INDUSTRIAL TRIBUNALS

CASE REF: 1510/02

APPLICANT:		Brian Austin

RESPONDENTS:	1.	Diarmuid O Tuama		(who was removed as a 
 Respondent by agreement 
 of the parties and by Order 
 of the Tribunal)

2.	Board of Governors of	 (added as Respondent by
Bunscoil Phobal Feirste	   Order of the Tribunal)

DECISION

The unanimous decision of the tribunal is that the applicant’s claim that the respondent sexually discriminated against him is upheld and that the respondent should pay a sum of £5,000.00 to the applicant in compensation for injury to feelings.

Appearances:

The applicant was represented by Mr Frank Bunting of Irish National Teachers Organisation.

The respondents were represented by Mr Lavery Barrister-at-Law, instructed by Mr Paul Graham, Solicitor.

At the outset of the hearing the respondent applied for an amendment to the name of the respondent in the application and to replace the named respondent Mr O Tuama with the name of his employer the Board of Governors of Bunscoil Phobal Feirste.  The applicant consented to this amendment and the case proceeded on the basis that the Board of Governors of the School were the respondents in place of Mr O Tuama.

1.	The Facts

1.1	The applicant who was a teacher at St Galls Primary School, Belfast applied for an advertised post of Vice-Principal at Bunscoil Phobal Feirste.  This advertisement had appeared in April 2002 and the applicant submitted his application form during April.

1.2	The applicant heard nothing further from the School until he received a letter which was dated 29 April 2002 and the envelope of which was post-marked 7 May 2002.  The letter arrived with the applicant on 8 May 2002 and had instructed him to attend an interview at the school on 7 May at 6.00 pm, being the day before he actually received the letter.

1.3	The applicant immediately telephoned to the respondents school and explained to the principal what had happened and followed this telephone call with a fax to the school.  The telephone call to the principal had been at about 8.30 in the morning and the applicant had hoped that the decision regarding the successful appointment might have been delayed pending an interview for him.  However, it appears that the school had notified the successful applicant on the evening before, shortly after the interviews had concluded.

1.4	There had been three applicants for the post two women and one man.  The man being the applicant.

1.5	Earlier that year there had been an unsuccessful recruitment process where two candidates had been interviewed but neither had been considered suitable.

1.6	After the advertisement in April the school decided that as they only had three applicants for the post they would interview all three applicants.  They did not carry out any short-listing process.

1.7	A date was fixed for the interviews namely Tuesday 7 May 2002 and the two female applicants, who were both teachers at the respondents school, were handed details of the interview arrangements sealed in envelopes.  These were handed to them by the school secretary on the afternoon of 29 April on which day the secretary posted a similar letter to the applicant.  Unfortunately a Bank Holiday intervened on Monday 6 May which meant there was no post on that day.  The letter had been posted on Monday 29 April 2003 and was posted with a first class stamp.  For some unexplained reason the letter was not delivered to the applicant’s address until Tuesday 7 May.

1.8	When the applicant received no satisfactory explanation to his complaint that he should have been interviewed he contacted the Equality Commission and subsequently commenced these proceedings.

2.	The Applicant’s Case

2.1.	The applicant argued that he was treated unfairly in the selection process in that his letter was sent to him by post whilst the letters to the other two female applicants were delivered by hand.  Furthermore the respondents knew the applicant’s telephone number because it was on his application form and yet no attempt was made to contact him on the night of the interviews to find out why he was not attending.  The matter could easily have been rectified by such a telephone call or by a delay in notifying the successful candidate until the next day when contact could have been made with the applicant as to why he had not attended the interview.  There were after all only three interviewees.

3.	The Respondents Case

3.1.	The respondents stated that the interview panel had been drawn from various diverse areas of Ireland, the furthest traveller having come from Dublin.  It would have been unreasonable to have prolonged the interview process to another day as it would have meant that the people travelling a long distance had to come to the meetings on two occasions.

3.2.	The respondents felt that it would have been unfair of the respondents to have contacted the applicant by telephone on the night of the interviews as it would have been treating him differently to the other interviewees who had attended.  Consequently the interviews proceeded and because the Irish Speaking Education Movement is such a close knit group it was felt important to notify the successful applicant that evening rather than have a situation where rumours could get around.

4.	Decision of the Tribunal

4.1.	The tribunal unanimously hold that the applicant was discriminated against because of his sex.

4.2.	The tribunal find that in the light of the fact that the two female applicants had received their interview notification by hand on 29 April whilst the applicant’s interview notice had been posted by first class post, he was immediately at a disadvantage as he had less time to prepare for the interview.

4.3.	In the circumstances when the two female applicants who had been given their notices arrived but the one person who had received a notification by post did not arrive the tribunal hold it was encumbrant on the respondents to either telephone to the applicant that evening, to ascertain whether or not he had received his notification, or alternatively, to have delayed notifying the successful applicant that she had been successful until such time as an inquiry could have been made with the applicant on the next morning as to his non-appearance at the interview.

4.4.	For these reasons the tribunal hold that the applicant was treated “less favourably” than the successful applicant for the post under the terms of the Sex Discrimination (Northern Ireland) Order 1976 (“the Order”).

4.5.	The next question that the tribunal decided was whether such less favourable treatment was received by the applicant because of the applicant’s sex?

4.6.	The tribunal were not satisfied with the respondents answer to the questions.  Why not telephone to the applicant on the Tuesday night?  Why not hold the announcement of the decision of the interview panel until the next morning to allow time to contact the applicant?

The tribunal believes that the interview panel was anxious to appoint a woman as vice principal, as the principal was a man and such an appointment would achieve a balance.  Thus although there is no such direct evidence of this, the tribunal is entitled to draw this inference upon the failure of the respondents to explain any other satisfactory reason for the respondents conduct of the setting up and administration of the interviews and upon the applicants non-appearance.

4.7.	Under the provisions of Article 63A of the Order the tribunal can conclude, in the absence of an adequate explanation on the part of the respondents, that facts suggesting discrimination on the part of the respondent amount to unlawful sex discrimination.

4.8.	Following the guidance laid down to tribunals in King –v- The Great Britain-China Centre 1991 IRLR 513 CA, the tribunal was satisfied that the applicant had presented a case, which on the balance of probabilities would be successful and although there was no direct evidence of sexual discrimination, the tribunal was entitled to draw certain inferences from the primary facts which were found by the tribunal and which were largely agreed between the parties.  In the case of King –v- Great Britain China Centre, Neill L J said:-

‘(4)	Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination.  If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory, it will be legitimate for the tribunal to infer that the discrimination was on racial grounds’.

That was a case of racial discrimination, but the approach which Neill L J described is equally capable of being applied where the allegation is that the discrimination was on the ground of sex.

4.9.	A similar problem over lack of evidence of discrimination was dealt with by the House of Lords in Shamoon –v- Chief Constable of the RUC (2003 IRLR 285).  In this case, which concerned the promotion of a male police officer in preference to a woman, Lord Hope of Craighead said:-

‘In this case the appellant was, as I have said, entitled to a finding that she was treated less favourably than the male chief inspectors.  In other words, she had been discriminated against and she was a woman while they were men.  It cannot be said that the discrimination was clearly not on the ground of her sex.  There was no evidence to that effect.  The tribunal say in paragraph 3.11 that there was no evidence that the work of the male chief inspectors was materially different from hers.  So this was a case where it was for the employer to provide an explanation.  The evidence on which the respondent relied for the explanation was the evidence of Superintendent Laird.  If the tribunal was of the view that his explanation was inadequate or unsatisfactory, it was open to it to infer that the discrimination was on the ground of the appellant’s sex’.

4.10.	Following this line of authority the tribunal hold that the respondents did discriminate against the applicant on the ground of his sex and award £5,000.00 to the applicant for injury to feelings.

4.11.	The tribunal award interest on the sum of £5,000.00 in accordance with Regulation 5 of the Industrial Tribunal (interest on Awards in Sex Disability Discrimination Cases) Regulations (Northern Ireland) 1996, calculated as follows:-

8 May 2002 – 4 December 2003  – 
573 days @ 8% on £5,000.00		= £627.95

This is a relevant decision for the purposes of the Industrial Tribunal (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 4 December 2003, Belfast.

Date decision recorded in register and issued to parties: