's stance in his presentation to his Regional Council. Based on the foregoing, the Tribunal finds that although Mr Warner seemed to have a greater level of connection with MSF for Labour than Mr Jeary, Ms Box or Mr Maginnes, for example, it was more likely than not, on the balance of probabilities, that this did not have any role to play in how he conducted the selection process of December 2003.
(e) Mr Michael Sharpe
(i) The claimant had a considerable number of allegations to make against Mr Sharpe arising from their past relationship. Mr Sharpe's knowledge of MSF for Labour appeared to be arising from the fact that he had read material from various sides and factions in the union, and contended that his role was to represent his membership. Sometimes the interests of his members coincided with those of MSF for Labour and sometimes they did not. He never denied that some of his supporters might have supported MSF for Labour, but confirmed that he had never stood for elected office on a MSF for Labour platform. In short, Mr Sharpe was aware that there were factions in the MSF Union, but did not have any conversation about the selection process with Mr Roger Lyons and was not instructed by him to ensure that the claimant did not get the post. There were and always have been differences of opinion about policy in the Regional Councils and Executive Committee for Ireland ('ECI') for years, but he could not say that the differences in the Ireland Region corresponded with categories MSF for Labour and Unity Left. Once again, the claimant did not produce any credible evidence to suggest any greater degree of involvement with MSF for Labour on the part of Mr Sharpe. Accordingly the Tribunal finds that it is more likely than not, on the balance of probabilities, that any real or perceived affiliation to MSF for Labour on the part of Mr Sharpe had not any operative part to play in the selection process.
(ii) The claimant alleged that Mr Sharpe blocked him receiving a retirement presentation when he retired from the Regional Council. In response, Mr Sharpe said that he took the sense of the meeting and that was that enough had been done. It was apparently not uniform policy that every retiring officer received a presentation and Mr Sharpe cited examples of those who did not. He also pointed out that those who raised the issue with him, had the capacity to push the matter to a vote and failed to do so. The Tribunal does not find this allegation to be acceptable evidence of the failure to make a presentation and reasons why.
(iii) The claimant alleged that Mr Sharpe denied him support against harassment from the Regional Council when it discriminated against him in the selection of delegates to the ICTU Biennial Conference. Mr Sharpe responded to this that it was for the full-time officials to decide who was to attend the ICTU Conference and not something in which the ECI had any role to play. The Tribunal accepts this explanation.
(iv) The claimant alleged that Mr Sharpe investigated his complaint that he was challenged in his position as MSF nominee and Sitting President of the CSEU. The manner of Mr Sharpe's investigation was such that there was no definitive conclusion reached which in turn facilitated further challenges to the claimant in his position as President. Mr Sharpe indicated that he had investigated the matter in an attempt to try to bring some resolution to the bad feelings in meetings. He had talked to the persons who contended that they had nomination rights and had perused various union rule books and other union documentation. He was not able to come to any definitive conclusion, the matter was complicated especially by the fact that it was alleged that some rights still existed even after various union amalgamations. There was no detail put to Mr Sharpe concerning how this failure to come to a conclusion adversely affected the claimant's position and facilitated future challenges – indeed there were no particulars of this in the claimant's witness statement. As this is the case, the Tribunal has insufficient material from which to find that Mr Sharpe in any way disadvantaged the claimant's position.
(v) As set out above, it was alleged by the claimant that he had been told by Mr John Gibson that Mr Michael Sharpe and Mr John Maginnes were part of a group trying to get him drunk and hence to behave rashly. The Tribunal is only able to regard this as hearsay evidence and of little value as Mr Gibson did not attend to back up the claimant's evidence with his own.
(vi) It was also alleged that the claimant received a written warning because he spoke to the media, against Union policy, regarding the Partnership Agreements. There had been a change in Union policy. Originally, the union have been opposed to the Partnership Agreements. However, a proposed agreement had come out of the talks and the ECI had to consider its position on it, and it deemed it appropriate to hold a workplace ballot. Members voted in favour of the Partnership Agreement in the workplace ballot. The claimant issued a Press statement against the Agreement without having it approved by the ECI. There were no exact dates attached to the sequence of events in this matter. Even if the claimant had issued his Press statement before the workplace ballot, as alleged, it was still made without the consent of the ECI who had decided to issue no guidance on the matter and let it be decided by the members through their workplace ballot. All other full-time officials respected that decision of the ECI. The claimant was disciplined for this, but Mr Sharpe said that the ECI and the Regional Council had no involvement in any disciplinary process, which happened purely as a result of Mr Tierney's memorandum. The Tribunal did not consider the fact that Mr Tierney copied his memorandum to Mr Sharpe to be credible evidence that Mr Sharpe authorised the memorandum, or the disciplinary action.
(vii) The claimant also said that he had drawn the attention of Mr Sharpe to discrimination against him in how he was reported in a Regional Council minute and asked for the minute to be changed. Mr Sharpe was accused of obstruction by the claimant. Mr Sharpe contended that the minute had been changed as requested, but the claimant denied this. However, there was no credible evidence of this produced to support the allegation of the claimant.
(viii) The claimant supported the nomination of a member of the SIPTU Union as a member of the Board of Dublin Port & Docks. This has not been validated by the ECI. This was also a source of complaint against Mr Sharpe by the claimant. Mr Sharpe explained that from time to time persons would have sought validation from the ECI and then a contribution to their campaign expenses. In this case, the ECI was not going to use MSF money for the campaign of a member of another union and did not validate the nomination. As the claimant did not give evidence of any absolute right to have nomination for a member of another union validated, the Tribunal considers that it has insufficient material upon which to make a finding. In making a finding that Mr Sharpe had a reasonable explanation for all the allegations made against him by the claimant, we wish to make it clear that we are not in any way at this stage conducting any sort of exercise in connection with movement of the burden of proof. While the claimant appears to have much that he held against Mr Sharpe, Mr Sharpe was able to give a rational explanation in connection with the allegations, and so we do not consider that anything in his past history with the claimant, would have operated to prejudice him against the claimant in his role in the selection process. We did not have any evidence, as opposed to allegations, to link him to MSF for Labour as alleged by the claimant.
- Once the panel was appointed, a meeting was held on 24 November 2003 to create a shortlist of the candidates. Mr Jeary, Ms Box, Mr Warner, Mr Maginnes, Mr Galbraith and Mr Sharpe were present at the meeting. The short listing produced five candidates for interview:-
Joe Bowers;
Steve Tweed;
Martin Stroud;
Mary-Jo McReynolds; and
Walter Wilson
Mr John Tierney was also in attendance.
- Mr Roger Jeary put together the questions that were to be asked by the panel and circulated them to the panel members. Whilst this may not have complied with established union practice, according to Mr Galbraith, it was to be remembered that Mr Jeary was newly in post and may have failed to adopt some of the existing practices. However, as it is not the case made by either side that this first list of questions was circulated to anybody other than the panel members, we do not see how this could operate to disadvantage the claimant.
- The interviews were arranged for 15 December 2003. Before the interview, Mr Jeary had re-worked the questions to be posed and the list of these was handed to each applicant some time before each interview.
- Each applicant was interviewed and made a personal presentation. Then the panel asked the set number of eight questions. Before any of the interviews started, Mr Galbraith was contacted by telephone and had to leave due to a family crisis. The panel decided to proceed taking account of the fact that all the candidates had prepared for the interviews and in at least one case had travelled from Scotland for the interview.
- The claimant was advised of the position of Mr Galbraith when he entered the interview room. The claimant asked if there was anything the panel needed to ask him arising out of this and Mr Jeary told him that there was not. The claimant was advised of the panel decision to proceed with the interview despite the departure of Mr Galbraith. The claimant then made his presentation for which he used overhead slides as the PowerPoint presentation facility was not working. The claimant's presentation ran for 12 minutes (which overran the allotted five minutes time for the presentation) and was asked the eight agreed questions. At the end of the interview, the claimant was asked if he had any questions to put to the panel and he asked "why was I made redundant?". Mr Jeary told him that this was not a matter for that panel. He then asked "why did Mr John Tierney speak to one of my referees?" He was told that the panel was not aware of this. Mr John Tierney himself made no comment. The claimant was then asked by Mr Warner if he was satisfied that the process he had gone through was a fair one. The claimant replied that he was not satisfied with the process for the following reasons:-
(a) the panel was not complete;
(b) the size of the panel; and
(c) the persons participating on the panel due to possible conflict of interests.
- The interview concluded and the other four candidates were interviewed. During the interviews, some members of the panel wrote more detailed notes than others. At the end of the interviews, the scores given were consolidated and the panel were asked if they had a candidate they felt they could appoint. The panel unanimously voted that Mr Steve Tweed was the successful candidate. Although Mr Maginnes also considered that Mr Martin Stroud had done equally well, he was content to accept the decision of the majority.
- As this was the case, there was no comment from Mr John Tierney or Mr Brian Gallagher, the observers of the process. Accordingly, we find that they had no role in the process and we are supported in that finding by the evidence of Mr Sharpe which was that they simply sat saying nothing.
- The panel had before it the score sheets in relation to each applicant for the position. There was no evidence of tampering with the scores, and from this the Tribunal draws the inference that the decision made was largely clear cut and there was no swaying of panel members.
- The panel unanimously agreed that the claimant's performance at interview was poor. Mr Warner explained that he had to work hard to pick out points from what the claimant said to the panel. Mr Maginnes found the claimant's answers to be evasive and quite often not on the point of the question. Mr Sharpe said that he did not give clear focused answers to the questions asked. Ms Box considered that the claimant did not answer some of the questions but gave a lecture – especially in relation to Question 4.
- No candidate received any mark in relation to their five minute presentation at the commencement of the interview.
- The claimant was not appointed to the position. Mr Steve Tweed was the successful candidate.
- Mr Jeary indicated that a motivating factor in selecting Mr Maginnes for the panel was that he had received equality training. It seems that any equality training given to this particular panel would have been of some age, and in future it would perhaps be prudent for the respondent to organise regular updates.
Conclusions
- At a Case Management Discussion on 21 February 2007, the issue to be determined by the Tribunal was identified as:-
"Whether the respondent treated the claimant less favourably than Mr Martin Stroud, Mr Steve Tweed and Mr Walter Wilson on the ground of political opinion and affiliation, in the arrangements for determining who should be offered the position and by not being offered the position of Regional Officer in the Autumn of 2003."
- The claimant raised a number of incidents of alleged unfairness which we have collated into a somewhat shorter set of questions:-
(1) Did Mr Roger Lyons hold a political bias against the claimant?
Mr Lyons did hold views that were different to those held by the claimant. He did campaign in the media against Communist influences in the union. However, we do not accept that any of the excerpts, be they media reports or pamphlets, allegedly produced by MSF for Labour refer to the claimant personally. The only document before the Tribunal that did so was a memorandum from Mr Lyons to the claimant copied to a number of people (including two of the panel members) which refers to the Communist Party and its various policies and links the claimant to that party. However, as we did not see the claimant's memorandum of 28 November 1996 which triggered that reply from Mr Lyons, we do not consider this would be a reliable document from which to draw any inferences.
(2) Did Mr Lyons seek to control the composition of the selection panel:-
(a) by restricting it to five members; and
(b) by in some way restricting the ability of the ECI to select its own complement on the panel?
Question (a) – the restriction of the panel to five members
It was certainly the case that previous panels had been composed of seven persons. However, these selections did not take place against the background against which the December 2003 selection took place. Both sides of the respondent – MSF and AEEU – had a number of appointments that had to be made before total integration of the Union on 1 January 2004. There was some difficulty in availability of panel members and Mr Jeary accepted that he may have spoken to Mr Lyons before the meeting. However, the fact remains that the five member constitution of the panel was ratified by the NEC in its meeting. If it was the case, that having a five member panel was such a highly unusual departure, we consider it more likely than not that the meeting would not have ratified this decision. As there was no evidence before us to suggest that the NEC as a whole was loaded against the claimant, we do not consider that we are able to draw any inference from the restriction of the numbers.
The Composition of the Panel
(b)(i) It was alleged by the claimant that Mr Lyons selected the panel. However, we saw no credible evidence to support this contention. At most, Mr Lyons had a peripheral role discussing what to do in the light of unavailability, though there was no firm evidence to support this contention other than Mr Jeary's supposition that he might have spoken to Mr Lyons. He did not really remember.
(b)(ii) There was no real evidence to suggest how restricting the number to five would have enabled Mr Lyons to control the outcome. We consider that proceeding down this route of argument, would lead to the panel doing nothing other than speculating what might have been the outcome had there been seven members, and we do not see how pure speculation can assist the Tribunal in reaching its decision.
(b)(iii) Did Mr Jeary restrict the composition of the panel by asking Mr Tierney to source members through Mr Michael Sharpe? Mr Michael Sharpe may not have been Secretary of the ECI at that time. However, there was nothing to suggest that this misapprehension was anything other than a genuine mistake on the part of Mr Jeary. There was definitely some agreement between the ECI and the NEC concerning constitution of the panel. If the Tribunal takes it that this agreement in practice meant that for an appointment in the Irish Region, the panel should have a majority of members from the ECI making the selection, then that is what was going to happen, because three out of the five panel members – Mr Sharpe, Mr Maginnes and Mr Galbraith all came from the Irish Region. There is no way that it could have been foreseen by anybody, that Mr Galbraith's mother would take ill and he would have to leave on the day of the interviews.
(b)(iv) There was some suggestion in the evidence that there was a practice of the NEC asking the ECI to nominate panel members. It was argued on behalf of the claimant that this constituted an agreement. There was insufficient evidence before the Tribunal to let it consider whether this was the nature of the agreement alleged. On the balance of probabilities, we consider it more likely than not that there may have been an operating practice that the NEC would ask for nominations but no formal agreement as such. However, as Mr Maginnes put it in his evidence, circumstances can sometimes dictate changes; there was nothing to suggest that the sourcing of panel members through Mr Michael Sharpe and Mr John Tierney, by Mr Jeary was motivated by anything other than a desire to get a panel put in place quickly to make the appointment. The background against which this appointment was made (the fast approaching total integration with the AEEU) was not challenged by the claimant. Furthermore, whilst Mr Galbraith did engage in a course of correspondence with Mr Jeary about Mr John Maginnes and questioning why Mr Galbraith's nominees were not put on the panel, the Tribunal was not made aware of him protesting to the ECI that its rights were being infringed. If Mr Galbraith believed this to be the case, would he not have protested to the ECI? The Tribunal considers it more likely than not on the balance of probabilities that he would have protested to the ECI rather than simply to Mr Jeary. Furthermore, the Tribunal was not provided with any evidence that suggested that Mr Jeary was in some way bound to adopt the suggestions of Mr Galbraith, either in his capacity as an NEC member or at all.
(b)(v) We are not able to draw any inference from the fact that Mr John Tierney had previously been involved in disciplinary action against the claimant. The claimant called his behaviour harassment and political discrimination, while the respondent regarded it as a process to be gone through. It was not denied by the claimant that Mr Tierney was his line manager. Even if Mr Tierney did harass the claimant, did politically discriminate against him and did contact the claimant's referee before the interviews even began, the Tribunal does not regard this as having any weight because Mr Tierney was not a voting member of the panel and there was no credible evidence to suggest that he had any impact on the decision ultimately made. The account of the conversation is only a hearsay account from the claimant. If he really felt that he had been less favourably treated on the grounds of Mr Tierney contacting his referee, it would have been open for the claimant to call his referee to give direct evidence of the conversation. We have noted that the claimant did not do so and have also noted that his referee was present in the Tribunal a number of times during the Hearing. As regards the general harassment and political discrimination claim against Mr Tierney, the documents to which the Tribunal were referred seemed largely to consist of documents on which Mr Tierney was asking for an explanation of the claimant's conduct. It was not disputed by the claimant that Mr Tierney was his line manager. It was not disputed that at least some of the documents referred to were documents involved in disciplinary processes, but we were not provided with any evidence from which we could conclude that Mr Tierney had harassed or discriminated on the grounds of political opinion against the claimant. The Tribunal was referred to two previous selection processes in which there appear to have been in one case interference by Mr Roger Lyons and in the other case a different National Secretary taking a more active part in the selection than his non-voting role would allow. The Tribunal is not able to attach any weight to the process in which Mr Lyons allegedly interfered. He may well have interfered in the 'Steve Smith' selection, but there was no credible evidence before the Tribunal to suggest that he had anything other than a peripheral role in the December 2003 selection. The 'Kevin McAdam' selection was also a process that was attacked by the claimant on the ground that it showed that Mr Sharpe and Mr Maginnes did not comply with Northern Ireland equality legislation in how they acted as panel members. This was an allegation made by the claimant which was unsupported by any objective evidence. The claimant took issue with how the 'Kevin McAdam' process was shortlisted. Accordingly, we attach very little weight if any to this process because it was a different recruitment process. It was a number of years prior to the recruitment in question. It was not exactly the same panel. The claimant was shortlisted in this case, and this was not a case about failure to shortlist.
(c) The claimant also seemed to attach some significance to the fact that the Equality Commission was not told about the alleged agreement between the NEC and the ECI regarding constitution of selection panels. We do not consider that this is of any relevance to the selection and do not see how speculation on what the Equality Commission might or might not have said is of assistance to us in deciding whether or not there had been political discrimination. The fact remains that Mr Jeary was told that the Equality Commission was not concerned about the numbers on the panel. Was the failure to tell the Equality Commission about the alleged agreement an attempt to hide Mr Lyons' involvement or in some way prejudice the claimant? We have no evidence before us that would lead us to draw this conclusion. We consider it is more likely than not on the balance of probabilities that the agreement was not referred because Mr Jeary did not know what the agreement was about.
- The claimant also specifically objected to Mr John Maginnes being on the panel. Another applicant had asked for him to be removed as he was a work colleague and he wanted to achieve the position on his own merits. Mr Galbraith also wrote to Mr Jeary saying that Mr Maginnes "….. has consistently in the past politically defamed one of the applicants who would see his participation as prejudicial". Mr Jeary was prepared to consider removing Mr Maginnes on the grounds that he was a work colleague of an applicant, and because he was prepared to do that in around 10 November 2003, the claimant considered that he should have removed Mr Maginnes on foot of Mr Galbraith's objections which commenced on 13 November 2003. We have found that Mr Jeary had not had any difficulties of any sort with the claimant in the past and was not acting under any instruction of the panel against the claimant. On the balance of probabilities we consider it more likely than not to be true that the reason why Mr Jeary did not carry out a wholesale reorganisation of the panel in response to Mr Galbraith's demands, was because it was relatively late in the process. Mr Galbraith's correspondence was between 13 and 18 November 2003 and the shortlisting meeting was set to take place on 24 November 2003. The other applicant withdrew his objection to Mr Maginnes, and Mr Jeary was not aware of any difficulty that the claimant might have had with Mr Maginnes other than that arising from the cut and thrust of political life.
- The claimant contended that Mr Jeary's alleged 'sensitivity' to the Northern Ireland situation should have led him to debar Mr Maginnes from sitting. The claimant also said that one of the reasons that Mr Sharpe and Mr Maginnes were asked to sit on the panel was that they had received equality training in Northern Ireland law. He sought to prove that this was not a true reason as any training which both of these panel members had was of some age. Whilst it may be prudent for the union as an employer to run refresher courses for its panel members, that does not mean that the panel accepts that Mr Maginnes and Mr Sharpe did not actually have some form of Northern Ireland equality training. The panel does not consider that this affected the decision of the panel members to any great extent and has noted that Mr Jeary who had substantial experience of working in Northern Ireland and a keenness to comply with the demands of Northern Ireland equality law, was present in the interview and (presumably) able to guide the panel if any questions regarding equality issues had come up. The Tribunal is supported in reaching that conclusion by the fact that the claimant repeatedly sought in his cross-examination to use the fact that the notes of Mr Warner and Ms Box (panel members who did not have any Northern Ireland specific equality training) bore some resemblance to the points in his aide memoir.
The Interview Process
- The claimant argued strongly that the failure to mark the five minute presentation disadvantaged him strongly as (in his view) his superior knowledge and experience of the Union in Northern Ireland would have been obvious. The Tribunal is unable to accept the claimant's contention, because it was clearly the evidence of all witnesses that no applicant was marked for the presentation. Neither did any applicant lose marks for the presentation. Again the Tribunal considers that accepting the claimant's contention would involve a process of speculation which is not helpful to it in reaching conclusions about whether or not the claimant was unfairly treated. The Tribunal has no evidence on which it can conclude that the claimant would necessarily have achieved the highest mark had his presentation been marked. All the Tribunal had is his critique of the presentations of the other candidates. The Tribunal does not consider that it is its function to 'second guess' the interview panel, but rather to assess whether or not the claimant was less favourably treated than the other applicants.
Should the interview have been postponed?
- The claimant asserted that in a previous selection process, when a panel member had had to withdraw for unforeseen reasons, on the day of interview, the process was postponed. We consider that the reason why the panel proceeded with four was not from a desire to disadvantage the claimant, either consciously or unconsciously, but from a desire not to inconvenience the other applicants, one of which had travelled from Scotland for the selection process. The Tribunal also considers it appropriate to draw an inference from the evidence that with the local integration of the two unions to happen on 1 January 2004, at 15 December 2003, there was a real risk that if the selection process had been postponed, the appointment would not have been made within the time period before the integration.
- What was the role of Mr Brian Gallagher and Mr John Tierney at the interview? The claimant contended that they had both made notes and at a previous selection process Mr Gallagher had made detailed notes and had played a part. We have already concluded that Mr Tierney did not play any role at all in the interviews. Neither do we find any evidence that Mr Gallagher played any role of any sort in the interviews. No notes are available and we accept Mr Jeary's evidence that he gathered in all materials at the end of the selection process. The Tribunal is not able to accept that just because Mr Gallagher may have taken notes in a previous selection, he necessarily did the same and accordingly attaches very little weight to this allegation on the part of the claimant.
- In presenting his case before the Tribunal, the claimant relied on the aide memoir of points that he had written down quickly before the interview as evidence of his answers to the panel. He further relied on the fact that there was some correlation between the points in his aide memoir and various points made by Mr Warner and Ms Box in their notes, as evidence that his answers were worth higher marks, and that he had greater content in his answers than other applicants. Between the four panel members, it was notable that there was absolutely no dispute on the approach they took to marking the performances of the applicants. They all said that they were looking for an ability to put an answer together that was coherent, focused and structured. Mr Tweed who was the successful candidate had this ability, and the claimant rarely, if ever, showed this ability in answering the questions. The claimant rambled. He gave a lecture. He had to ask what the question was after he had spoken for some time. Mr Warner noted difficulty in picking out what he was saying. Although the claimant contended that this was solely an evidence based process, and as such he should have been the successful candidate, the aide memoir prepared by Mr Jeary to guide himself and the panel, clearly shows that the panel were entitled to consider presentation in relation to the answers to the questions.
- In his cross-examination of each panel member, the claimant conducted a survey of the marks given and the comments given by each panel member for each applicant. Mr Maginnes' and Mr Sharpe's notes on each answer were not as detailed as those of Ms Box and Mr Warner; and the claimant referred the notes of Ms Box and Mr Warner to Mr Maginnes and Mr Sharpe. While it was clearly the case that Mr Maginnes and Mr Sharpe did not make detailed notes, the Tribunal was given no reason to suppose that the notes were anything but a reflection of honestly held views, and not motivated by political prejudice. Had Ms Box and Mr Warner not voiced the same general criticism of the claimant, ie that his presentation – his way of answering the questions was poor, the Tribunal might have been more concerned over the marks given by Mr Sharpe and to a much lesser extent Mr Maginnes. While Mr Maginnes in at least two questions marked the claimant joint second, he also marked the claimant joint first in relation to two questions, and it was only Mr Sharpe who consistently marked the claimant in last place by himself with demonstrably low marks. Had Mr Sharpe written only brief comments in respect of the claimant and considerably longer comments for the other applicants, the Tribunal would have regarded this as some basis for concluding that the claimant was being less favourably treated by Mr Sharpe. The claimant moreover sought to advance the three other male applicants for the position as his comparators for the purposes of the legislation. The Tribunal does not accept these as valid comparators. A comparator has to be in the same or not materially different circumstances, and the Tribunal knew very little to nothing about the circumstances of the other three male comparators. The Tribunal does not consider that it has adequate information upon which to assess the comparators and accordingly constructs a hypothetical comparator. Would a hypothetical comparator being in all respects like the claimant (including the way he presented to the interview panel including asking in a job interview why he was made redundant and presenting his answers in a rambling unfocused fashion) but not holding his political views have been treated the same as the claimant. The Tribunal concludes that a hypothetical comparator would have been treated in the same way as the claimant in the marking of the interview, as it was unanimously the view of the four panel members that the claimant's presentation of his answers was poor, and it was the case that the interview panel was looking for a person who could provide focused, coherent, structured answers.
Was there a conspiracy?
- There were certainly individual criticisms of various questions and various interviewers. It was suggested that the claimant was disadvantaged in how Ms Box marked him for question 1 because of his previous employment as he was marked the same as Walter Wilson who was given credit for providing an example of a recruitment campaign because he was a lay representative. Furthermore Ms Box was accused of bias in relation to question 5 as she concluded that the claimant must have had access to the first set of questions circulated and had some difficulty in explaining why she considered the claimant had demonstrated "poor time management at interview". Be these criticisms as they may, the Tribunal is not able to discern any reason for them except a genuinely held view, which was not reached on the basis of a desire to discriminate against the claimant for his political views. The claimant was not able to prove that Ms Box was a supporter of MSF for Labour and we have found that there was nothing in her background relationship with the claimant that could be seen to be operating adversely against him.
- Mr Warner did have a connection with MSF for Labour, but the Tribunal was not able to conclude this affected his marking. He twice marked the claimant first or joint first and four times marked him either second or equal second. Mr Maginnes out of the eight questions marked the claimant joint top in two of them and joint second in two further questions. Was his marking affected? Mr Maginnes supported MSF for Labour to a certain extent. He admitted he held different views to the claimant but asserted that those different views would never impinge on a matter dealing with an application for paid employment. The claimant was not able to prove to the contrary. Mr Sharpe was the person who consistently marked the claimant lower than anyone else. However, the Tribunal is unable to find that he had any links with MSF for Labour that would have affected his marking. Was there anything in his background history with the claimant? He was certainly accused of much by the claimant, but the Tribunal was not given any evidence to suggest that the actions he took or did not take were governed by his alleged support for MSF for Labour. In the marking of the interview of each applicant, we do not conclude that there has been any evidence to show that the four respondent witnesses were motivated by anything other than a desire to select the best person for the job.
Was it a foregone conclusion that Steve Tweed would be appointed?
- Mr Eddie Miller, a retired EEU Section Divisional Officer said he had been told by Mr Peter Williamson of AMICUS (AEEU) that Mr Jeary had told him that the claimant was not going to be appointed. He also said that a Mr Gerry Hanna told him that a full-time official from another union would be appointed. Mr Jeary, Mr Williamson and Mr Hanna all rebutted this evidence given by Mr Miller on behalf of the claimant. In the face of a firm rebuttal by all three, the Tribunal concludes that it is more likely than not on the balance of probabilities that Mr Miller was simply wrong. In reaching this view, the Tribunal is aware of Mr Williamson's admission that he may have made some comment about the claimant taking the matter to an industrial tribunal.
- For all of the foregoing reasons the Tribunal is not able to conclude that it has found primary facts from which an inference of discrimination can be drawn and consequently no question of an explanation arises. Furthermore, the burden of proof does not shift to the respondents to prove that they did not or are not to be treated as carrying out the prohibited act, ie discrimination against the claimant on the grounds of his political views. There were different factions in this union. There were people on the selection panel who to some extent held different political views
to the claimant, but the Tribunal did not see any evidence to suggest that those differing views had played any part in the non-appointment of the claimant to the position of Regional Officer in December 2003.
Chairman:
Date and place of hearing: 28 April 2008 – 27 May 2008
(excluding – 5, 13, 14, 21 and 26 May 2008), Belfast
Date decision recorded in register and issued to parties:
