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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McLoughlin v East Down Institute of Further & Higher Education [2003] NIIT 2040_02 (20 November 2003) URL: http://www.bailii.org/nie/cases/NIIT/2003/2040_02.html Cite as: [2003] NIIT 2040_2, [2003] NIIT 2040_02 |
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CASE REF: 2040/02
APPLICANT: Robert Anthony McLoughlin
RESPONDENT: East Down Institute of Further & Higher Education
The unanimous decision of the tribunal is that the applicant was not unlawfully discriminated against on grounds of his sex and his claim is therefore dismissed.
Appearances:
The applicant appeared in person.
The respondent was represented by Ms Anne Finnegan Barrister-at-Law, instructed by Mr Peter O'Rawe, Solicitor of Education & Library Boards Legal Service.
The reasons for this decision are given in extended form, being an issue under the Sex Discrimination (NI) Order.
(a) The interview did not reflect the job description.
(b) That he was not given a proper interview; his score was not counted at the end, figures in the Assessment and Grading forms were changed and rounded up to accommodate the panel's choice, questions asked at his interview were paraphrased, his interview was hurried and abrasive, the chairman exercised undue influence over the other two panel members in the final selection.
(c) The application form did not state 3 points would be given for an IT qualification and this was introduced after the interviews in an effort to sustain marks and have a female appointed.
(d) The female reserve candidate did not have higher marks than he had and was appointed without discussion or consideration of his scoring.
(e) His experience in public and voluntary service, working with community groups, teaching in the East Down Institute was superior to that of the successful candidate who had 6 month work track experience and limited voluntary experience and had not worked in the area of community development or any other area in the past 8 years.
(f) There was a gender imbalance and a female ethos in the respondent body.
The respondent in its appearance presented on 25 October 2002 denied sex discrimination; denied the applicant had not been given a fair interview or that the interview did not reflect the job description or that it was fashioned to suit the successful candidate; stated that all candidates were treated equally at interview and that the successful candidate was the most suitable for the post in light of her performance at interview; that it was incorrect to state the successful candidate had not been employed in the area of community development or any other areas for the last eight years and that it was the view of the interviewing panel that her previous experience adequately equipped her for the post.
Community Development Officer (Permanent full time)
To support the Centre Manager, Newcastle Campus and Senior Lecturer: New Course Development (Ballynahinch areas) in bringing the Institute into a closer working relationship with the local community by seeking training and development opportunities and community development projects for the Institute. Applicants must hold a degree level qualification and be able to demonstrate an understanding of local community and voluntary sectors including the knowledge and needs of community groups.
The advertisement was also placed in the Down Recorder.
(i) Degree level qualification.
(ii) Able to demonstrate an understanding of local community and voluntary sectors including the knowledge and needs of community groups. It was desirable that applicants should be IT literate and familiar with office applications of new technology.
3.0 This was a new post.
(i) What experience can you recount that demonstrates your knowledge of the local community and voluntary sectors?
(ii) How would you go about creating a plan for the development of the Institute's community provision that will lead to increased enrolment?
(iii) It is important that community courses are accredited. What knowledge do you have of the accreditation process?
(iv) What is your knowledge of the alternative funding streams offered by, for example, the Peace 2 programme, and how would you go about seeking funding from such sources?
(v) You have set up a basic IT course in a community hall and the night before it starts you receive a phone call from the lecturer that they are unable to take the class. What would you do?
The tribunal was satisfied these questions did reflect the job description.
These additions, particularly the marking for an IT qualification, were agreed before the start of the interviews. This is confirmed by the Personnel Manager's note. The tribunal did not accept the applicant's suggestion that the marking for an IT qualification was added after the interviews. It noted that, under the column headed "Question" in the Assessment & Grading form, the words "App. Form" were opposite IT Literacy and "Possible" mark of 5 were in typescript not in handwriting.
It did however agree with the applicant that this particular addition of 3 marks was arbitrary and did not evaluate the level of IT qualification or familiarity with office applications of new technology or give credit for IT experience however substantial. It was suggested by the respondent that applicant should have made reference in his application form to his experience and also in his interview. The applicant maintained he had referred to it in his interview. The tribunal accepted he did make indirect reference in his interview but this did not help him to get the 3 marks. Mention in his application of his experience would likewise not have gained him the 3 marks which the panel were awarding only for an IT qualification of some kind.
The tribunal has taken the following information about these candidates from their application forms and also in the case of the applicant from his evidence.
The applicant had worked for the N.I.H.E. from 1977-1999 and prior to his redundancy was Special Needs Officer and Senior Housing Officer. In course of his employment he had experience of team leading – advice/grants/administration/training; public liaison – establishing tenants' groups; community self-help; mediation community conflict. He was a board member and volunteer of the Open Door Housing Association. He had lectured at the Respondent Institute in 1997 on Care in the Community – two sessions of two hours per week for twenty weeks.
Loretta McDonnell, who was living in Warrenpoint, had completed a six month job placement with Southern ITeC Ltd in Newry from January to July 2001 as Events Organiser and Resources Officer and had assisted Community Development Worker liaising with key community groups and agencies and had successfully completed several funding applications. She had two years experience as a teacher of children with special needs and traveller children 1991-1993. She had thirteen years voluntary experience on local committees and had contact with EGSA and WEA organising courses in the community.
Siobhan McCusker was currently employed by Springvale Training Ltd, a community training organisation, as a Learning Facilitator providing access to ICT and basic skills courses to various groups including community groups, having previously worked with this company as employer liaison officer securing placements for jobskills students. While at university she had done market research for a training organisation which was used to obtain funding.
The above information demonstrates that all three candidates had experience relevant to the post, albeit differing in terms of length and variety. The tribunal could not put itself in the shoes of the respondent and decide which experience was most relevant. It accepted that having decided that the candidates had met the required criteria, the panel were entitled to base selection on the answers to the questions at interview.
Under Essential qualifications the wording of no (ii) "Able to demonstrate an understanding of local community and voluntary sectors including the knowledge and needs of community groups" clearly suggested general local knowledge rather than knowledge of the specific local area.
The applicant attributed particular significance to the inclusion of the word "the" in Q1: "What experience can you recount that demonstrates your knowledge of the local community and voluntary sectors"? The tribunal did not agree. Its view was that had the question been "What experience can you recount that demonstrates your knowledge of the local community"? the meaning would have been consistent with knowledge of the specific local community. Taking the question as a whole however the tribunal did not accept it meant knowledge of the specific local community and voluntary sectors. This was supported by the fact recruitment was not limited to the local area in that the position was advertised in the Belfast Telegraph as well as locally.
In the assessment and Grading sheets marks for Q1 are included in first box, which is headed Qualifications, under Marketing along with Q's 2 and 4 and under Institute Programme and in second box, which is headed "Specialist Knowledge" under Local Community.
Under "Marketing" D. Smith gave 1 extra point to the successful candidate and marked the applicant and the Reserve the same. J. Quinn gave the same marks to all three. B. McAlorum gave 1 point less to the Reserve. Under "Institute Programmes" D. Smith gave all three the same marks, J. Quinn gave an extra point to the successful candidate and B. McAlorum gave 1 point less to the Reserve.
Under Local Community the applicant was scored:
4 marks by D. Smith who commented "Knowledge offered from housing association rather
than local knowledge."
7 marks by J. Quinn who commented "Has knowledge of Newcastle and rural area".
8 Marks by B. McAlorum who commented "Outlined knowledge of local community eg working in area".
TOTAL marks 19.
All 3 panel members acknowledge he had worked in the local area.
The successful candidate was scored:
6 marks by D. Smith who commented "Wide community involvement".
8 marks by J. Quinn who commented "Good local knowledge".
8 marks by B. McAlorum who commented "Strong local community knowledge".
TOTAL marks 22.
The reserve candidate was scored:
4 marks by D. Smith with comment "Reasonable awareness mostly through learn direct work etc. Belfast based".
5 marks by J. Quinn with comment "Little Knowledge"
6 marks by B. McAlorum with comment "Little evidence of local community but relevant community experience"
TOTAL marks 15.
Under Overall suitability – fit job description – applicant was scored:
5 marks by D. Smith with no comment.
8 marks by J. Quinn with comment "Would be very suitable due to public Authority experience and voluntary involvement. On boards of Vol. organisations. Therefore involved at high level sitting on Boards".
8 marks by B. McAlorum with comment "Knowledge & experience relevant extensive experience outlined".
TOTAL marks 21.
Successful candidate was scored:
5 marks by D. Smith with no comment.
8 marks by J. Quinn with no comment.
8 marks by B. McAlorum with comment "Good local knowledge. Broad roles 13 yrs".
TOTAL marks 21.
Reserve candidate was scored:
5 marks by D. Smith with comment "Able – some community experience in an educational context".
7 marks by J. Quinn with comment "Would be very suitable. No knowledge of East Down area but all other requirements".
7 marks by B. McAlorum with comment "Absence of local knowledge but other experience and skills relevant".
TOTAL marks 19.
While the panel notes showed there was emphasis on specific local knowledge, the comments and marks were consistent with views given in evidence by the panel members.
Under "Accreditation of Courses" D. Smith gave 5 points each to the applicant and the Reserve but only 2 points to the successful candidate: J. Quinn marked the applicant 7, the Reserve 6 and the successful candidate 5: B. McAlorum marked the applicant and the Reserve 8 and the successful candidate 4.
Under "Interpersonal Skills" reflected by answers to all questions: in relation to "communication skills" D. Smith and J. Quinn scored all three candidates the same and B. McAlorum gave 1 point less to the Reserve. Under "Organisation Skills" D. Smith gave successful candidate 4 points and applicant and Reserve 6 points each: Both J. Quinn and B. McAlorum scored all three candidates the same.
Under "Attitude/Motivation/Flexibility the panel scored all three the same and under "Overall Suitability" D. Smith scored all three the same and J. Quinn and B. McAlorum gave 1 point less to the Reserve.
The tribunal did not find any evidence of deliberate under or over marking in respect of the three candidates. Comments indicate that the applicant's experience was taken into account. The tribunal did not find any evidence that the applicant's interview was unfair.
It was unfortunate this mistake, unlike the mistake over Mary McMahon's marks for IT, was not discovered till proceedings were underway and the applicant sought Discovery of the Marking sheets. The respondent argued that the mistake did not matter in the selection, as marks were not aggregated. The applicant clearly felt he was disadvantaged by the mistake.
The total marks given by each panel member were:
D. Smith 45 to applicant, 49 to successful candidate, 49 to reserve candidate
J. Quinn 65 (69) 72 69
B. McAlorum 75 72 71
TOTALS 185 (189) 193 189
J. Quinn said of Siobhan McCusker "lacked local knowledge. Highly qualified".
Applicant "Suitable due to vol. Exper. Public service – May lack ground knowledge. Has local knowledge".
Loretta McDonnell "Has local knowledge. Range of exper. Work On
ground. Institute experience. Very suitable".
D. Smith said "top two of Siobhan McCusker Lorretta McD. Could do post. Siob.
Lacked local knowledge but could come up well qualified. Could see
Lorretta go out and deal with people. Both tied at 49 points" "Rbt McL. endorse J. Q's comments. Management community; not a doer. Could not score on IT skills 45 score. Ground level effective".
"V clear Lorretta McDonagh ahead. Siobhan McCusker 1st reserve".
B. McAlorum said "My comments given. Similar to above. Reference to Rbt McLoughlin and the level of his experience. More of a question of ground level involvement. Both Lorretta and Siobhan were highly placed in my marking. Would be in agreement that above candidate be recommended and agree with reserve candidate as well". He continued "In general absence of local knowledge from most candidates. Role of post to go out and be active at ground level".
The panel in their evidence to the tribunal suggested they were not saying the applicant did not have ground level experience but rather that his answers did not indicate a ground level approach.
In her evidence J. Quinn said the applicant told her how the job should be done whereas successful candidate told how she would do it. The tribunal found this was a very significant statement in relation to selection.
"Relevant to others good management background. Management perspective. Appointee had more active community development activity – educational slant, educational training slant evidence of on the ground activity and background.
Managing someone like that
Extensive local community involvement
Some local based practical experience of community groups.
Training/Educational
1. Senior lecturer new course development (strategy)
2. More active community type role Centre Manager
"doing of the post ---"
on the ground practitioner
local community voluntary sector, flexibility illustrated skills to manage more fully on the ground experience bidding, liaison, etc
involved in community groups
some experience of what we were looking for
Housing Association ok but education.
B. McAlorum met with the applicant following this. The applicant repeated his points re the interview:
1. No questions on community development.
2. No opportunity to ask questions.
3. Hands on knowledge – local
B. McAlorum referred generally to matters as discussed with D. Smith. He was aware applicant was not satisfied. He felt applicant's understanding of role of post was at variance with what panel were looking for.
Regarding the comment about the applicant, D. Smith's explanation was that he meant the applicant with his management experience could manage someone like the Community Development Officer i.e. his experience was at a higher level.
B. McAlorum's explanation was that the applicant in a management role was not what was needed. This was a reasonable explanation.
Articles 3 and 4 of the Sex Discrimination (NI) Order 1976 provide –
(1) A person discriminates against a man in any circumstances relevant for the purposes of this Order if:
(a) on the ground of his sex he treats him less favourably than he treats or would treat a woman.
Article 7 – Basis of comparison –
A comparison of the cases of persons of different sex or marital status must be such that the relevant circumstances in the one case are the same, or not materially different, in the other
Article 8 Discrimination by Employers –
It is unlawful for a person, in relation to employment by him at an establishment in Northern Ireland, to discriminate against a man:
(a) In the arrangements he makes for the purpose of determining who should be offered that employment, or
(b) in the terms on which he offers him that employment, or
(c) by refusing or deliberately omitting to offer him that employment.
Article 63A –
Where at the hearing of a complaint to an industrial tribunal, the complainant proves facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent:
(a) Has committed an act of discrimination against the complainant which is unlawful by virtue of Part 111 (Discrimination in Employment Field), the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act.
The applicant's case falls under Article 8(a) and for the purposes of Article 7 the successful female candidate and the female reserve are appropriate comparators.
Where inferences of less favourable treatment on grounds of sex can be drawn the burden of proof moves to the respondent who must prove on the balance of probabilities that the treatment was "in no sense whatsoever" on grounds of sex. The respondent must provide not only an explanation for the facts but an adequate explanation backed by cogent evidence.
(a) the interview did not reflect the job description;
(b) that he was not given a proper interview: figures in the Assessment & Grading forms were changed and rounded up to accommodate the panel's choice; questions asked at his interview were paraphrased; his interview was hurried and the chairman was abrasive; the chairman exercised undue influence over the other two members in the final selection;
(e) his experience in public and voluntary service, working with community groups, teaching in East Down Institute was superior to that of the successful candidate who had 6 month work track experience and limited voluntary experience and had not worked in the area of community development or any other area in the past 8 years;
(f) there was a gender imbalance and female ethos in the respondent body.
The tribunal refers to its findings in paragraph 3.
Chairman:
Date and place of hearing: 19-20 November 2003, 15-16 January2004 and 11-12 February
2004, Belfast.
Date decision recorded in register and issued to parties:
