THE INDUSTRIAL TRIBUNALS 

CASE REF:	3132/01

APPLICANT:	Darren Warke

RESPONDENT:	Creative Composites	

DECISION 

The unanimous decision of the tribunal is that the tribunal dismisses the applicant’s application. 

Appearances:
The applicant was represented by Mr D McMurray ATGWU.
The respondent was represented by Mr U Crothers of Brangam, Bagnall Solicitors.

1.	These reasons are given in summary form.

2.	The applicant claimed that he had suffered action short of dismissal for union activities, the right not to suffer a detriment for taking part in union activities and victimisation by virtue of Articles 68(1)(a) and (b), 70(1)(b) and 73(1)(a) and (b) of the Employment Rights (Northern Ireland) Order 1996.  The respondent denied the applicant’s claims.
3.	The tribunal made the following findings:-
(a)	The applicant was employed by the respondent from 1984 to date as a production operator.  He is a member of the ATGWU and is a shop steward and health and safety representative.  He advised and assisted fellow employees in the factory on a range of issues.
(b)	On 8 June 2001 the applicant applied for a position as section leader.  He was unsuccessful.

(c)	The respondent conducted an internal recruitment exercise and used an independent specialist to assist it.  Four applicants were short-listed, including the applicant.  All were interviewed and marked using a pre-set and weighted marking system.  The applicant attained the lowest score.
(d)	There is no evidence to support a breach of Article 68(1)(a) or (b) of the 1996 Order by the respondent and accordingly that aspect of the applicant’s claim is dismissed.
(e)	There is no evidence to support a breach of Article 70(1)(b) of the 1996 Order by the respondent and accordingly that aspect of the applicant’s claim is dismissed.
(f)	The applicant’s claim relates to an alleged breach of Article 73(1)(a) and (b) of the 1996 Order.
(g)	Failure to get a promotion is clearly a detriment for the purposes of Article 73 of the Employment Rights (Northern Ireland) Order 1996.
(h)	By Article 73 the detriment must arise from an act or deliberate failure to act by the employer.  In the instant case the applicant’s non-promotion is either as a result of an act or a failure to act by the employer.
(i)	Article 73(1) of the Order requires that the employee suffer the detriment as an individual.  Failure to promote an employee is treated as subjecting the employee to a detriment as an individual.
(j)	The respondent’s recruitment exercise was characterised at every step with deficiencies.  However the presence of these deficiencies did not specifically disadvantage the applicant.
(k)	The evidence has not established that the detriment that the applicant suffered was for the purpose of preventing or deterring or penalising him for being a trade unionist or taking part in trade union activities [Article 73(1)(a) and (b)].  Had the respondent wished to exclude the applicant from promotion it need only have applied the essential criteria and the applicant would not have been short-listed as he lacked an essential criterion.
(l)	The evidence adduced did not establish that the system of marking was carried out improperly or that the criteria used or weighted marking were contrived to produce a pre-determined outcome.
(m)	Accordingly the applicant’s claim is dismissed. 

Chairman:

Date and place of hearing:	12 January, 12 and 13 February, 29 March, 2 April, 6 and 20 May 2004, Belfast.

Date decision recorded in register and issued to parties: