Gillespie v PriceWaterhouseCoopers LLP [2010] NIIT 01102

THE INDUSTRIAL TRIBUNALS

CASE REF: 1102/10

CLAIMANT: Jillian Gillespie

RESPONDENTS: 1. PriceWaterhouseCoopers LLP

2. Stuart McKeown

3. Karen Begg

4. The Northern Ireland Transport Holding Company

DECISION

The Industrial Tribunal unanimously dismisses the claimant’s claim for discrimination on the ground of age.

Constitution of Tribunal:

Chairman: Mr Brian Greene

Members: Mr John Boyd

Mr Joseph Patterson

Appearances:

The claimant appeared in person.

Respondents one, two and three were represented by Mr David Sharpe, of counsel, instructed by PriceWaterhouseCoopers LLP. The fourth respondent was represented by Mr Paddy Ferrity, of counsel, instructed by Carson McDowell Solicitors.

Sources of Evidence

1. The Industrial Tribunal heard evidence from the claimant. It also heard evidence on behalf of the first respondent from Maeve Patterson and the second and third respondents and on behalf of the fourth respondent from Gordon Milligan and David Brown. The tribunal also received five bundles of documents amounting to some 829 pages. The documents included the statutory questionnaires and their responses and records of proceedings.

The Claim and Defence

2. The claimant claimed discrimination on the ground of her age. The respondents denied that any of them had discriminated against the claimant on the ground of age.

The Issues

3. At a Case Management Discussion on 26 August 2010 the issues for determination by the tribunal were agreed as follows;-

Direct Discrimination

(1) The claimant’s claim of age discrimination relates to the failure to shortlist her and failure to appoint her to the post.

(2) The claimant claims direct discrimination in the shortlisting process. Her comparators are candidates numbered 10, 11 and 20 as the claimant claims they were weak on the criterion which she failed to pass at shortlisting.

(3) The direct discrimination claim also relates generally to the shortlisting process with comparators number 20, 24 and 25 who were all shortlisted despite queries regarding their forms.

(4) The direct discrimination claim also relates to the requirement to provide a tailored CV. Of the eleven candidates shortlisted six had provided a standard CV which was not tailored to the post and yet they were shortlisted. The age range of those shortlisted and their year of qualification indicated that they were all younger than the claimant.

(5) The claim of direct discrimination also relates to the way the claimant’s CV was dealt with. The claimant’s claim is that information on her CV was not put in the shortlisting form by the first respondent’s staff who deliberately obscured the claimant’s experience on criterion 3. The claimant does not know whether the fourth respondent had her CV before them together with the shortlisting form prepared by the first respondent. The claimant’s comparators are candidates 10, 11 and 20 who were particularly weak on corporate governance and were all younger than she and less experienced yet they were all shortlisted despite less experience on criterion 3.

Indirect Discrimination

(6) The claimant claims that the group to which she belonged was people born before 1966. The claimant suffered a particular disadvantage in that she was not shortlisted and did not get the post.

(7) The provision, criterion or practice related to the following matters:-

(a) The use of CVs. Seventeen candidates provided their dates of birth and none of these were redacted. Many candidates listed the dates they passed their exams and this made it easy for the respondents to screen out anyone who did not fit age profile.

(b) The same person managed the whole process namely Karen Begg which meant that there was no anonymity in the process.

(c) Translink policies and procedures were not implemented and if they had been implemented this would have protected all candidates in that shortlisting would have been done on an anonymised basis and an application form would have been used.

(d) Stipulating in the advertisement the phrases “make your mark”, “ambitious” implied that those who had already made their mark need not apply.

Findings of Fact

4. (1) The claimant was born on 5 November 1957 and is a qualified solicitor by occupation.

(2) The first respondent is a multi-disciplinary professional services firm which was retained by the fourth respondent in connection with a recruitment competition for the position of Head of Corporate Governance and Legal Services, begun in January 2010.

(3) The second and third respondents are consultants employed by the first respondent and were involved in the recruitment competition in January 2010.

(4) The fourth respondent is a public corporation established under the Transport Act (Northern Ireland) 1967 to oversee the provision of public transport in Northern Ireland. Translink is its trading name.

(5) On 8 and 10 January 2010 the first respondent placed advertisements in the Belfast Telegraph, Sunday Life, Northern Ireland Jobs, and the first respondent’s website in the Republic of Ireland for a senior manager post within the fourth respondent.

(6) The advertisement did not give a job title or salary scale or range. It set out the purpose of the role and the postholder’s general responsibilities of supporting the accounting officer in the delivery of his responsibilities, in particular, corporate governance, legal duties, secretarial duties, compliance and strategic planning.

(7) In the advertisement the following phrases and words were used, “ambitious professional” and “want to make your mark”.

The claimant criticises this language as being ageist or suggestive that a young person was being sought.

The tribunal does not regard these phrases as being ageist or inviting younger people to apply as these words and phrases could be legitimately used in relation to any age group.

(8) Each applicant was provided with a guide for applicants which included details of the eligibility criteria and the recruitment process. The guide contained the following warnings;-

“Curriculum Vitae

Applicants must clearly and fully demonstrate on their CV how they meet the selection criteria. Translink may decide to interview only those applicants who appear, from the information they have provided on their CV, to be most suitable in terms of relevant experience and ability. It is essential therefore, that applicants fully describe on the CV how they meet each of the selection criteria giving specific examples as appropriate. It is not appropriate simply to list the various posts which you have held. Translink will not make assumptions from the title of an applicant’s post or the nature of the organisation as to the skills and experience gained.”

(9) Application was by way of tailored CV, whereby each candidate was to demonstrate how he/she met the requirements of the role. The closing date for applications was 25 January 2010 at 5.00 pm.

(10) Twenty three CVs were received including the claimant’s. One CV was accepted after the closing date as an earlier attempt by the candidate to attach the CV within the time had been unsuccessful.

(11) Karen Begg and Maeve Parkinson were consultants of the first respondent and managed the process. Karen Begg was leader until she went off on maternity leave when her leadership role was taken over by the second respondent after the completion of the sifting exercise.

(12) The process required the anonymisation of the 23 CVs. This was made difficult because a CV was used and not a structured application form. In fact in many of the CVs sufficient information remained after anonymisation from which the assessor could know or work out the age or approximate age of the candidate.

(13) Karen Begg received all the CVs and saw them in their entirety before anonymisation. She passed them to a clerk to anonymise them. The applications were numbered 1 to 23 thereafter.

(14) The use of a CV at senior level is permitted by the fourth respondent’s procedure.

There was not any evidence before the tribunal which showed that the use of a CV, rather than an application form, either assisted or hindered younger or older candidates. No advantage or disadvantage to any age group is obvious from the use of a CV.

(15) Initially Maeve Parkinson and Karen Begg independently considered all the application forms. Maeve Parkinson’s copies of the CVs were retained with her markings on them. Karen Begg’s were not. They prepared a summary of the CV of each candidate setting out how they met or did not meet the eligibility criteria. They both prepared a candidate sift individual assessment form for each candidate where they recorded their assessment.

(16) Both assessors, Maeve Parkinson and Karen Begg, were of the view that the claimant satisfied eligibility criteria 1 and 2 but not criterion 3. Criterion 3 is;-

“Proven exposure of promoting the principles of effective governance at

**senior management level.

**Senior management level is defined as “working or reporting directly to individuals at board level or equivalent.””

(17) The first respondent elected to use “exposure” in the phrase, “Proven exposure of promoting the principles of effective governance at senior management level”, in criterion 3 as an alternative to the use of the word “experience” which had been used earlier in the information provided to candidates.

(18) Maeve Parkinson and Karen Begg prepared a summary of the 23 candidates for a meeting with Mr Milligan and Mr Brown from the fourth respondent. All the CVs were available at that meeting. Maeve Parkinson and Karen Begg presented the CVs in three groups; those who had satisfied the eligibility criteria, of whom there were nine; those who did not satisfy the eligibility criteria, of whom there were twelve; and those about whom there was a doubt and they numbered two. Each group was in the numerical order attributed to them in the anonymisation process.

(19) Neither Mr Milligan nor Mr Brown looked at any of the CVs. They relied on the summary sheets provided by Maeve Parkinson and Karen Begg and the information provided by the latter two on any of the candidates.

Neither did Mr Milligan nor Mr Brown review each CV personally. They agreed with the sifting summary as provided by Maeve Parkinson and Karen Begg. A discussion did take place in relation to candidates 20 and 21, as to whether they satisfied criterion 3. Both candidates were advanced to the next stage of the competition.

(20) Candidate 20 was independently assessed by Maeve Parkinson and Karen Begg in relation to eligibility criterion 3. That candidate received respectively “?” and “n/?”. (n = no).

Candidate 21 also assessed by Maeve Parkinson and Karen Begg received respectively “?” and “y/?” (y = yes).

By the time that the summary sheet was presented at the meeting with Mr Milligan and Mr Brown both of these candidates were described as securing a “y/?.”

The tribunal was not provided with any reason to explain the change of the assessment of each candidate, set out on the assessment sheet carried out by Maeve Parkinson and Karen Begg independently, to what appeared on the summary sift sheet for the shortlisting meeting. Nor is there any note or record of the discussion with Mr Milligan and Mr Brown which shows how it was agreed to progress these candidates to the next stage. Nor was the tribunal provided with any explanation as to why this happened.

(21) Eleven candidates went through the sifting/shortlisting stage to the first interview. Four progressed to the second interview and the final interview involved a presentation by the two top scoring candidates.

(22) There was an internal candidate from the first respondent, who got through to the final interview stage.

(23) Prior to the recruitment competition getting underway Mr Brown had sent two emails, of 17 December 2009 and 4 January 2010, to colleagues and to Maeve Parkinson and Karen Begg in which he used phrases like, “… To help inform our discussion this morning please find the updated ramblings of an ‘aging-father-of-five’”, and in the second email, “Disregard my first email, as I was clearly having a senior moment (Gordon [Milligan] has these all the time but won’t admit to it)”.

In open tribunal Mr Brown accepted that these comments were inappropriate. He denied they were an attempt by him to advance an ageist agenda or to determine the age of the successful candidates or to favour younger candidates or disadvantage older candidates.

(24) In carrying out her assessment of the CVs of the candidates Maeve Parkinson had underlined the claimant’s date of qualification of 1982 twice in black ink and then had also highlighted the date.

Maeve Parkinson explained to the tribunal that this was because she had initially begun the marking of the CVs with black ink and then decided to change to a highlighter.

This is a plausible explanation. The tribunal noted in passing that a number of other CVs had the date of qualification highlighted.

(25) In the candidate sift individual assessment form Karen Begg, in relation to criterion three of the claimant’s CV, commented, “although states ‘experienced in the promotion of the principles of effective governance’ – no evidence of exposure of actually promoting the principles at senior management level. Candidate developed the practice’s Business Continuity Plan”.

Maeve Parkinson commented “candidate notes on CV that they are experienced in the promotion of the principles of effective governance. Limited detail provided of promoting the principles of effective governance. In Patterson Donnelly candidate developed and managed the practice’s Business Continuity Plan, includes disaster recovery system. Limited detail provided”.

At the shortlisting meeting, between Maeve Parkinson and Karen Begg and Gordon Milligan and David Brown, the claimant’s sift summary sheet, where she was deemed not to have satisfied criterion 3, the following is recorded:-

“Qualified solicitor candidate was admitted to the Supreme Court of Justice in Northern Ireland in 1982. Candidate had circa four years experience as Partner with Patterson Donnelly Solicitors. Candidate managed the Conveyancing Department and supported the Senior Partner in corporate and commercial transaction. Candidate was also a Corporate Lawyer for Northern Bank circa nine years. Candidate makes reference to promoting the principles of effective governance but no further detail provided in CV”.

(26) The second respondent was involved as a supervisor in this recruitment exercise after the initial sifting process to replace Karen Begg who had gone off on maternity leave. He engaged in some correspondence with the claimant when she was attempting to get feedback and information in relation to this competition after it had concluded.

The Law

5. (1) It is unlawful to discriminate against another on the ground of age (Article 3 the Employment Equality (Age) Regulations 2006).

(2) Discrimination on the ground of age is to treat someone less favourably than another on the ground of age (Article 3(1)(a) the Employment Equality (Age) Regulations 2006).

(3) A person discriminates against another person if he applies to that other person a provision, criterion or practice which he would apply equally to persons not of the same age group but would put persons of the same age group as that person at a particular disadvantage when compared with other persons and which puts that person at a disadvantage and he cannot show the provision, criterion or practice to be a proportionate means of achieving a legitimate aim (Article 3(1)(b) the Employment Equality (Age) Regulations 2006).

(4) It is for the claimant who complains of discrimination on the grounds of age 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 Regulations 25 or 26 of the Employment Equality (Age) Regulations 2006 or is to be treated as having committed such an act of discrimination against the claimant (Article 37 the Employment Equality (Age) Regulations 2006).

(5) 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 cases 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.

(6) In the McDonagh case Kerr LCJ, as he then was, stated that the first question to be addressed is has the claimant proved, on the balance of probabilities, facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed the act of discrimination. He went on to say:-

“In addressing this question, it would be necessary for the judge to bear a number of ancillary matters in mind. First, that it is unusual to find 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.”

(7) The application of the burden of proof was also considered in Madarassy v Nomura International plc [2007] EWCA CIV 33. In that case Mummery LJ, who gave the decision of the English Court of Appeal, stated in paragraph 52;-

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

At paragraph 56 he stated:-

“The court in Igen v Wong expressly rejected the argument that it was sufficient for the complainants 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 has committed an unlawful act of discrimination.”

(8) In the Northern Ireland Court of Appeal decision in Kevin Curley v the Chief Constable of the Police Service of Northern Ireland and Superintendent Middlemass [2009] NICA 8 Coghlin LJ commented further on shifting the burden of proof in discrimination cases and stated as follows;-

“However, this Court would wish to emphasise the need for a tribunal engaged in determining this type of case to keep firmly in mind the fact that the claim was founded upon an allegation of religious discrimination. The need to retain such a focus is particularly important when considering the potential application of the provisions of Article 38 of the 1998 Order.”

(9) The Northern Ireland Court of Appeal in Nelson v Newry and Mourne District Council [2009] NICA 24 cited with approval the comments of Elias J in Laing v Manchester City [2006] IRLR 748 when he stated;-

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

(10) In RUC Chief Constable v A [2000] NI 261 at page 273, Carswell LCJ stated;-

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

Application of the Law and Findings of Fact to the Issues

6. (1) This claim is about the non-shortlisting of the claimant in a recruitment competition for the post of Head of Corporate Governance and Legal Services with the fourth respondent and the loss of an opportunity to be appointed to that post.

(2) The claimant failed to get shortlisted as she had not satisfied eligibility criterion 3. The reason advanced for that decision was that the claimant had not demonstrated “proven exposure of promoting the principles of effective governance at senior management level”.

(3) This is the core of the claimant’s complaint and the failure to shortlist the claimant is capable of constituting less favourable treatment.

(4) The tribunal, having carefully considered the evidence and submissions on this point, concluded that the decision made by Maeve Parkinson and Karen Begg in relation to eligibility criterion 3, affirmed by Gordon Milligan and David Brown on behalf of the fourth respondent, is a decision which they could legitimately make. In so concluding the tribunal was influenced by the following matters;-

(a) The explanation they advanced for their decision is not irrational or capricious;

(b) All candidates were warned in the guidelines, (i) to describe how they met the criteria; (ii) that it was not appropriate simply to list the posts held; and (iii) that the fourth respondent would not make assumptions about the applicant’s post or the nature of the organisation or the skills and experience gained.

(c) The claimant set out areas where she might well have had exposure of promoting the principles of effective governance at senior management level in her CV. However she does not give details of how she met that criterion. A mere assertion of being experienced in the promotion of the principles of effective governance is not sufficient.

(d) Elsewhere in the claimant’s CV she did not give details of exposure of promoting the principles of corporate governance.

(5) As the tribunal accepts that the decision, that the claimant had not met eligibility criterion 3, to be a legitimate conclusion it cannot amount to less favourable treatment for the purpose of a claim for age discrimination. It is therefore unnecessary to consider further the other ingredients that are necessary to establish a claim of discrimination on the ground of age.

(6) In deference to the arguments advanced by all parties in this claim the tribunal makes the following further comments;-

(a) Following the approach directed by the Court of Appeal in Nelson v Newry and Mourne District Council and stepping back and focusing on the requirements of discrimination on the ground of age the tribunal concludes that there is not the flavour of discrimination on the ground of age in this case. In so concluding the tribunal was influenced by the following matters;-

(i) The comments by Mr Brown in his email set out above, were inappropriate. We consider they were innocently made and not indicative of an ageist agenda.

(ii) The age of the successful candidate, in his thirties, of itself merely illustrates a difference in status. It does not indicate a ground for an action.

(iii) The deficiencies in the recruitment process and the defending of this claim were not sufficient to establish age as being a factor in the decision not to shortlist the claimant nor do they give rise to that suspicion.

(iv) While the tribunal thinks exposure to something is a lesser test than experience of something the wording used in the advertisement is “exposure of” which seems to sit comfortably with the explanation advanced by Maeve Parkinson that exposure was used to avoid repeating experience. The tribunal is fortified in this view when considering the claimant’s CV where she has construed criterion 3 as seeking experience of promoting the principles of effective governance at senior management level.

(v) The underlining of the date of the claimant’s qualification is a factor necessary in the recruitment exercise as criterion 1 demands a qualified solicitor or barrister with at least five years experience. This seems to the tribunal to be an innocent and reasonable explanation of the underlining twice of the claimant’s qualification date.

(vi) The failure to totally anonymise the CVs is difficult to achieve. That difficulty is compounded by the decision not to use an application form with a detachable personal information section. However some attempt was made to do so with some success. No evidence was presented to the tribunal to link the failures to totally anomymise the CVs to the success or failure of any candidate.

(b) There was a number of aspects of the conduct of the recruitment competition and the defence of the claim which concerned the tribunal. These include;-

(i) If a decision to anomymise an application form is taken then the anomymisation should be done by someone not involved in the sifting/shortlisting process. Here the leader of the sifting process received and opened all CVs and had an opportunity to see all the details of every candidate.

(ii) All documents by assessors on which marks or comments are made during the sifting/shortlisting process should be retained, not just some documents.

(iii) Discussion notes or minutes of discussions concerning particular candidates should record a brief explanation as to why an action was taken, particularly where that action departs from the written record.

(iv) The surprising denial of Karen Begg’s involvement in the process in the first respondent’s response, prior to its amendment, particularly where documents with her signature on them had had the signature removed before they were disclosed to the claimant. It is easy to understand how this would cause the claimant to entertain a suspicion of something not being quite right in this process.

(v) The acceptance of a late application where the responsibility clearly rests with a candidate to ensure the application is submitted before the closing date and time.

(7) In light of the tribunal’s conclusions it is unnecessary to consider the claimant’s claim of a loss of an opportunity to be appointed for the post.

(8) Accordingly the claimant’s claim of age discrimination is dismissed.

Chairman:

Date and place of hearing: 26, 29 30 November 2010, 1, 2, 3, December 2010,

4, 17 January 2011.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
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Industrial Tribunals Northern Ireland Decisions