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You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Hubbard v Derry City Council (Religious & Political Discrimination/Sex Discrimination/Race) [2003] NIFET 324_99 (28 March 2003) URL: http://www.bailii.org/nie/cases/NIFET/2003/324_99.html Cite as: [2003] NIFET 324_99 |
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CASE REF: 00324/99FET
03687/99SD
03688/99RR
APPLICANT: Dr Jane Hubbard
RESPONDENT: Derry City Council
The unanimous decision of the Tribunal is that the applicant was not unlawfully discriminated against on grounds of religion/politics, sex or race.
Appearances:
The applicant represented herself.
The respondent was represented by Ms A Finnegan, Barrister-at-Law, instructed by J Blair, Solicitor.
"The Organiser will have overall responsibility for organising the programme of Heritage and Museum Services with the Recreation and Leisure Department and for managing the facilities within that discipline which currently include the Harbour Museum, Tower Museum, Waterside Workhouse, Amelia Earhart Centre, Foyle Valley Railway Centre and the Museum Store. The Organiser will have budgetary, financial and staff management responsibilities for the programme as a whole and will be the Council's senior adviser on all Heritage and Museum Service matters."
"candidates must hold a degree in History, Archaeology or a related discipline. It is also desirable that candidates should possess a post-graduate qualification in Museum Studies or a related discipline. Candidates must have at least 3/5 years relevant management, curatorial or academic experience at a senior level and be able to maintain and develop strong community and educational links and promote public access and involvement in the programme through exhibitions, workshops, publications and international exchanges and sustain the international reputation of the museum services."
- responsibility for administration, finance and marketing;
- preparation of annual budgets and controlling of same;
- liaison and co-operation with relevant organisations/contacts at local, national and international levels;
- negotiations of contracts and commissioning of exhibitions;
- control of resources (including staff, premises and equipment);
- acquiring, curating and presenting collections; and
- development of historical, heritage or archaeological themes.
9 GCE 'O' level passes
3 GCE 'A' level passes
Bachelor of Education (Hons) 2.2
Master of Arts
Doctor of Philosophy
Diploma in Museum Studies
Museums Diploma – Associate A.M.A.
| 1975-1979 | Summer vacation work |
| 1979-1980 | Lecturer I |
| 1980-1981 | Placement Officer, Youth Employment Scheme |
| 1981 | Summer camp counsellor |
| 1981-1982 | Education Officer (Beamish Museum) |
| 1982-1983 | Education Officer (Unemployed Centre) |
| 1983-1985 | Lecturer I (P/T) |
| 1985-1989 | Research for PH.D – "Children's games in Derry – A Social Anthropological Study |
| 1989 | Welfare Rights Officer |
| 1989-1990 | Job Club Manager |
| 1991-1996 | Assistant Keeper (Ulster-American Folk Park) |
| 1996 to date of applications | Museums Officer (Causeway Museum Service – Coleraine Borough Council) |
The applicant indicated that in her view the most pertinent experience related to four positions namely:-
Museums Officer (Causeway);
Assistant Keeper (Folk Park)
PH.D Research
Education Officer (Beamish).
5 GCSE (NI) C grade
Diploma in Continuing Education
(History,
Economics,
Maths,
English)
B.A. Hons. Communication Studies
Journalism, Film, Radio, T.V.
History Units:
Fenians
Medieval Ireland
United Irishmen
Victorian Leisure
Marxist analyst of Irish History
History of Communications
| 1977-1983 | Archaeological Draughtsman/Surveyor |
| Sept 1987- April 1988 |
Computer Designer |
| 1988-1991 | Curatorial Assistant, Derry City Council |
| 1991-1998 | Curator of Museums, Derry City Council |
| 1998 | Acting Heritage and Museum Services Organiser |
(i) Firstly she complained that the delay between the post becoming vacant and the interviews was a period of one year. Since the successful candidate was acting up to the post in question throughout that period, he was advantaged by the delay and she was disadvantaged.
(ii) She alleged that it was well known in advance of the interviews that the successful candidate, Dermot Francis, would be the successful candidate. She relied on a conversation which she had had with a local historian named Michael McGuinness at the Harbour Museum. She also relied on a conversation which she had had with unknown persons who were employed at the admissions desk of the Tower Museum. None of these persons were called in evidence.
(iii) She alleged that at her interview she was "directed" not to duplicate information contained in her application form by the Chairman of the panel Councillor Miller. She alleged that this "directive" prevented her expanding on her answers, and was responsible for the fact that her interview lasted only twenty minutes while Mr Francis' interview lasted forty minutes.
(iv) She alleged that the questions asked at interview advantaged Mr Francis and disadvantaged her because he was able to discuss his work for Derry City Council, whereas she had never worked for this Council.
(v) She alleged that Mr Francis did not meet the shortlisting criteria as regards qualifications. She disputed that Mr Francis could have taken the number of history units as part of his degree in Communication Studies which he stated on his application form, and she contended that the respondent should have known that his information was incorrect.
(vi) She alleged that Mr Francis had not been curator of museums from April 1988 as alleged on his application form. She stated that he had only held the junior position of curational assistant for that period.
(vii) She alleged that her professional museum and Ph.D post-graduate qualifications meant that she was a superior candidate for this position, and the failure of the panel to mark qualifications at interview, or to consider the merits of each candidate's qualifications disadvantaged her and advantaged the successful candidate. It is accepted that at interview all candidates were regarded as having attained sufficient qualifications for the post, since they had been shortlisted. The respondent alleged however that they would have expected the candidate with the superior qualifications to have performed better at interview.
(viii) Finally, she alleged that some matters which she had mentioned as part of her answers were not recorded by some members of the panel.
(a) Mr Francis, the successful candidate, had been employed as curational assistant which was a junior management post in 1988. In or about 1991, as a result of a job evaluation review, the post was re-designated "Curator" within the Heritage and Museum Services Section of the Recreation and Leisure Department. The review continued to designate the salary grade of the post as junior management. The effective date of this re-designation was 1 August 1991.
(b) In accordance with the procedures, Mr Francis appealed the salary grade of the new post. In October 1997, Mr Francis was informed that his appeal was successful. The post of curator was regraded as middle management and backdated to 20 October 1992.
(c) Within the structure of Derry City Council, a middle management post is regarded as senior management since the next level of responsibility is Assistant Chief. Below Assistant Chief level, all other post holders are middle management, junior management or below management grade.
(d) By letter dated 17 September 1996, as part of the appeal process, Mr Logue, Director of Recreation and Leisure set out a number of reasons for the regrading of the curator's post:
"1. In accordance with existing job descriptions, Dermot Francis manages a number of specific staff. In addition he manages other staff in specific functional areas. However, the overall growth of the Heritage and Museums Service, beyond anything that was envisaged at the time of the original review, has necessitated practical readjustments effectively placing him in a position as deputy to the Heritage and Museum Services Organiser with general day to day management of virtually all staff in the service. It is the latter point which we are seeking to have recognised.
2. Technically all recommendations to the council go as reports from the Town Clerk and Chief Executive irrespective of where they emanate from. However, individual officers give professional advice from their particular areas of expertise and attend Council meetings etc to speak on those areas. This is precisely the case with Mr Francis. A good example of this was the Atlantic Memorial Commemorations where Mr Francis was the sole representative of the Recreation and Leisure Department to attend relevant meetings and his expertise had a primary influence on the events organised.
3. Within the Council Structure all officers report through line management ultimately to the Town Clerk and Chief Executive. However, in each Department of Council particular areas of work are delegated to the relevant officer, who by appointment is qualified and expert in their particular area, to be responsible (in all senses of the word) for the tasks involved. The latter must accept such responsibility in the case of a problem. In this sense Mr Francis is responsible for a substantial area of council action …."
Councillor Tony Hasson – (PRA) Roman Catholic, Sinn Fein
Councillor Mary Bradley –(PRA) Roman Catholic, SDLP
Councillor Joe Miller – (PRA) Protestant, DUP
John Keanie – (Town Clerk and Chief Executive) (PRA) Protestant
Cathal Logue – (Director of Recreation and Leisure) (PRA) Roman Catholic
Aidan Walsh acted as independent assessor to the panel but had no voting rights. His perceived religious affiliation is Roman Catholic. In addition Peter Sidebottom was in attendance as Manager of Personnel Services, and at interview stage Reverend Coulter was in attendance as the Local Government Staff Commissioner. Their perceived religious affiliation is Protestant.
(a) The applicant indicated her view that "museums should make people angry". The Tribunal fully accepts the applicant's evidence to the Tribunal that she was trying to convey that the purpose of museums was to evoke emotions, whether happiness, fun, sadness or anger. However, the Tribunal also accepts that in a divided community such as Derry, "anger" was one thing the Museums Service was anxious to avoid. Indeed Mr Francis told the panel in reply to questions, that he was only too aware of the difficulties in mounting sensitive exhibitions since he himself had had "glorious successes and glorious failures" in this regard.
(b) In response to question 9:
"How would you balance situations which may at times seem to create a conflict between the views of the council and your professional opinions",
Mr Logue (Director of Recreation and Leisure Department) indicated that he was concerned at the applicant's response which was that you "have to stick your neck out". Although she also explained that a museum service has to be professional and not drop standards, and that she would tackle the problems by making people aware of the reason for particular things, Mr Logue stated that he was concerned at this remark in the context of Derry. Mr Walsh, the Independent Assessor also thought her response was confrontational, rather than persuasive and was inappropriate to a community such as Derry.
In relation to budgets, the Tribunal accepts that Mr Francis' experience was considerably better than that of the applicant. Although it is correct that a large portion of his £650k budget related to matters such as salaries and overheads, that was also true in relation to her £40k which included her own salary. The Tribunal is satisfied that as manager of the Tower Museum, and as acting Organiser, Mr Francis' experience of budgets was broader and more extensive than that of the applicant.
(i) The post became vacant in April 1998.
(ii) Mr Logue contacted Aidan Walsh for advice in relation to the job description and personnel specification, which was then forwarded to Personnel in July 1998.
(iii) The post was not advertised until September 1998, because it is not policy to advertise over the summer period. Belfast holiday period is July, Derry holiday period is August.
(iv) There was difficulty in arranging a time for shortlisting with so many people involved, particularly the Town Clerk and the Director of Recreation and Leisure. The latter were heavily involved in issues concerning the City of Derry Airport, which was of considerable importance to the City.
(i) Four of the panel did not complete the documentation provided to record the candidates' performance adequately and in some cases at all. Councillor Hassan did not record any comments at all in relation to the candidates and recorded very little of the responses to questions. Councillor Miller did not record any information concerning the candidates responses. Councillor Bradley did not complete any information concerning the candidates' responses either. Mr Logue merely ticked the comment box but recorded no information to indicate what his comments were.
(ii) No record was kept of the advice expressed to the panel by the independent assessor concerning the suitability or otherwise of each candidate. We consider that where the advice of an independent adviser is relied on by a panel, that advice should be recorded, to ensure that the process is transparent and subsequent complaints about the implementation of the selection procedures can be dealt with.
(iii) No discussions took place, and no advice was given concerning the weight to be attached to the various selection criteria. Each panel applied whatever weight they considered appropriate. This is contrary to para 5.3.7 of the Code of Practice.
(iv) Some of the selection panel had not received training on equal opportunities or sound selection procedure, contrary to para 5.3.7 of the Code of Practice.
Mr Miller had not received any formal training, and had had only a chat with the personnel manager, Mr Sidebottom prior to the interviews.
Mr Hassan had no formal training, and this was the first recruitment panel on which he had sat. He had received "some line on the general way of conducting interviews", but he could not remember much about it.
Mrs Bradley gave evidence that she did have training from her experience with Education and Library Boards. However, when asked why she had not fully completed the documentation she said that she had followed her normal practice.
(v) Qualifications were not considered at the interview stage. All candidates were deemed to have sufficient qualifications since they had been shortlisted. Although Mr Logue suggested that the better qualified candidate would have been expected to perform better at interview, we consider that it would have been better to assess a candidate's qualifications as a separate criterion.
(vi) We are particularly concerned that the Local Government Staff Commissioner indicated that the procedures adopted in this case were satisfactory, when there were clearly a number of breaches of the recommendations contained in the Fair Employment Code of Practice.
(a) The fact that the Mr Francis had been acting up to the post in question at the time of the interviews meant that he had an advantage over all the candidates irrespective of sex, race, religion or politics. Mr Francis was the only internal candidate and the Tribunal is satisfied that in the absence of Mr Lacy, Mr Francis was the obvious choice to act up to that position, since he was Mr Lacy's deputy. The Tribunal is also satisfied that there were genuine grounds for the delay in completing this selection process. In our view, since male Irish Catholic candidates were equally disadvantaged by the fact that Mr Francis had one year's experience of doing the actual job, the applicant cannot rely on this as an indicator of less favourable treatment on grounds of her being a female English Protestant.
(b) If Derry City Council had pre-determined that Mr Francis should be the successful candidate, one would have expected the selection criteria to have indicated that a degree in Communication Studies would be acceptable. The fact that there was a query over his qualifications at shortlisting stage, indicates that it was not certain that Mr Francis would be appointed.
(c) The applicant's interview lasted only 20 minutes as opposed to Mr Francis' interview which lasted 40 minutes. The interview schedule allocated 45 minutes between each candidate's interview, and the Tribunal accepts that no candidate had their answers cut short. The Tribunal is satisfied that Mr Francis demonstrated at interview that he was better suited for the post by the depth and detail of his answers. In short, the applicant did not do herself justice at interview. The fact that she alleged that she had been "directed" not to duplicate information which was already on her form suggests that she was aware she had performed poorly at interview and was seeking to attribute blame for that fact.
(d) The Tribunal is also satisfied that although the applicant has better academic qualifications, she did not have better experience for the post than Mr Francis. We accept that this was primarily a strategic, management and leadership post, rather than an academic post. We consider that even if the panel had considered qualifications as a separate criterion at interview, this would not have made any difference to the result.
(e) The Tribunal also takes account of the fact that the panel comprised councillors from the Democratic Unionist Party, Sinn Fein and the S.D.L.P and that the panel's decision was unanimous.
(f) The Tribunal does not accept that the fact that not everything the applicant said at interview was recorded by each member of the panel is an indictor of discrimination. The Tribunal accepts that in so far as notes were made, each member recorded the information that he or she considered relevant to the post. What is clear from the notes is that there was a common view that the applicant's replies were too short, and that her management and budgetary experience was considered weak.
____________________________________
Date and place of hearing: 9-13 December 2002 and 26-28 March 2003, Belfast
Date decision recorded in register and issued to parties: