Beck v Southern Education & Library Board (Pre-Hearing Review) a (16 December 2002)
THE INDUSTRIAL TRIBUNALS

CASE REF:	01385/02

APPLICANT:	Margaret Beck

RESPONDENT:	Southern Education & Library Board

DECISION ON A PRE-HEARING REVIEW
The unanimous decision of the tribunal is that the applicant’s complaint has no reasonable prospect of success and is misconceived.  The tribunal orders the applicant to pay to the Secretary a deposit of £150 as a condition of being permitted to continue to take part in the proceedings relating to this matter.

Appearances:
The applicant was represented by Mr Ronan Lavery of Counsel, instructed by Eamonn McEvoy, Solicitors.
The respondent was represented by Mr Stephen Law, of Counsel, instructed by the Legal Department of the Southern Education and Library Board.

1.	By her Originating Application, presented on 5 June 2002, the applicant complained that the respondent had indirectly discriminated against her on ground of her sex contrary to the Sex Discrimination (NI) Order 1976 [“the 1976 Order”] and relevant European Law.  On 26 February 2002, the applicant had applied for the post of Area Youth Officer with the respondent.  Having been duly notified, on 6 March 2002, the applicant advised the respondent Human Resources Manager of her non-availability for interview on 15 March 2002 as she had planned annual leave to travel abroad on a pre-booked and pre-paid holiday in Italy and would be unavailable from 12-18 March 2002.  She was then notified by letter dated 7 March 2002 that she was invited to attend an interview and that the selection panel were unable to accommodate her request for an alternative interview date.  The applicant then telephoned and wrote the respondent on 11 March 2002 to advise that she could not attend the interview on 15 March 2002.  The applicant appears to have further sought reasons why she had not been accorded what she referred to in her Originating Application as “fair and equal consideration”.  On 25 April 2002 the applicant sought reasons why the post she had applied for was not advertised earlier or why the interviews were not scheduled earlier.  She received no response to this request.  She therefore complained that the insistence by the respondent that the interviews proceed on 15 March 2002 as planned was a requirement that was not justified in law and that this requirement was contrary to the 1976 Order.  The tribunal heard that the applicant has a current salary of £20,000.  

2.	In its Notice of Appearance dated 20 August 2002, the respondent contended that the selection panel had been scheduled to convene on 15 March 2002 to allow for ratification of the successful appointee at its Board meeting on 21 March 2002, as it is normal practice for the Board to approve such receipt of applications.  The respondent selection panel had considered the applicant’s request when it met to shortlist applicants on 7 March 2002.  There was no other suitable date for the selection panel outside the pre-arranged date of 15 March 2002.  The selection panel was unable to accommodate either the applicant’s request or that of a male candidate for the post who had made a similar request.  The respondent denied that it had discriminated against the applicant as alleged.  

3.	Mr Lavery contended before us that there were 10 applicants for the post of Area Youth Worker, 7 male and 3 female.  Two of the female candidates and one male candidate were unable to attend on 15 March 2002.  Mr Lavery did not know if the circumstances of their non-availability were comparable to that of the applicant.  Thus, he inferred that 2/3 of the female candidates were unable to attend for interview as opposed to 1/7 of the male candidates.  He argued that, statistically, this meant that it was much more difficult for a female to be appointed to the post.  Mr Lavery argued that the respondent’s actions constituted a “provision, requirement or condition” that affected a considerably larger portion of women than men and which it could not show to be justified, contrary to Article 3 of the 1976 Order as amended by Regulation 2 of the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (NI) 2001.  

4.	Mr Law argued that the requirement that the interviews proceed on 15 March 2002 was justifiable, and that to require alternative days to be arranged at the request of candidates would place an intolerable burden on the respondent.  The post in question had been vacant for four months and there was a degree of urgency in filling it.  It is normal respondent policy to have the nomination of the successful candidate ratified at the next Board meeting, which was arranged for 21 March 2002.  Mr Law submitted that it was not impossible, merely inconvenient, for the applicant to have complied with the interview dated of 15 March 2002, and that she was attempting to frame a case of discrimination on this inconvenience.  He contended that the male candidate was similarly incommoded.  

5.	The tribunal, having considered the contents of the Originating Application and of the Notice of Appearance and the oral arguments advanced on behalf of the parties, makes the following determination pursuant to Rule 7(4) of Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (NI) 1996;

(i)	The tribunal determines that the contentions of the applicant have no reasonable prospect of success for the following reasons;

(a)	The tribunal does not accept the argument put forward by Mr Lavery that 2/3 of the female candidates were unable to attend. There is no evidence of this inability before the tribunal, and Mr Lavery conceded before us that he was unaware of the circumstances of the non-availability of the other applicants, or if these were comparable to the applicant’s. In this respect the tribunal is not satisfied that the applicant can frame a case of direct or indirect sex discrimination within Article 3 of the 1976 Order, as amended by Regulation 2 of the Sex Discrimination (Indirect Discrimination & Burden of Proof) Regulations (NI) 2001. The tribunal determines that, rather than being unable to, the applicant chose not to attend the interview on 15 March 2002. In this regard, the tribunal prefers the submission of Mr Law that it was not impossible for the applicant, merely inconvenient, that the interviews were scheduled for 15 March 2002. 

(b)	Moreover, the tribunal determines that the decision of the respondent to proceed with the interviews on 15 March 2002 affected each prospective interviewee equally, regardless of gender, and can find no basis in law for her complaint that she did not receive “fair and equal consideration” on ground of her sex. It appears that the interview date similarly affected a male applicant for the post.

(c)	Furthermore, the tribunal considers that, prima facie, the respondent appears to have a justification for proceeding with the 15 March 2002 date for interviews. It had considered the applicant’s request for an alternative date on 7 March 2002, and found there was no other suitable date for the selection panel which would meet the required ratification date of 21 March 2002. 

(ii)	For the reasons given in paragraph 5(i) above, the tribunal determines that these proceedings are misconceived and show no viable ground for a complaint of sex discrimination to an Industrial Tribunal. Accordingly, the tribunal determines that the complaint is misconceived and has no reasonable prospect of success.

(iii)	The applicant, Margaret Beck, pay the Secretary of the Office of the Industrial Tribunals the amount of £150 as a condition of being permitted to take part in the proceedings relating to the matter to be determined by an Industrial Tribunal in her case; the tribunal having taken reasonable steps to ascertain the ability of the applicant to comply with such Order and having taken into account the information so ascertained in determining the amount of the deposit.  If the applicant, Margaret Beck, does not pay to the Secretary of the Office of the Industrial Tribunals and the Fair Employment Tribunal, 20-24 Waring Street, Belfast, BT1 2EB the amount of £150 within the period of 21 days beginning with the date when this decision is issued to the parties, the tribunal shall strike out the Originating Application.  The tribunal may allow a further period, not exceeding 14 days, for the payment of the deposit, in the light of representations (if any) made by the applicant within the same period of 21 days.

(iii)	No further or other Order is made. 

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Date and place of hearing:  16 December 2002, Belfast

Date decision recorded in register and issued to parties: