FAIR EMPLOYMENT TRIBUNAL

CASE REF:	137/05FET

CLAIMANT:			Andrew Sides		

RESPONDENTS:		1.	Sperrins Tourism Ltd
				2.	John Donaghy
				3.	Peter McKenna
				4.	Nuala McReynolds
				5.	Sean Kerr

DECISION ON A PRE-HEARING REVIEW

The unanimous decision of the tribunal in conducting a Pre-Hearing Review in accordance with Rule 17 of the Fair Employment Tribunal Rules of Procedure ("the Rules") contained in Schedule 1 of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005 is that the tribunal declines to make any order of the type mentioned in Rule 19(1) of the Rules and the case may now proceed to be listed for a full hearing on the merits.

Constitution of Tribunal:

Chairman:		Mr J Leonard (Chairman sitting alone)

Appearances:

The claimant appeared and represented himself.

The respondents were represented by Ms J McCourt, Solicitor, of Rosemary Connolly, Solicitors.	

1.	The tribunal conducted a Pre-Hearing Review in accordance with Rule 17 of the Fair Employment Tribunal Rules of Procedure ("the Rules") contained in Schedule 1 of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005.

2.	The claimant had, by originating application to the Fair Employment Tribunal dated 17 June 2005, claimed that he had been discriminated against on the grounds of religious belief and political opinion in the arrangements for recruitment and interview concerning a post of employment and he named the five respondents to these proceedings as respondents in that originating application.

3.	By responses, respectively each dated 25 July 2005, the respondents denied that they had discriminated against the claimant on grounds of religious belief and political opinion.
	
4.	The matter was listed, by Notice of Pre-Hearing Review dated 22 May 2006, to consider the contents of the claim on the part of the claimant and the responses thereto and any representations in writing which had been submitted and any oral arguments advanced by or on behalf of any party. The relevant statutory provisions are those contained in Rule 19 of the Rules. If the tribunal, as a consequence of such consideration, was to consider that the contentions of the claimant or respondent had little reasonable prospect of success, the tribunal was empowered to make an order against the claimant or respondent requiring payment of a deposit not exceeding £500.00 as a condition of being permitted to continue to take part in proceedings.  Accordingly, the tribunal proceeded to conduct the Pre-Hearing Review on foot of these provisions.

5.	The tribunal considered the contents of the said originating application and of the responses thereto.  The tribunal also received a written submission from the claimant divided into nine sections and containing both a factual summary and a skeleton argument on the claimant's part together with documentation concerning recruitment and selection procedures which the claimant contended were material to his claim.  The tribunal also heard oral argument in relation to that on the claimant’s part, which shall be further referred to below.

6.	The tribunal received written submissions on behalf of the respondents, providing a factual summary and drawing to the attention of the tribunal certain legal issues and relevant case law.  In addition, from the respondents the tribunal received an indexed bundle containing documents pertinent to the matters to be determined by the tribunal.  The tribunal also heard oral submissions on behalf of the respondents from the respondents’ representative.  

THE CLAIMANT’S CONTENTIONS

7.	The claimant’s primary contentions in his submissions were as follows:-

(a)	In 2004 the first named respondent, Sperrins Tourism Limited (“Sperrins”) had experienced the resignation of a manager.  The claimant was asked to act up as manager.  In October 2004 Sperrins advertised the post of manager.  

(b)	There had been a previous competition for the post of manager in 2002. On that occasion the claimant had applied for the post and the claimant had been short-listed and, after interview, he was made the reserve candidate but was not appointed.

(c)	The claimant was not short listed for interview in the 2004 recruitment competition for the reason that he was deemed by the selection panel not to meet the essential criteria.  However, Sperrins failed to fill the post at the time.

(d)	In January 2005 the manager's post was re-advertised by Sperrins.  This time the criteria were changed and the claimant met all the criteria, both essential and desirable.  He was short listed for interview.  

(e)	The claimant’s comparator in regard to his claim for unlawful discrimination in these proceedings, a Mr Bryant, was also short-listed notwithstanding the fact that Mr Bryant did not meet at least one of the essential criteria.  Mr Bryant was ultimately successful in being appointed to the post of manager by Sperrins, and the claimant was unsuccessful. 

(f)	The claimant contended that the selection and short listing procedure was flawed and discriminatory, that Mr Bryant ought not to have been short listed for interview, nor ought Mr Bryant to have been appointed. Furthermore, the claimant contended that the make up of the selection panel was not proper and balanced in terms of perceived religious belief and political opinion, and that the interview venue was not a neutral venue but rather was in an area perceived as being strongly republican.  The claimant contended that as a result of the venue he was placed at a comparative disadvantage when compared to the successful candidate, Mr Bryant. 

(g)	As a result of the foregoing, the claimant contended that he was discriminated against on grounds of both religious belief and political opinion.  

(h)	In answer to a point (more of which below) advanced on behalf of the respondents that the perceived religious belief of the successful candidate, Mr Bryant, was Protestant, the claimant himself being a Protestant, the claimant did not take issue with the fact that the monitoring form made available to Sperrins in respect of Mr Bryant indeed suggested he was a Protestant. However, notwithstanding that, the claimant contended that Mr Bryant was not originally from Northern Ireland, that Mr Bryant was married to a Roman Catholic, that he attended a Roman Catholic Church, and that Mr Bryant lived in an area which would be perceived as predominately Roman Catholic or republican in character. The claimant contended that these facts would have been known to or would have been brought to the attention of those persons responsible for making the decision both to short list Mr Bryant for interview and ultimately chose Mr Bryant as the successful candidate.

THE RESPONDENTS’ CONTENTIONS

8.	The respondents’ contentions were as follows:-

(a)	The claimant had been employed by Sperrins since January 2003 and he had acted up as manager from 13 September 2004.  

(b)	The Claimant had applied for the position of manager which had been advertised in September 2004 but he was not short-listed due to the claimant's failure to meet essential criteria.  The post was not filled at the time and the claimant continued to act up until January 2005 at which time the post was re-advertised.

(c)	Prior to the re-advertisement, a selection panel for the 2005 recruitment had to be constituted.  It was determined by Sperrins that the composition of the panel ought to include the Chairman and two Vice Chairmen of Sperrins, (each of these three persons representing different sectors including community, business, and borough council representation) and that there should be a fourth panel member in addition.  It was contended that it was nothing other than pure chance that the Chairman and the two Vice Chairmen were of perceived Roman Catholic religious belief.  As these persons were not employees of Sperrins but were rather Board members, they were not subject to formal equal opportunities workforce monitoring. Any information as to perceived religious belief was derived purely from personal association.  There was no information available nor was any view taken in respect of political affiliations.  However, it was conceded that one of the Vice Chairmen, Counsellor Kerr, the fifth respondent named in these proceedings, was a local Counsellor who was affiliated to the political party Sinn Fein, and was therefore presumed to be of a non-Unionist political opinion.

(d)	There was some difficulty apparently experienced in obtaining a fourth member for the panel. After some four attempts the fourth named respondent, Mrs McReynolds, was appointed to the panel.  At the time her perceived religious belief was Protestant. It was conceded, in the light of further information subsequently obtained, that that perception was incorrect.

(e)	Once the panel members had been selected, essential and desirable criteria for the post were devised. However, further to that, a decision was then taken that there would be at least five persons interviewed. If five persons were not to be found to meet the essential criteria, then it was decided that, notwithstanding that, exceptions would be made to the "essential" designation of these criteria which might have resulted in someone who did not meet all of the essential criteria nonetheless being short listed for interview.  

(f)	It was because of the foregoing that Mr Bryant, although he did not meet one of the essential criteria, was nonetheless short-listed for interview.

(g)	The interview process was generally conducted in a fair fashion and the best candidate was appointed irrespective of religious belief.  The religious belief monitoring information in respect of the candidates was collected in accordance with good practice but was not consulted until after the appointment had been made. The successful candidate, Mr Bryant, was the same religious belief, that being Protestant, as the claimant.

(h)	The venue for the interviews was chosen on account of the fact that the Chairman, Mr Donaghy, was the manager of An Creggan Visitors' Centre and facilities were available at that location to conduct the interviews away from the offices of Sperrins.  It was denied that An Creggan would be perceived as a venue which would cause difficulties in attendance for any of the parties being interviewed.

(i)	Article 3 of the Fair Employment and Treatment (Northern Ireland) Order 1998 (as amended) provided that, for the claimant to succeed, he must make out the case that he was treated less favourably on ground of religious belief or political opinion.  That invited a comparison to a person or persons of different religious belief or political opinion.  The relevant circumstances in the one case must be the same or not materially different in the other. The tribunal was referred to the cases of Magill and another v Fair Employment Agency [Belfast Recorder's Court 10 July 1987], Chief Constable of the RUC v A [2000] NI 261, and Shamoon v Chief Constable of the RUC [2003] UKHL 11. As Mr Bryant was the same religious belief as the claimant, and as the panel conducting the interview process had no information regarding the political opinion of any candidate, there were no grounds upon which the claimant could argue that he had been subjected to unlawful discrimination on the statutory grounds.  The claimant’s case therefore had no reasonable prospect of success.

THE TRIBUNAL’S DETERMINATION

9.	The tribunal fully considered the documentation which was before it including the claimant’s originating application and responses thereto and the written submissions and the oral arguments advanced by and on behalf of the parties.  Having given full consideration to the matter, the tribunal is unable to conclude that the contentions put forward by the claimant have no reasonable prospects of success, nor that the responses thereto on behalf of the respondents have, likewise, no reasonable prospect of success.  The main emphasis contained in the respective submissions focuses upon the issue of whether or not the claimant shall be able to make out the necessary comparison for the statutory purpose of proving unlawful discrimination. A comparison may be conducted upon an actual or a hypothetical basis (see Shamoon above cited) and any tribunal shall consider both the “less favourable treatment issue" (as Lord Nicholls referred to it in Shamoon) and the "reason why" issue in the light of all of the available evidence from which such facts as might be determined and such inferences as might properly be drawn shall be subjected to full and proper scrutiny. 

10.	Accordingly, the tribunal declines to make any order of the type mentioned in Rule 19(1) of the Rules and the case may now proceed to be listed for a full hearing on the merits.     	    

Chairman:

Date and place of hearing:	8 June 2006, Belfast.

Date decision recorded in register and issued to parties: