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	Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Smyth v Department of Finance and Personnel [2005] NIFET 157_02 (16 February 2005) URL: http://www.bailii.org/nie/cases/NIFET/2005/157_02.html Cite as: [2005] NIFET 157_02, [2005] NIFET 157_2

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FAIR EMPLOYMENT TRIBUNAL

CASE REF: 157/02FET

CLAIMANT: David William Smyth

RESPONDENT: Department of Finance and Personnel

DECISION

The unanimous decision of the Tribunal is that this claim is dismissed. The tribunal unanimously

found that the claimant was not unlawfully discriminated against by the respondent on the grounds

of his religious belief/political opinion.

It was accepted during the hearing that Recruitment Services which had been originally named as

the respondent was an Agency which was part of the Department of Finance and Personnel and that

the Department was the correct respondent and the title has been amended by agreement to reflect

this.

The claimant during the hearing indicated that he was relying only on alleged discrimination in

relation to religious belief.

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Mr M Robinson, Barrister-at-Law, instructed by the Departmental Solicitor.

1. The Tribunal heard evidence from the claimant and three witnesses for the respondent, Mr Butler, the operations manager for recruitment competitions, Mr Dallett, the recruitment manager and Mrs Gibson an administrative officer.
2. The Tribunal was also provided with separate bundles of documents by both the claimant and the respondent.
3. The issue for determination in this case was whether the claimant was less favourably treated than a person of a different religious belief would have been treated in the same circumstances in the way his applications for reinstatement were dealt with by Recruitment Service and in the length of time it took for him to be offered reinstatement by Recruitment Service.
4. The applicable law is contained in Article 3(1)(a) and (2)(a) of the Fair Employment and Treatment (Northern Ireland) Order 1998 which defines discrimination and Article 19 of the same Order which sets out the circumstances in which such discrimination is to be regarded as unlawful in the employment field. The Tribunal in coming to its decision applied the burden of proof contained in Article 38A of the Order.
5. The claimant alleged that he was unlawfully discriminated against on the grounds of his religious belief as a Protestant when his applications for reinstatement were not processed timeously by staff in Recruitment Service which was based in Londonderry, 87% of the staff in that office coming from the Roman Catholic community. He maintained that his perceived religious belief could have been established by the persons who failed to process his reinstatement applications properly because his middle name was William and because he had indicated on his applications that he had worked for the Northern Ireland Police Authority and because he had indicated on his open competition application that he had seen the advertisement in the Belfast Telegraph – a paper which he considered was largely read by people from a Protestant background. He maintained that two persons in particular in Recruitment Service, Mr Eamon Dallett and Mrs Martina Gibson, both of whom he perceived to be Roman Catholics had treated him less favourably than they would have treated a Roman Catholic candidate for reinstatement both in the way the reinstatement applications were dealt with and in the length of time between the receipt of his applications and when he was first offered a post on reinstatement.
6. The claimant, who had previously been a civil servant, applied to Recruitment Service of the Northern Ireland Civil Service for reinstatement as an Administrative Officer on 4 September 2001. He telephoned some days later to enquire whether his application had been received and was told that it was not on record and was invited to submit a further application for reinstatement which he did and which was received by Recruitment Service on 14 September 2001. An open competition for the post of Administrative Officer was also being held around this time and the claimant applied for appointment as an Administrative Officer through the open competition and this application was received by Recruitment Service on 28 October 2001. None of the applications by the claimant were cross-referenced as they should have been.
7. The claimant's application for the open competition was processed correctly except that it was not cross referenced with his reinstatement applications and he was called to take the aptitude test in respect of his open competition application in December 2001.
8. When a person applies for reinstatement in the Civil Service, Recruitment Service enquires from the person's previous employing department as to the candidate's eligibility for reinstatement and whether that department currently has vacancies in the grade appropriate to the candidate. This enquiry was carried out in relation to one of the claimant's reinstatement applications in September 2001. That department indicated in October 2001 that the claimant was eligible for reinstatement and that while it currently had no vacancies in the grade in question vacancies were expected to arise in the next twelve months. The next normal step in the process of reinstatement was that the candidate would be invited for the next available aptitude test because the rules were that no one could be reinstated unless they sat an aptitude test and obtained at least the pass mark required of candidates in a current open competition. The next available aptitude test was scheduled for November/December 2001. The claimant was not invited to attend the aptitude test on foot of his reinstatement applications but he did attend it as part of the processing of his open competition application. The results of the open competition came through some time in late January 2002 and the claimant obtained fifty-eight marks, the pass mark being fifty-four. The claimant's open competition application was at all times dealt with correctly and the claimant had no complaints to make in relation to the open competition.
9. During October 2001 the claimant enquired by telephone several times about his reinstatement applications and was given conflicting information as to the position with regard to the eligibility enquiries. He telephoned again towards the end of January/beginning of February 2002 with regard to his reinstatement applications and at that stage was informed that they did not appear to have been processed any further than the eligibility enquiry. The claimant spoke to Mr Dallett by telephone at this point and Mr Dallett realising that errors had been made with regard to the processing of the reinstatement applications issued an instruction that an aptitude test should be arranged as soon as possible for the claimant. In the course of a further telephone conversation with the claimant, Mr Dallett realised that the claimant had in fact sat the aptitude test as part of the open competition. He then cancelled the appointment made for the specially arranged aptitude test and indicated that the claimant's aptitude test taken for the open competition would be used for his reinstatement application.
10. Mr Dallett was concerned about the failures in the administration in relation to the claimant's reinstatement applications and he asked Mr Butler to carry out an enquiry into how these matters had occurred. He also requested that the claimant's reinstatement application should be processed through the Occupational Health Service as soon as possible. Recruitment Service wrote to the Occupational Health Service on 12 February 2002 asking for the claimant's referral to the Senior Medical Officer to be treated as urgent. At this time replies from the Occupational Health Service were taking up to two months. However in view of Mr Dallett's request that this matter be processed promptly a number of telephone calls were made from Recruitment Service to the Occupational Service trying to find out what was happening in relation to the claimant's medical referral. Again there seemed to be a degree of confusion about where the referral was in this process. However, on 17 April 2002 the claimant was found fit to give regular and effective service. In the meantime the claimant by letter dated 27 March 2002 had complained to Mr P Carville, the Permanent Secretary of the respondent department about the way his reinstatement applications had been treated.
11. At the time when the claimant's reinstatement application was ready to be processed towards a job offer and in view of the of the previous difficulties which his reinstatement applications had suffered, Mr Butler, whose job it was to allocate successful candidates to a department, telephoned the claimant's previous employing department to enquire if there were any vacancies in that department and was told that there were not. It had had two vacancies at the appropriate grade towards the end of March 2002 which had been filled by internal candidates on promotion. Having satisfied himself that there were no vacancies at an appropriate grade in the previous employing department Mr Butler then looked at the demands which the Recruitment Service had from various other departments for staff and allocated the claimant to the Social Security Agency and on 19 April 2002 he sent the claimant an offer of a permanent appointment within an office of the Social Security Agency. The claimant informed Mr Dallett by telephone of his personal difficulties in taking up the appointment at the particular Social Security Office to which he had been allocated and he was then offered a further position with the Social Security Agency in Castle Court. The claimant attended at the Castle Court building for something less than half a day and then was on sick leave for approximately six months on full pay.
12. The period covered by the events about which the claimant complains occurred during a particularly busy period for Recruitment Service. It dealt with 23,407 applications in the year 2001 to 2002 as opposed to 17219 applications the following year and the preparation and processing of those applications was ongoing throughout this time. In addition, Recruitment Service suffered an absenteeism rate of somewhere around 20% particularly among the supervisory grades. It was also the case that reinstatement applications were given a low priority in Recruitment Service because they were regarded as an exception to the merit principle in that a candidate for reinstatement could get appointed as long as they met the basic competency for the job for which they applied without the requirement to be ranked in order of merit and offered appointment in strict merit order. The result of this was that the average time taken for candidates for reinstatement to be offered a post was thirteen and half months as shown by statistics provided to the Tribunal. Statistics were also produced which showed that in the year 2001-2002 Recruitment Service received 23,407 applications overall of which 45.3% came from the Protestant community and in that year 45.76% of the appointments made were persons from the Protestant community. In the year 2002-2003 17,219 applications were received of which 43.9% were from the Protestant community and in that year 46.1% appointments made were from the Protestant community.
13. The Tribunal accepted that the claimant's two reinstatement applications were treated less favourably than other persons' applications would have been who could have been of a different religious belief. The Tribunal noted in particular two applications from Roman Catholics who were reinstated in four and five months respectively whereas the claimant's reinstatement took nearly eight months.
14. The Tribunal then looked to the explanations given by the respondent's witnesses for this treatment. Their evidence was that the two Roman Catholic candidates for reinstatement whom the claimant relied on were only two out of one hundred and fifty three persons who had been offered reinstatement in the relevant period and that the average time taken to offer candidates reinstatement was, at that time, thirteen and a half months. They also maintained that there was no pattern of offering reinstatement to persons of either community unfairly in the statistics provided.
15. The Tribunal also noted that Mrs Gibson who was the person who inputted the data about the claimant's two reinstatement applications accepted that she had been careless and made mistakes in the initial registration on the computer of his reinstatement applications and that she did not entirely understand the method of cross-referencing. She maintained however, and the Tribunal accepted that she did not have responsibility for the overall processing of the claimant's reinstatement applications. The Tribunal accepted that there was an absence of supervision during this time and that there was an unprecedented number of candidates applying for appointment in 2001 and the subsequent pressures which that placed on staff in Recruitment Service.
16. The Tribunal also noted Mr Dallett and Mr Butler's frank admissions once the matter had been brought to their attention that the claimant's reinstatement applications had been incompetently dealt with. The Tribunal also noted the efforts made by Mr Dallett and Mr Butler once they realised the errors made to expedite the claimant's reinstatement applications.
17. The Tribunal found the claimant's opinions that an aptitude test should have been arranged for him alone prior to the open competition test and actioned more swiftly through Occupational Health to be unrealistic in view of the numbers of candidates being processed at that time by the Recruitment Service and the Occupational Health Service. The Tribunal also found the claimant's expectations of the speed at which he and the Tribunal could expect reinstatement unrealistic bearing in mind the statistics with which he had been provided which demonstrated that the average time taken from application to reinstatement was thirteen and a half months.
18. The Tribunal found the explanations given by the witnesses for the respondent to be frank and convincing. The Tribunal therefore did not accept in these circumstances that the claimant's religious belief had played any part in the way his reinstatement applications were dealt with despite the disproportionate number of Roman Catholics in Recruitment Service. The Tribunal noted that if the reinstatement applications had been properly processed the claimant would still have been invited to the aptitude test which took place November/December, his marks in that would not have been known until the end of January and the process of referring him to the Occupational Health Service would, at best, have only taken place two or three weeks before it was actually done.
19. Mr Robinson requested that the claimant be ordered to pay the respondent's costs in the event that the respondent was successful. He measured these costs at £2650.00 being his fees. He maintained that the claimant in bringing and persisting with this case had been misconceived and that there was no evidence of religious discrimination and that the errors had been explained to him and in the end his application for reinstatement had been processed as quickly as it could have been.
20. Mr Smyth pointed out that he believed he had been treated unfairly because of his religion. He pointed out that his prior employing department had indicated in October 2001 that they were expecting vacancies in the following year and so he suggested it was not unreasonable to expect the respondent to have contacted that department when they were ready to offer him a job. He queried as to how so many mistakes could have been made in relation to two reinstatement applications and how these could not have been picked up for four or five months. He also maintained that when Mr Dallett wrote to him he did not answer his complaint letter adequately which lead him to continue to believe that there was not an innocent explanation. Mr Smyth also indicated that he would have considerable difficulty making any such payment.
21. The Tribunal carefully considered the respondent's application for costs. The Tribunal reminded itself that orders for costs are the exception rather than the rule in these Tribunals but the respondent brought this request for costs by saying the application had been misconceived which is normally regarded as meaning having no reasonable prospect of success. The Tribunal concluded however, having heard and seen all the evidence, that it was not satisfied that the claimant should have known that his claim had no substance. The Tribunal accepted that the full extent of the incompetency with which the claimant's reinstatement applications were dealt with only really became apparent at the hearing of this case and in these circumstances the Tribunal does not accept that the pursuance of this case by the claimant can be regarded as misconceived. An order for costs will therefore not be made.

Chairman:____________________________________

Date and place of hearing: 15 and 16 February 2005 and 5 April 2005

Date decision recorded in register and issued to parties: