THE INDUSTRIAL TRIBUNALS 

CASE REF:	2135/02

	

CLAIMANT:		Philip Maxwell

RESPONDENT:	The Blind Centre (NI)

DECISION 

The unanimous decision of the tribunal is that the claimant was unlawfully discriminated against on the grounds of his sex and is awarded compensation as set out in the schedule hereto. 

Appearances:
The claimant was represented by Mr G Grainger Barrister-at-Law instructed by Savage & Co., Solicitors. 
The respondent was represented by Mr J Maxwell Barrister-at-Law instructed by Bernard Campbell & Co., Solicitors.
 
1.	From the evidence that was given to the tribunal the following facts were found.

1.1	The claimant was employed as a youth worker on a three year contract by the respondent commencing on 7 July 1999 and expiring on 5 July 2002.

1.2	In November 2001 the respondent applied to BBC Children in Need for funding for two posts which were described in the application form to the Charity (which was signed by Mrs Fusco on behalf of the respondent) as “continuing to employ our youth services officer and appointing a second to work in Western Health & Social Services Board thus enabling isolated rural blind and visually impaired young people to access BCNI’s services”.

1.3	In April 2002 the Children in Need Appeal wrote to the respondent stating that the Charity would support the employment of a youth service officer.  The grant did not extend to the employment of the additional assistant.

In the letter to the respondent from the Charity the respondent was asked to “confirm the starting date for the continuation of the worker”.

1.4	The respondent decided that in the light of funding being only available for one post it would not be able to put into place the two positions of youth services manager and youth services officer.  Those two paid posts would have to be merged into the one post of youth services officer.  The respondent decided that the requirements of the position of youth services officer under the new regime were different from those of youth worker which was the job that the claimant had performed up to that time.  Despite the fact that the respondent argued that this job was very much more a managerial job than the previous job, the essential requirements of the two jobs were very similar and the claimant argued that the respondent would have been justified in merely restructuring the appointment and allowing the claimant to continue under the new job title to carry out almost all of the functions which he was already doing in his previous job.  The respondent’s application for funding had been for a continuation of that job and although it was conceded that there are additional managerial responsibilities in the new job description the claimant argued that the bulk of responsibilities were similar in both jobs.

1.5	However, having decided that they would re-advertise the post the respondent issued the job description which required “youth and community work qualifications and a minimum of three years experience in the field of youth work”.  The respondent compared the claimant who had a qualification from RSA in youth work and Miss McQuaid who had no qualification in youth work.  The respondent then looked at the experience that each applicant had in youth work and came to the conclusion that on that ground it was fair to short-list both the claimant and Miss Lee McQuaid.  They both had similar training and development qualifications.  The question arose did they both have a minimum of three years experience in the field of youth work.  Again for the purpose of short-listing the respondent stated that each had considerable part-time experience over a number of years in youth work and of course the claimant had his previous experience with the respondent on a full-time basis.  

1.6	When the list of applicants for the post was given to the interview panel and to the reception desk on the day of the interviews it named all the interviewees with the exception of Miss McQuaid who was described as “confidential” in the list.  The explanation given by the respondent was that it would be embarrassing for Miss McQuaid to be seen as an interviewee for this post if she failed to attain it.  However, no such consideration was given to the fact that the claimant was also applying for the post and was not given the same anonymous status.

1.7	A number of matters were also brought to the attention of the tribunal which the claimant alleged tended to undermine his application to be appointed to the new post.  The first of these was that a leaving party was organised on 4 July 2002.   This was the day before the interviews were due to be held for the new post.  The claimant felt that the leaving party, organised the day before he was applying for the new post, which in his mind was really a continuation of the post he already held, was designed to some extent to undermine his position.

1.8	At a number of appraisals and other meetings the director of the respondent expressed criticism of the claimant in the performance of his duties during his employment.  Mrs Fusco also had occasion to be critical of the claimant.  

1.9	On 19 June 2002 the claimant drafted a letter to his various clients and contacts in the respondent charity stating that this would be his last opportunity to contact them as his term as youth officer at the Blind Centre came to an end on 5 July 2002.  This draft letter was on the claimant’s computer but somehow a copy reached the desk of Mrs Fusco of the respondent.  There was never an explanation given as to how this happened but the fact that Lee McQuaid was the person who looked after the computers in the organisation and was Mrs Fusco’s assistant, lead the tribunal to the conclusion that on the balance of probabilities that it was Lee McQuaid who brought the letter to the attention of Mrs Fusco.  In any event Mrs Fusco did not like the tone of the letter and instructed the claimant not to send it out.  

1.10	The claimant informed the tribunal that at the outset of his interview for the new post he explained to the interview panel that he was the youth worker for the Blind Centre.  Margaret Fusco quickly interrupted the claimant, to state to the assembled meeting, that he was no longer the youth worker as he was on annual leave on the day of the interview.  This remark had the effect of deflating the claimant’s confidence in the interview.  Although Mrs Fusco denied having made the remark, it was noted by the tribunal that on the first occasion she was asked about this she stated that she could not recall having made such a remark.  These incidents, the claimant alleged, undermined his attempt to achieve the post.  

1.11	There was a time gap after Miss McQuaid’s interview as she had been interviewed first and the next person failed to come for the interview.  The interview panel stated that they had not discussed Miss McQuaid and her application.   The tribunal was not inclined to believe this, bearing in mind the fact there was a gap in time and the natural tendency of people to discuss somebody they had just interviewed, when they are waiting for the next applicant.  The tribunal looked at the marking papers of the interview panel.  It was noticeable that Mrs Fusco’s marking of the claimant gave him in the box headed “total score” a mark of twelve but then added five for presentation making a total of seventeen.  

2.	The tribunal’s findings on these primary facts:-

2.1	The tribunal in considering these facts recited above considered the terms
of the Sex Discrimination (Northern Ireland) Order 1976 as amended by Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001.  The tribunal must now look at these primary facts which have on the balance of probabilities been proved to the tribunal and must form a view as to the explanation given by the respondent to these facts.  In each of the facts referred to above the tribunal is satisfied that the respondent had  not given an adequate explanation and as these facts point to a possibility that the respondent had treated the claimant less favourably on the grounds of his sex, then the burden of proof moves to the respondent to show that it did not, or as the case may be is not to be treated as having committed an act of discrimination.

To discharge that burden it is necessary for the respondent to prove on the balance of probabilities that the treatment was in no sense whatsoever on the grounds of sex.

2.2	Returning to the facts referred to above the tribunal considered first the question of whether it was necessary at all to have a competition for this post bearing in mind the similarity of the previous post and the new post being created.  The Equal Opportunities Policy of the respondent stated at  paragraph three that when a new post is created it shall be filled by open recruitment procedures.  Paragraph four however provides “the post arising through restructuring although given new designations wholly or mainly encompassing duties previously undertaken by a current post-holder, may be filled by slotting the existing post-holder into the newly designated post”.  The tribunal having considered the evidence relating to the two posts holds that the new post was such that it wholly or mainly encompassed duties previously undertaken by the current post-holder.  This finding by the tribunal is reinforced in the tribunal’s mind by the fact that the Children in Need programme, which was funding the post, considered that it was a continuation of the previous post.  However, the tribunal find that the main reason why the new job must be considered to be a continuation of the old post is that so many of the key elements of the new post are identical to the key elements in the previous post and the additional items were areas of work that had already been carried out to some extent by the claimant.  

2.3	The second primary fact found by the tribunal and required explanation by the respondent was the requirement in the job specification that as an essential condition for a successful application was a youth and community work qualification and a minimum of three years experience in the field of youth work.  Although Miss McQuaid did have experience in youth work with the Boys Brigade she did not in the view of the tribunal have a qualification in youth and community work such as was held by the claimant.  This being the case the tribunal holds that Miss McQuaid should not have been short-listed for this post.  

2.4	The listing of the candidates for interview with one candidate namely Miss McQuaid listed as confidential merely because she was an internal candidate as of course was the claimant, is another indication of unfair treatment being accorded to the claimant.  The tribunal find that this was a less serious departure from the normal procedures than the other matters referred to above but nevertheless does tend to indicate favouritism being displayed towards the one female candidate.

2.5	In the same way the arranging of the farewell party the day before the interview and the allegation that Mrs Fusco stated during the claimant’s interview that he was not the youth worker any longer and the incident concerning the farewell letter were all matters which, although not in themselves particularly important, when added together did, in the view of the tribunal, tend to dent the confidence of the claimant just prior to and at the beginning of his interview.

2.6	Various other matters were put forward by the claimant as tending to confirm that the respondent had been biased against him.  These revolved around the interviews themselves and the questions that were asked and the method of marking.  However, the tribunal having considered these aspects and bearing in mind the time lag that has occurred between the interviews being held and the evidence being given by the interviewing panel to the tribunal, consider that it is not possible for the tribunal to conclude that the interviews were not carried out in a fair and proper manner and marked accordingly by the interviewers.

2.7	It was also suggested that the test questions for the interviews were on the computer system of the respondent organisation and that these questions would have been available to Miss McQuaid to view before she was interviewed.  This would of course have given her a most unfair advantage.  However the tribunal are not satisfied that evidence exists to back up this contention and the tribunal hold that the claimant and Mrs Fusco and indeed the other applicants for the post were properly treated at the interview stage.

2.8	However, the tribunal in considering the primary facts referred to above were not satisfied with some of the explanations given by the respondent (namely paragraphs 2.2 - 2.5 above), and for that reason the burden of proof passes to the respondent to show that on the balance of probabilities the treatment shown to the claimant was in no sense whatsoever on the grounds of sex.

3.	The decision of the tribunal.

3.1	The tribunal having already held that the respondent’s explanation for the facts referred above was unsatisfactory now has to decide whether, on the balance of probabilities the reason for this treatment was to prefer the application of Lee McQuaid to that of the claimant.  

3.2	The tribunal having looked carefully at the recorded documentation and recalled the oral evidence of the parties and the detailed written submissions of the parties, hold that the respondent was anxious to secure the appointment of Miss McQuaid in the post to the detriment of the claimant.  The tribunal’s reasoning is that it was apparent for some time prior to the funding coming through for the new appointment that difficulties had been experienced between the two senior directors of the respondent namely Mr Houston and Mrs Fusco and the claimant.  There had been meetings where criticisms had been levelled at the claimant although he had put forward the case that these criticisms were unjustified and that he had in fact carried out duties to a high standard and had been conscientious with the clients of the respondent.  However, a problem had arisen between the claimant and his superiors and resulted, in the view of the tribunal, in the respondent favouring Miss McQuaid when it came to appointing a new services officer.  Firstly, the respondent decided to have an open competition for the appointment when under their own procedures they could and should have slotted in the claimant into the new post.  Having made that decision they then allowed Miss McQuaid to be interviewed despite the fact that she did  not have the essential qualifications, as set out in the job description, of a youth and community work qualification.  The tribunal is sympathetic to the fact that Miss McQuaid did have considerable experience in youth work but 

	despite that she did not have an actual qualification which was possessed by the claimant.

3.3	Clearly the relationship between Mrs Fusco and her preferred candidate for the post, Miss McQuaid, led to the incident concerning the appearance of the farewell letter and the intervention at the interview by Mrs Fusco.  The arranging of the farewell party the day before the interview may have been more innocent but all these facts do point to the inevitable conclusion in the view of the tribunal that the respondent was anxious to secure the appointment of Miss McQuaid in preference to that of the claimant.

3.4	For these reasons the tribunal hold that the respondent discriminated against the claimant on the grounds of his sex.

4.	Compensation

4.1	The tribunal then considered the claimant’s loss.  On leaving his position with the respondent he did not immediately apply for a job but about three months after he lost the job he applied for and obtained temporary clerical work at a salary of £8,000.00 per annum.  He continued this work until the following summer when he went back into full time education.  The tribunal therefore considers that the claimant was not actively seeking commensurate work at that time, similar to the work which he had done before.  The tribunal were also aware of the qualifications of the claimant  who had studied electrical and electronic engineering and should have been able to obtain more remunerative employment.  For that reason the tribunal award the claimant one half of the difference between the salary he would have earned in the new job with the respondent at £15,950.00 per annum and the sum of £8,000.00 which he did earn during that year.  Consequently the amount payable is half of £7,950.00 which is the sum of £3,975.00.  During the period from the termination of his employment on 5 July 2002 and early October 2002 the claimant was in receipt of Job Seeker’s Allowance.

4.2	The tribunal also awards the claimant the sum of £10,000.00 as compensation for injury to feelings.  The tribunal considered the guidance given to tribunals in Vento -v- Chief Constable of West Yorkshire Police 2003 ICR 318 and the evidence of the claimant who told the tribunal of his feelings of distress at his treatment when he was not reappointed to the post.  He had invested a great deal of his energy and commitment to the post which he had held working with the young people and he had a great affinity with them.  The way he felt he was treated caused him to lose his confidence in his ability to pursue his chosen career of working with visually impaired young people and indeed caused him to suffer depression.  He told the tribunal that because of this experience he has done no youth work since he left his position with the respondent.  He had always found his youth work to be a very important part of his life.  The tribunal hold that this was a serious blow to a young man’s self esteem at a critical point in his development as a youth worker and justifies this level of compensation for injury to feelings.

The tribunal decided not to award interest on this award under the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996 as some of the delays in the progress of the hearing of this case were as a result of the unavailability of the claimant.  

Your attention is drawn to the notice below which forms part of the decision of the tribunal.

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

	
Chairman:

Date and place of hearing:	25-26 March 2004, 17-18 May 2004,
					10-11 November 2004, 8 and 20 December 2004,
					10-11 January 2005 and 21 February 2005, Belfast.

Date decision recorded in register and issued to parties: