THE INDUSTRIAL TRIBUNALS

CASE REF:	  148/08

CLAIMANT:			Ronald Campbell	

RESPONDENT:		Port of Larne, Larne Harbour Ltd	

DECISION 
The unanimous decision of the tribunal is that the claimant’s claims of unlawful discrimination are not well founded.  Accordingly, those claims are dismissed.

Constitution of tribunal:
Chairman:		Mr P Buggy
Members:		Ms N Wright
			Mr A Crawford		

Appearances:
The claimant appeared in person.
The respondent was represented by Mr M Wolfe, Barrister-at-Law, instructed by McKinty and Wright, Solicitors.
REASONS

1.	Age discrimination is now prohibited, in certain employment situations, by the Employment Equality (Age) Regulations (Northern Ireland) 2006 (“the Regulations”).

2.	The provisions of the Regulations which are relevant in the present context came into force on 1 October 2006.  

3.	Article 7(1) of the Regulations makes it unlawful for an employer, in the context of an employment recruitment process, to discriminate against a person:

	“(a)	in the arrangements he makes for the purpose of determining to whom he should offer employment;
	…

	(c) 	by refusing to offer, or deliberately not offering, [that person] employment”.

4.	In the context of Regulation 7, the word “discriminate” covers both age discrimination and victimisation discrimination.

5.	What is commonly described as “direct” age discrimination is provided for at Regulation 3, in the following terms:

	“(1)	For the purposes of these Regulations, a person (“A”) discriminates against another person (“B”) if – 

		(a)	on the grounds of B’s age, A treats B less favourably than he treats or would treat other persons …

		…

	and A cannot show the treatment … to be a proportionate means of achieving a legitimate aim”.

6.	Victimisation discrimination (which, in essence, is retaliatory discrimination) is defined at Regulation 4.  It covers only situations in which “A” has treated “B” less favourably than A treats or would treat other persons in the same circumstances, and does so by reason that:

(1)	B has carried out one of a number of specified acts (usually referred to as a “protected act”) or 
(2)	A knows that B intends to carry out a protected act, or suspects that B has done or intends to do a protected act.

7.	For the purposes of Regulation 4, a person carries out a protected act only if his actions fall within the scope of the list which is set out at paragraph (1) of Regulation 4.

8.	According to that list, B carries out a protected act if B has:

	“(a)	brought proceedings against A or any other person under these Regulations;

	(b)	given evidence or information in connection with proceedings brought by any person against A or any other person under these Regulations;

	(c)	otherwise done anything under or by reference to these Regulations in relation to A or any other person; or

	(d)	alleged that A or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of these Regulations … “

The claim and the defences

9.	In 2007, the respondent carried out a recruitment exercise in respect of a vacancy for a part-time harbour constable.  The claimant was an unsuccessful candidate for that vacancy.   Indeed, he was not on the final shortlist in respect of that vacancy.

10.	Essentially the same role had been the subject of previous recruitment exercises in which the claimant had participated.  Firstly, the claimant was an unsuccessful candidate in respect of essentially the same role when a vacancy was advertised in 2003.  On that occasion, the claimant was told that he could not be appointed because of his age.  He complained to the respondent, at that time, about that age bias. Secondly, when a vacancy in respect of this role became available in 2005, the claimant was again an unsuccessful candidate.  On that occasion, he did not complain.

11.	The claimant was born in October 1945.

12.	During the course of the main hearing, the claims and defences in these proceedings have been updated (by being modified, amplified and refined).  Those updated claims and defences can be summarised as follows:

13.	The claimant’s claims are based on the following factual contentions:

(1)	The members of the shortlisting committee (Ms Elsie French and Mr John Synnott) undergraded the claimant in respect of certain, specified, shortlisting criteria.

(2)	Ms French and Mr Synnott overgraded Candidate 8 in respect of certain, specified, shortlisting criteria.

(3)	They overgraded Candidate 16 in respect of certain, specified, shortlisting criteria.

(4)	The members overgraded Candidate 38 in respect of certain, specified, shortlisting criteria.

14.	The claimant says that those undergradings and overgradings occurred because the respondent did not want to employ a man of his age.  Therefore, according to the claimant, his age was an important reason for the various alleged undergradings and overgradings, and the respondent has directly discriminated against the claimant on age grounds.

15.	The respondent contends that, in general, the various gradings were appropriate.  The respondent’s fallback position is that, if and to the extent (if any) that any grading is inappropriate, this happened for a reason wholly unrelated to the claimant’s age.

16.	Under Regulation 3 of the Regulations, age discrimination does not occur even if A discriminates against B on the ground of B’s age, if A shows the treatment ” … to be a proportionate means of achieving a legitimate aim”.  In these proceedings, the respondent does not argue in favour of any such justification defence.  

17.	Throughout the main hearing, and throughout the period leading up to the main hearing, the main thrust of the claimant’s allegations related to the age discrimination aspect of this case. However, in view of the claimant’s account, as set out in his claim form, of the background to the 2007 recruitment exercise, and in view of the fact that the claimant is self-represented, we thought it appropriate to construe the claim form as including a claim that the various specified undergradings and overgradings had occurred because the claimant had complained about the imposition of age eligibility criteria in the 2003 recruitment exercise.  (See above, at paragraph 10).

18.	The respondent’s position in relation to that aspect of the case is as follows.  First, the respondent contends that, in reality, the claimant himself has never made a complaint of victimisation discrimination.  Secondly, the respondent contends that an allegation of age bias, which was made prior to the date of coming into operation of the Regulations, is not within the list of “protected acts” which are set out at sub-paragraphs (a)-(d) of paragraph (1) of Regulation 4.  (See paragraph 8 above).  Thirdly, the respondent relies upon its contention that the various gradings were appropriate.  Fourthly, the respondent contends that the claimant’s 2003 allegation of age bias was not a significant factor in the context of the awarding of the various relevant gradings.  

19.	The claimant contends that, by reason of the acts of age discrimination and/or victimisation discrimination described above, the respondents have unlawfully discriminated against him, in connection with this recruitment process, contrary to Regulation 7 of the Regulations, in the arrangements made for the purpose of determining to whom the respondent should offer employment and by refusing to offer him employment.

20.	The respondent accepts that it has legal responsibility in respect of any acts of unlawful discrimination carried out by Ms French or by Mr Synnott.

The sources of evidence

21.	The claimant gave evidence on his own behalf.

22.	The following gave evidence on behalf of the respondent:

(1)	Ms French.  (See paragraph 13 above).

(2)	Mr Synnott.  (See paragraph 13 above).

(3)	Mr Christopher Mills.

23.	The claimant had secretly recorded his shortlisting interview, during the course of the 2007 recruitment process.  Mr Mills gave expert evidence in relation to technical controversies which had arisen in connection with that tape recording.  We had some doubts about the admissibility of the evidence of Mr Mills; however, because of the overall factual and legal context of this case, it has not been necessary for us to arrive at a definitive view on that matter.

24.	We took full account of the evidence provided by the tape recording itself.  The respondent did not object to the admissibility of that evidence.  In taking account of that evidence, we took note of the Employment Appeal Tribunal decision in Chairman & Governors of Amwell View School v Dogherty [2007] IRLR 198.

25.	We took account of the tape recording because it was appropriate to do so, having regard to legal principles which relate to the admissibility of evidence.  However, we wish to make it clear that we consider it to be entirely inappropriate and improper for an interviewee to secretly record a recruitment interview.

26.	We also saw:

(1)	two large bundles of documents, consisting of several hundred pages; and

(2)	various miscellaneous documents which were presented to us, by the claimant or by the respondent, during the course of the hearing.

27.	We told the parties that we would only have regard to any document within any bundle if our attention was specifically drawn to that particular document.

The Submissions

28.	With the agreement of both parties, we were provided with written submissions from each party (“Submissions”).  

29.	Each party was at liberty to respond, by way of written comments (“Comments”), to the opposing party’s Submission; the claimant availed of that opportunity and the respondent chose not to avail of that opportunity.  However, there was in any event a further hearing, on 9 December 2008, at which each party was free to present oral arguments (although the main purpose of that day’s hearing was to make sure that each party would be available to respond to any queries from the tribunal in relation to that party’s Submission).

30.	Prior to the exchange of Submissions, we drew the attention of the parties to two tribunal decisions: Moore v Food Safety Promotion Board (Case Ref 29/04FET, Decision issued 27/04/2007) and Bowers v Unite (Case Ref 92/06FET, Decision issued 16/10/2008).

31.	Earlier in this Decision, we have already identified the main thrust of the claimant’s claims, and of the respondent’s defences.  In arriving at our decision, we have taken careful note of all the arguments which have been made to us, whether in the course of a Submission, in the course of Comments, or in the course of oral argument.  Specific reference is made to some of those arguments during the course of this Decision.  The Submissions and the Comments provide a permanent record of much of the argument on each side of the case.  In those circumstances, it is unnecessary for us to provide comprehensive details in this Decision of all of the arguments.

The facts

32.	In relation to matters relevant to the issues which have been determined, we made the following findings of fact:  

(1)	In 2003,  the respondent had a vacancy for an Auxiliary Harbour Constable.  The claimant applied for that vacancy.

(2)	According to the Personnel Specification which was prepared in respect of that vacancy, being aged 35-53, at the time of that recruitment exercise, was an essential criterion in respect of the post.  However, at that time, the claimant was more than 53 years of age.  

(3)	Nevertheless, he was interviewed for the post.  (There was controversy between the parties on the question of whether or not the claimant was interviewed in respect of the 2003 recruitment exercise.  However, on this issue, we prefer the testimony of the claimant.  We regard the claimant as an honest and reliable witness.  It is his clear recollection that he was interviewed in 2003).  At some stage during the month of February 2003, the claimant became aware that he was regarded as being ineligible (on age grounds) for the post.  He wrote to Mr Galway, the General Manager of the Port of Larne, on 20 February 2003, in the following terms:

		“I applied for the position of Auxiliary Harbour Constable from an advertisement in the Larne Times (no age restriction mentioned) and received an application form and detailed job description (still no age restriction mentioned) and duly returned the completed application to yourselves.

	Having then had no correspondence from your office for approximately two weeks, I contacted your Personnel Administrator, Mrs Craig, and was shocked to be told by her that I had not been shortlisted for the job as I did not meet the age criteria”.

(4)	The Harbour Master, Mr A K W Gardiner, replied to that letter on 24 February 2003, in the following terms:

		“You have been advised by our Personnel Administrator, Mrs Craig, that your age is outside our criteria which is correct.  The Employment and Training Agency recommended that we should not include any age specification in an advertisement.  The “essential age” range that we use for the selection of Auxiliary Harbour Constables is 34 to 53 years of age.  Unfortunately you are outside this specification and hence we cannot progress your application any further.  All the applicants for the post recently advertised had a policing background.  The selection process is based on merit.

	I understand the basis for your complaint and apologise for any inconvenience and disappointment created.  In light of this we will be making changes to our recruitment procedures and will include the “essential age” criteria in all job descriptions forwarded to applicants”.

(5)	The promise made in the second quoted paragraph of the letter of 24 February was not kept. When the role was again the subject of vacancy advertisements, during the course of 2005, there was once again an age criterion, but the existence of that age criterion was not included in the recruitment documentation.

(6)	According to the 2003 criteria, it was essential for applicants to be aged between 35 and 53, and it was desirable that applicants be aged between 40 and 50.

(7)	There were two recruitment exercises in respect of this role during the course of the year 2005.  In respect of both exercises, it was an essential criterion that candidates be aged between 30 and 58.  (So the relevant essential criterion in 2005 was more generous to applicants, in that it allowed people between the ages of 54 and 58 to apply).

(8)	In the first of the 2005 recruitment exercises, it was stated to be desirable that candidates be aged between 35 and 53.  (In other words, the 2003 essential criterion had become a desirable criterion).

(9)	For the purposes of the second of the relevant 2005 recruitment exercises, the relevant desirable criterion was that the candidates be 45 to 53 years of age.

(10)	According to the documentation which was produced for the purposes of the relevant 2007 recruitment exercise, there was no applicable age criterion, either as an essential criterion or as a desirable criterion.  However, as late as 2005, the respondent thought that it was important that an appointee should not be aged 59 or upwards.

(11)	Against that background, it is very surprising that, according to the respondent, no age eligibility criterion whatsoever was imposed in connection with the 2007 recruitment exercise.  After all, discrimination on the grounds of age is not unlawful if it is shown that the relevant act is a proportionate means of achieving a legitimate aim.  (See Regulation 3 of the Regulations).

(12)	Even more surprising is the lack of a paper trail.  We have been provided with absolutely no written record of decisions which must have been made whereby the essential criterion in respect of age was changed from the age range 35 to 53 to the age range 30 to 58, and was finally removed.  We have been provided with no written record of the subtle judgements which must have been necessary to arrive at a situation in which a desirable age criterion based on the 40 to 50 age group became a desirable criterion based on the 35 to 53 age group, later became a 45 to 53 age group, and later still was abandoned.

(13)	Yet more surprising is the fact that the employee-witnesses, Mr Synnott and Ms French, professed themselves to be unclear, in this connection, on the questions of who decided what, when or why.

(14)	The claimant was an applicant for the January 2005 recruitment exercise.  He was interviewed, for the purpose of deciding whether or not he should be shortlisted, even though in 2005, he was already ineligible on age grounds (because the then essential age criterion was 30-58 and he was 60 at that time).

(15)	Neither Mr Synnott nor Ms French were able to provide a rationale for the decision to interview an applicant who was clearly ineligible.  Neither provided us with clear and convincing testimony on the question of who made the decision to interview this ineligible candidate.

(16)	Because of all the matters referred to at sub-paragraphs (13) and (15) above, we have considerable reservations about the credibility of Mr Synnott in relation to some aspects of his testimony.  Because of all the matters referred to in those sub-paragraphs, we have considerable reservations about the credibility of Ms French in relation to some aspects of her testimony. 

(17)	The claimant was not shortlisted in respect of the 2005 vacancy for which he applied.  The claimant found the 2005 shortlisting interview to be an uncomfortable experience.  He thought that Mr Synnott’s interviewing style was hostile and intimidating, and that Mr Synnott queried the claimant’s answers in a disbelieving and aggressive manner.

(18)	We do not accept that Mr Synnott’s 2005 interview style was in any sense inappropriate.  The claimant’s comments in respect of Mr Synnott’s interviewing style are of a subjective nature.  We do not doubt that the claimant found Mr Synnott’s manner of questioning to be hostile, intimidating, disbelieving and aggressive.  However, Mr Synnott has denied these allegations and we note that Mr Synnott’s interviewing style was consistently polite during the 2007 shortlisting interview of the claimant.  (We know this because the claimant secretly taped that interview, and we have heard the tape of that interview).

(19)	In respect of the 2003 recruitment process, the claimant made serious personal allegation against Mr Synnott, which the respondent rejected.  On 23 April 2003, as part of his complaint about that process, the claimant wrote to Mr Galway, in the following terms:

		“Further to my application for the above vacancy and subsequent rejection on age grounds, I have been reliably informed that a colleague of your Security Manager has filled the position.  

	I have always held you in high regard Mr Galway and would find it difficult to believe that you were involved in this sham of a procedure …   I now find that even if I had met the age criteria, I probably wouldn’t have got the job anyway”.

In the quoted extract from that letter, the claimant was, in effect, accusing Mr Synnott of having inappropriately manipulated the 2003 recruitment process, with a view to ensuring that Mr Synnott’s former colleague got the job.  

(20)	Ms French told us that she could not remember interviewing the claimant in 2005.  This professed lack of recollection contributes to our reservations about Ms French’s reliability as a witness.  The claimant had made very serious allegations arising out of a vacancy for a harbour policeman in 2003.  He applied for much the same vacancy in 2005.  Before his shortlisting interview for that 2005 vacancy, he contacted Ms French and asked if he was being seen as a serious contender for the post or was he, instead, just being given an interview because of the 2003 complaint.  Yet, according to Ms French, she cannot remember interviewing the claimant in 2005.  

(21)	The 2007 vacancy was advertised in October 2007.  The shortlisting panel consisted of Mr Synnott and Ms French.  According to the advertisement, the title of the post was “Harbour Constable (Part-Time - 21 hours p/w min)”.  The same advertisement specified that applicants must have relevant police experience, hold a current UK driving licence and be available to work shifts.  No other essential criteria were mentioned in the advertisement.  

(22)	Mr Synnott is the respondent’s Port Security Manager.  He had previous service in the RUC and in the Airport Police (at Belfast International Airport).  Ms French is the respondent’s Office Supervisor, with special responsibility for human resources matters.

(23)	A Job Description (“JD”) was drawn up.  According to that JD, relevant knowledge was as follows:

“Knowledge of the duties and responsibilities of a Police Constable is highly desirable.

A good standard of education.

A good command of the English language, both written and oral.

A valid First-Aid Certificate would be advantageous.

Good local knowledge."

(24)	According to the JD, the relevant “Experience” was as follows:

“Previous experience of working with the public.  

The successful applicant will have experience of working alone and unsupervised and also as part of a team.

Previous supervisory experience will be beneficial.

Previous experience of liasing with emergency services and other agencies will be advantageous.  

Experience of customer care issues.

Awareness of the issues involved in communicating with others whose first language is not English.

Experience of shift work”.

(25)	Mr Synnott and Ms French agreed on a job specification in respect of the post.  There were significant differences between the Job Specification (“JS”) and the JD.  Some examples:

(a)	The JS made no reference to awareness of issues involved in communicating with others whose first language is not English.

(b)	The JS included “commanding appearance” as a desirable criterion.  (There was no equivalent in the JD).

(c)	Among a considerable number of essential and desirable criteria,  the JS included the following desirable criterion:

“previous experience with a recognised police force”.

(26)	Mr Synnott construed the phrase “recognised police force” as a reference to any civilian police service within the United Kingdom, and any harbour police force within the United Kingdom.

(27)	There were 27 applications for the vacancy.  Mr Synnott regarded 14 of the applicants as having demonstrated previous experience with a recognised police force.  All those 14 applicants were invited for interviews, with a view to deciding whether they should be shortlisted.

(28)	In advance of the shortlisting interviews, Mr Synnott and Ms French provisionally agreed that they would aim to shortlist three people.  In these proceedings, the claimant does not allege that this provisional agreement was tainted by discrimination, or that the ultimate decision to shortlist no more than three candidates was affected by discrimination.  Instead, he argues that, had it not been for the alleged unlawful discrimination, he would have been among the three who were shortlisted.

(29)	Before considering the criteria which were actually used for the purpose of deciding who should be shortlisted, and before considering how those criteria were applied, it is appropriate to consider the duties of the relevant post.  According to the JD, the job purpose was to maintain security, to prevent crime and ensure a well-ordered regime within the confines of the Port of Larne.  In reality, the duties of the post were rather basic and mundane.  This is illustrated by the fact that Mr Synnott thought it appropriate to ask the following questions, as standard questions, in the course of the shortlisting interviews:

“21	Without the variety of a large Police force, no prosecutions, little crime, few accidents, what do you envisage are the roles and responsibilities of a Harbour Constable?

22.	The Harbour Police are not armed and do not carry handcuffs, batons, or defensive sprays – How do you feel about this?

23.	Harbour Police rarely take a case to Court but pass persons to the PSNI for prosecution – Why do you think we do this?

24.	The job provides steady employment but there is little scope for promotion – What are your views on this?”

(30)	At shortlisting stage, the claimant was assessed as being seventh in order of merit. 

(31)	Candidates who we will refer to as “Candidate 8”, “Candidate 16”, and “Candidate 38” were shortlisted.  None of those candidates was more than 53 years of age.  (See sub-paragraph (6) above).

(32)	The criteria which were actually used at shortlisting stage were significantly different from the criteria referred to in the JD, and are also significantly different from the criteria as set out in the JS.  They were contained in the marking sheets which the shortlisting panel completed at shortlisting stage.

(33)	Those criteria consisted of 32 separate criteria in all.  They were categorised as follows:

(a)	Physical make-up

(b)	Attainments

(c)	General intelligence

(d)	Disposition

(e)	Circumstances

(34)	The criteria under “Physical make-up” were as follows:

(a)	No illness/disease

(b)	Injury/disability or medical defects.

(c)	Physical size and strength.

(d)	Clean and tidy appearance.

(e)	Keen interest in job, training, prospects.

(35)	The criteria under the “Attainments” category were as follows:

(a)	Trained and qualified in current Police Regulations and Procedures.

(b)	Awareness of Transport Security Requirements.

(c)	Recent/relevant Police experience.

(d)	Any promotions within the Police Service?

(e)	Any specialised training?

(f)	Experience of working in the community.

(g)	Driving experience.

(h)	First-Aid Certificate.

(i)	“Port-related work experience”.

(j)	Computer experience.

(36)	Under the “General intelligence” category, the criteria were as follows:

(a)	Alert and responsive to questions.

(b)	Person selling self.

(c)	Awareness of facts/info.

(d)	Grasping/understanding ideas and info.

(e)	Person asking relevant high-quality questions.

(f)	Self-motivated.

(37)	Under the heading “Disposition”, the criteria were as follows:

(a)	Experience [of] working [in] a small team.

(b)	Experience of working alone.

(c)	Mature disposition.

(d)	Would “fit in” and be acceptable to workmates.

(e)	Good attitude to health and safety.

(f)	Capable of coping under pressure.

(38)	Under the heading “Circumstances”, the criteria were as follows:

(a)	Conducive to work.

(b)	Able to work overtime.

(c)	Willing to be “on call” and at short notice.

(d)	Able to get to Port at short notice 24 hours per day.

(e)	Feasible distance/time to work.

(39)	According to the pre-determined marking scheme, which was contained on each candidate assessment sheet, the “Scoring Key” was as follows:

5 =   	Excellent

4 =	Very Good

3 =	Average

2 =	Poor

1 = 	Very Poor

(40)	Therefore, according to the marking scheme, each candidate should have been awarded, in respect of each criterion, a mark of between 1 and 5.

(41)	According to the pre-determined marking arrangements, all of the marks awarded under “Attainments” were to be multiplied by 4.  (Accordingly, each individual “Attainments” criterion was intended to have four times the weighting of each non-Attainments criterion).

(42)	The claimant’s claims of age discrimination and victimisation discrimination were based on the proposition that he had been unfairly undergraded and that candidates, 8, 16 and 38 had been overgraded.

(43)	The claimant accepted that the issues in respect of undergrading and overgrading could not be determined by reference to the information now available to this tribunal.  He accepted that, instead, those issues had to be determined by reference only to all the information which was accessible to the shortlisting committee at the time of shortlisting.  (In this context, information is treated as being “accessible” if the shortlisting committee actually had access to it, or would have had access to it if it had done its job properly).

(44)	Against that background, we invited the claimant to identify the relevant alleged undergradings in his own case, and the relevant alleged overgradings in the cases of Candidates 8, 16 and 38.  We reminded him that what we were asking him to identify was undergradings and overgradings by reference to the accessible information only (as distinct from identifying undergradings and overgradings by reference to the intrinsic merits of the relevant candidates, or by reference to all of the information now available to this tribunal).  We note that, in their Submission, the respondent referred to this process of complaint-identification as a process of re-marking.  It seems to us that “re-marking” is not a correct description of this process.  It seems to us that “complaint-identification” is a better description of the process.  

(45)	At the time of the shortlisting interviews:

(a)	Candidate 8 had been retired from the PSNI for one year, having completed 26 years service as a full-time policeman.

(b)	Candidate 16 was still a member of the PSNI’s full-time reserve, having completed 25 years service at that point.  (Candidate 16 had been in the full-time RUC Reserve before transferring to the PSNI reserve).

(c)	Candidate 38 had been retired for four years.  Prior to retirement, he had completed 28 years of service as a full-time policeman in the RUC.  

(d)	The claimant was currently a part-time PSNI constable, having transferred to that service from his previous status as a part-time member of the RUC Reserve.  By the time of the selection interviews, the claimant had completed 14 years service as a part-time policeman.  During two of those years of service, he had been working full-time hours (although still classified as a part-timer).

(46)	During the course of his shortlisting interview, the claimant made it clear that, during his lengthy period of service as a part-timer in the RUC Reserve, his policing responsibilities were relatively menial and were secondary to the policing roles of full-time RUC constables.  However, he did say that during the two years during which he was deployed on a full-time basis, he had dealt with “basically everything you would expect a policeman to deal with …”.  He also indicated that he had only very limited experience of investigations of crime.

(47)	In the following sub-paragraphs, we consider the relevant alleged undergradings of the claimant, (the alleged undergradings having been identified by him, at our invitation).

(48)	The claimant was graded, both by Mr Synnott and by Ms French, at 3 in relation to the “Qualified in current Police Regulations” criterion.  The claimant considers that he ought to have been graded at 4 (“very good”).  We are satisfied that the grading at 3 was reasonably appropriate.  It is true that the claimant’s formal training in policing was relatively recent at the time of the interviews.  (He had received induction training, as a part-time constable of the PSNI, relatively recently.  However, the training was relatively basic.  At shortlisting stage, he was part of a field of candidates which included some well-qualified policemen.

(49)	In relation to “Recent/relevant Police experience”, the claimant was awarded an “average” grade of 3 by Mr Synnott, while he was awarded a “very good” grade of 4 by Ms French.  The claimant asserted that he ought to have been awarded a grade of 4 by Mr Synnott.  In our view, in reality, the claimant’s experience was no better than average when compared with the field of candidates against which he was competing.  Furthermore, in his answers to questions, the claimant emphasised this secondary nature of the policing role which he currently carried out, and of the policing role which he had carried out prior to the two years of full-time hours.  (See sub-paragraph (46) above).

(50)	In relation to the “Any promotion within the Police Service?” criterion, Mr Synnott awarded a “very poor” grade of 1, while Ms French awarded a “poor” grade of 2.  The claimant says he should have been awarded a 2.  Having taken note of the information which was accessible to the shortlisting committee, we consider that a grade of either 1 or 2 is not unreasonable.

(51)	Under the criterion “Any specialised training?”, the claimant was awarded a grade of 0 by Mr Synnott and a “poor” grade of 2 by Ms French.  The claimant says he should have been awarded an “average” grade of 3.  In our view, in this context, specialised training has to be construed as training in relation to specialist (as distinct from generalist) policing work.  The claimant had no training in specialist policing.  Accordingly, in our view, a reasonably appropriate mark on the basis of the claimant’s demonstrated merits, would have been 2 or 1.  Mr Synnott ought not to have awarded the claimant a grade of 0, because such a grade is not allowed for in the marking scheme.

(52)	In respect of the “Experience of working in the community” criterion, Mr Synnott gave the claimant an “average” 3 and Ms French gave the claimant an “excellent” 5.  Understandably, against that background, the claimant asserts that he should have been given a 5.  However, we consider that an average grade is reasonably appropriate, having regard to what the claimant told the shortlisting panel, when he was asked about his roles in the police.  His competitors, at shortlisting stage, included people who had considerable and very lengthy experience of carrying out community policing.  The claimant was a part-time constable with 14 years part-time service, most of that service as a part-time Reserve Constable, during two of which (he told the shortlisting panel) he dealt with the same issues as any full-time constable.  He was awarded 3 marks, the same score as Candidate 33.  The latter candidate had 18 years full-time service as a  policeman, during which he served in a variety of roles, including normal beat and patrol duties, and a role as a Crime Prevention Officer.  

(53)	Under the heading “Driving Experience”, Mr Synnott awarded the claimant an “excellent” grade of 5, whereas Ms French awarded him an “average” mark of 3.  The claimant says he should have been awarded a “very good” 4.  In our view, Mr Synnott’s grade, in respect of this criterion, is a little on the over-generous side.  Many of the claimant’s competitors, at shortlisting stage, were people who had driven extensively during lengthy policing careers.  Accordingly, we consider that Ms French’s score of 3 is broadly appropriate, having regard to the information provided by the claimant and the information provided by other candidates.  We note that Ms French awarded Candidate 16 a score of only 3, even though he was a fully-licensed HGV driver.

(54)	Mr Synnott and Ms French decided to award a standard 1 point to all claimants in respect of the “First-Aid Certificate” criterion.  In doing so, they departed from the pre-determined marking scheme.  However, in respect of this particular criterion, the marking scheme (which allowed for various gradations from excellent to very poor) was obviously inappropriate, because this was a “yes or no” situation: A candidate either had the Certificate or he hadn’t.  Furthermore, such a Certificate was obtainable by any person who did a three-day course.  Accordingly, there was no good commercial reason for substantially differentiating between candidates who did have the Certificate and those who didn’t. 

(55)	Under the heading “Port-related work experience”, Mr Synnott awarded the claimant 0 points, while Ms French awarded him a “poor” grade of 2 points.  The claimant says that he should have been awarded 3 points (which would be an “average” grading).  The claimant is at least correct in his contention that he ought to have been awarded more than 0 marks.  However, we note that nine other candidates also scored 0 marks, including Candidate 38, who was a shortlisted candidate.  As Mr Synnott points out in his witness statement in these proceedings, the claimant did not, during the recorded shortlisting interview, provide any extensive information about “Port-related work experience”.  (However, of course, the interview questions were not well-suited to the drawing out of any such information).

(56)	In respect of the “Computer experience” criterion, Mr Synnott awarded the claimant the “very good” grade of 4.  Ms French awarded the claimant the “very poor” grade of 1.  The claimant thought that he ought to have been awarded at least 3 (an average score) by Ms French.  He is correct in that contention.  (The shortlisting panel were aware that the claimant had experience gained from home-computing, from police computers and from those of previous employers).

(57)	Mr Synnott awarded the claimant the “very good” grade of 4 in respect of all of the “General Intelligence” group of criteria.  Ms French awarded him the “average” grade of 3 in respect of all of those criteria.  The claimant did not argue that Ms French should have awarded him a grade of 4 in respect of all of that group.  He did however argue that she should have awarded 4 for “Alert and responsive to questions”, “Awareness of facts/info”, “Grasping/understanding ideas/info” and “Self-motivated”.

(58)	In our view, this tribunal cannot sensibly second-guess the necessarily subjective impressions of a shortlisting panel member, in respect of this group of criteria, on the borderline question of whether or not a particular criterion should be graded at 3 or at 4.  We lack the expertise of the selection panel.  We lack the knowledge of the context which the members of the selection panel will have had.  We have not seen the claimant at interview.  We have not seen or heard the interviews of the claimant’s shortlisting competitors.

(59)	The same comments can be made in respect of the claimant’s criticisms in relation to the grading of the following criteria: Under “Experience working in a small team”, Mr Synnott gave the claimant the “very good” grade of 4, whereas Ms French gave the claimant the “average” grade of 3.  (The claimant told us that the grade should have been 4).

(60)	In relation to “Experience of working alone”, the claimant argued that he ought to have been awarded a “very good” grade of at least 4.  Mr Synnott only awarded him an “average” mark of 3, whereas Ms French awarded him only 2.  As already noted above 2 points is equivalent to a “poor” grading.  We consider that there was no proper basis for the award of only 2 points, based on the information which was accessible to the selection panel.  We note that Ms French awarded the same grading (2 points) to Candidate 38.  In relation to Mr Synnott’s award of 3 points, we repeat the comment made at sub-paragraph (58) above.

(61)	The claimant also complained about Ms French’s grading of the “Circumstances” criteria.  (See sub-paragraph (38) above).  In respect of each of that group of criteria, Mr Synnott awarded the claimant an “excellent” grading of 5, whereas Ms Synnott awarded the claimant a “poor” grading of 2.  The claimant himself argued, during the hearing of these proceedings, for a “very good” grading of 4 for all of this group of criteria with the exception of “Feasible distance to work”.  (He argued for an excellent grading in respect of the latter criterion).

(62)	We are satisfied that Ms French was wrong to award only 2 points to the claimant in respect of each of the “Circumstances” group of criteria.  However, she awarded the same level of points, in respect of this group of criteria, to all of the shortlisted candidates.

(63)	We can now turn to the alleged overgradings identified (and complained of) by the claimant, in respect of Candidate 8.  

(64)	In relation to that candidate, the claimant complained of overgrading in respect of “Trained and qualified in current Police Regulations and Procedures” criterion, in respect of the Recent/Relevant Police experience criterion, and in respect of any promotions within the Police Service criterion.

(65)	We consider that, in the present context, the term “excellent” includes possessing outstanding quality or superior merit, being remarkably good, being extraordinary and/or being superior.

(66)	Candidate 8 was awarded an “excellent” grade of 5 in respect of “Trained and qualified in current Police Regulations and Procedures”.  We think that was an entirely reasonable grade, given the candidate’s background.  He had served 26 years as a full-time policeman in Northern Ireland, formerly in the RUC, latterly in PSNI, and had retired about a year prior to shortlisting interviews.

(67)	The claimant argued that Candidate 8 should not have been awarded an “excellent” grade, of 5 points, in respect of Recent/relevant Police experience.  We do not accept that proposition.  The candidate had 26 years experience as a full-time policeman and had only recently retired.

(68)	In relation to the “Any promotions within the Police Service?” criterion, Mr Synnott had awarded Candidate 8 the “average” points level of 3, whereas Ms French had awarded him the “very good” grade of 4.  The claimant argued that, on the accessible information, a figure of 3 points would have been  more appropriate.  Because of considerations which we have already referred to at sub-paragraph (58) above, we consider that it would be wrong for us to attempt to second-guess the interview panel in relation to the question of whether 4 or 3 points was appropriate.

(69)	We can now turn to the alleged overgradings, identified and complained of, by the claimant, in respect of Candidate 16.

(70)	In respect of the “Trained and qualified in current Police Regulations and Procedures” criterion, Ms French awarded an average grade of 3 points and Mr Synnott awarded an excellent grade of 5 points.  According to the claimant, the award should have been the “very good” grade of 4.  We note that Candidate 16 was a full-time reservist, and had been a full-time police reservist, in Northern Ireland, for 25 years (as at the date of interview).  We note that, in general, reservists carry out a narrower range of policing activities than are typically carried out by mainstream police constables.  However, we were not present at the interview of Candidate 16.  We lack the expertise and particular knowledge of the shortlisting panel.  Against that background, we do not consider that we can say that the excellent grading was not reasonably appropriate.

(71)	In relation to Candidate 16, the claimant also objects to Mr Synnott’s excellent grading of that candidate, at 5, in respect of Recent/relevant Police experience.  (According to the claimant, the gradings should have been the “very good” grading of 4).  For reasons similar to those which we have given in the last sub-paragraph above, we are not prepared to second-guess Mr Synnott on the question of whether a 5, or a 4, was appropriate.

(72)	In respect of the “Promotions” criterion, Mr Synnott awarded this candidate a “poor grading” of 2, whereas Ms French awarded the “very good” grading of 4.  The claimant argued that, on the evidence available to the shortlisting panel at the time, Mr Synnott’s grading was correct, and Ms French’s grading was clearly incorrect.  We agree with that contention.

(73)	We now turn to the alleged overgradings, identified and complained of, by the claimant, in respect of Candidate 38.

(74)	In respect of the “Trained and qualified” criterion, Mr Synnott awarded this candidate an “excellent” grading of 5, whereas Ms French awarded the candidate an “average” grading of 3.  The claimant says that a grading of 3 was appropriate.  However, this is a candidate who had retired in the recent past (he was four years retired), and he had 28 years pre-retirement experience in the RUC.  We were not at Candidate 38’s shortlisting interview.  Against that background, we are not prepared to say that the grading of 5 was not reasonably appropriate.

(75)	This candidate was awarded 4 points by Mr Synnott, and 3 points by Ms French, in respect of “Awareness of Transport Security Requirements”.  The claimant says he should have been awarded only an average grade of 3.  For reasons which are similar to those which we have already mentioned, in the context of other criteria, or in the context of other candidates, above, we are not prepared to second-guess on the question of whether a 4, as distinct from a 3, was reasonably appropriate.

(76)	In respect of the “Police experience” criterion, Mr Synnott awarded 3, Ms French awarded 4, and the claimant argued that no more than 3 points was appropriate.  We were not at the interview.  This is somebody who had 28 years experience as a police constable.  He had only retired for four years (so his policing experience was not greatly out of date).  Against that background, we consider that there is no adequate evidence that, on the accessible information, a grading of 4 would not be reasonably appropriate.

(77)	In respect of the “Any promotions within the Police Service?” criterion, Ms French awarded this candidate 5, whereas Mr Synnott awarded this candidate 4.  The claimant argues that any award in excess of 3 is inappropriate.  This candidate often carried out the role of Acting Sergeant.  Therefore, we are willing to accept that a “very good” grading of 4 is reasonably appropriate.  In our view, Ms French’s “excellent” 5 grading is not reasonably appropriate, because Candidate 38 was never substantively promoted to sergeant.

(78)	In relation to the “Experience working [in] a small team” criterion, Mr Synnott awarded this candidate an “excellent” mark of 5, Ms French awarded a “very good” grade of 4, and the claimant argued that anything more than 4 is an overgrading.  For reasons similar to those which we have discussed above (in the context of other candidates or other gradings), we do not consider that we have evidence which would entitle us to conclude that a grade of 5, as distinct from a grade of 4, was an unfair overgrading. 

(79)	There has been controversy between the claimant and the respondent on the question of whether or not Mr Synnott told the claimant, during the course of the claimant’s shortlisting interview that he (Mr Synnott) welcomed the introduction of the age discrimination legislation.  There is a stark conflict of evidence between the claimant on the one hand, and Mr Synnott and Ms French on the other hand, in relation to that matter.  However, we do not find it necessary, for the purpose of deciding this case, to arrive at a definitive conclusion on that factual dispute.  If we were to conclude that the claimant’s version of events was correct, and that the shortlisting committee members’ version was incorrect, in relation to this particular matter, that would no doubt affect the credibility of Mr Synnott and Ms French as witnesses.  However, as already indicated above, we already have reservations about the reliability of some aspects of Mr Synnott’s testimony, and about some aspects of Ms French’s testimony.

(80)	In arriving at our ultimate conclusions in this case, we have taken account of all of the statements of fact which are set out in this Decision, regardless of whether they are set out in this paragraph or in any other paragraph of the Decision.

(81)	In the interests of readability, and with a view to avoiding repetition, we have set out some additional findings of fact elsewhere in this Decision.

The legal principles

33.	The following are legal principles which we consider to be relevant in the context of this case:

(1)	The Regulations were enacted for the purpose of complying with requirements imposed on the United Kingdom by the EU Framework Employment Directive of 2000.  Accordingly, the provisions of the Regulations have to be construed in light of the requirements of the Directive.

(2)	The effect of the Directive is to require the application of the “principle of equal treatment” in the context of recruitment.  According to Article 2 of the Directive, that principle means that there shall be no direct or indirect discrimination whatsoever on the ground of age.

(3)	Article 2 contains a specific definition of direct discrimination, in the following terms:

		“… direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1 …”

(4)	It is clear law that,  in a recruitment context, there is unlawful discrimination, for which the employer is responsible, if the result produced by prejudice on the part of one member of a multi-member appointment selection panel is that the panel as a whole treats a claimant unfairly; a decision as to whether an appointments committee unlawfully discriminated is not reached by counting heads but by considering the action taken and how it was achieved.

(5)	The definition of age discrimination has already been set out above (at paragraph 5).  The definition of victimisation discrimination has also already been set out above (at paragraph 6).  The concept of age discrimination and the concept of victimisation discrimination both involve two elements.  First, there must be less favourable treatment.  Secondly, that less favourable treatment must be accorded on the relevant prohibited ground (in this case, age, or “by reason that” that the claimant carried out a protected act).

(6)	Less favourable treatment is an important concept both in the context of age discrimination and of victimisation discrimination.  In order to determine whether or not there has been less favourable treatment, it is necessary to compare the treatment of a claimant with the treatment which has been, or would have been, accorded to others.  In the context of age discrimination, Regulation 3(2) makes explicit provision, in the following terms:

                 “(2)	A comparison of B’s case with that of another person under paragraph (1)  must be such that the relevant circumstances in the one case are the same, or not materially different, in the other”.

(7)	When a tribunal is considering a complaint of unlawful employment discrimination, which allegedly occurred in the course of a recruitment process, it is very important that the tribunal should not usurp the function of the interviewers, by substituting the tribunal’s own assessments for those of the interviewers.  A selection process inevitably involves a comparison between candidates, and matters of impression and judgement, on which views may honestly and legitimately differ.  

(8)	That a relevant prohibited ground (in this case either age or “victimisation”) was an important factor in an employer’s decision is sufficient to found a case of discrimination, if there has been less favourable treatment.  (In other words, it is not necessary that the prohibited ground factor is the sole or main reason for the relevant decision).

(9)	Article 10 of the Directive requires Member States to:

		“… take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment …”.

(10)	In implementation of the requirements of Article 10,  Regulation 42 of the Regulations makes provision as follows:

	“(2)	Where on the hearing of [a complaint to an industrial tribunal], the complainant proves facts from which the tribunal could, apart from this regulation, conclude in the absence of an adequate explanation that the respondent – 

(a)	has committed against the complainant an [unlawful act of discrimination]; or

(b)	is … to be treated as having committed against the complainant such an act, 

the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having committed, that act”.

(11)	In the context of this Decision, we have assumed that Regulation 42 applies to victimisation discrimination (as well as applying to age discrimination). 

(12)	Provisions corresponding to the provisions of Regulation 42 apply in respect of all of the principal employment discrimination statutes which operate in Great Britain, and in respect of all of the other principal employment discrimination enactments which have effect in Northern Ireland.

(13)	One effect of Regulation 42 (and of the corresponding legislative provisions in other enactments) is that, if a “prima facie” case of unlawful discrimination is established, a tribunal is under an obligation (as distinct from merely having the power) to find in favour of the claimant, unless the employer proves that the relevant treatment was not accorded on a relevant prohibited ground.

(14)	In Igen Ltd v Wong [2005] IRLR 258, the English Court of Appeal was concerned with the provisions of Section 63A of the Sex Discrimination Act 1975 (which corresponds to the provisions of Regulation 42).  At the end of Igen, that Court set out what is known as “the revised Barton guidance”. That guidance envisaged a two-stage process for addressing the burden of proof.  The guidance was as follows:

“(1)	Pursuant to s.63A of the SDA, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of s. 41 or s. 42 of the SDA is to be treated as having been committed against the claimant.  These are referred to below as ‘such facts’.

(2)	If the claimant does not prove such facts he or she will fail.

(3)	It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination.  Few employers would be prepared to admit such discrimination, even to themselves.  In some cases the discrimination will not be an intention but merely based on the assumption that ‘he or she would not have fitted in’.

(4)	In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.

(5)	It is important to note the word ‘could’ in s. 63A(2).  At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination.  At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

(6)	In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts. 

(7)	These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s.74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within s.74(2) of the SDA.

(8)	Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to s.56A(10) of the SDA.  This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

(9)	Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.

(10)	It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.

(11)	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, since ‘no discrimination whatsoever’ is compatible with the Burden of Proof Directive.

(12)	That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.

(13)	Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof.  In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.”

(15)	At paragraph (1) of the guidance, the phrase ‘ … the tribunal could conclude …’ means ‘a reasonable tribunal could properly conclude’.  (See Madarassy  v  Normura International plc [2007] IRLR 246, at paragraph 57 of the judgment.)

(16)	Therefore, at the first stage of Igen process, there must be evidence from which a tribunal would be entitled to decide that the claimant has received less favourable treatment on a relevant prohibited ground.  

(17)	In the context of employment discrimination law, there is said to be prima facie evidence, in relation to a particular issue, if a party’s evidence in connection with that issue is sufficiently weighty to entitle a reasonable tribunal to decide the issue in his favour.

(18)	Regulation 46 of the Regulations provide for the service of a statutory questionnaire.  The effect of Regulation 46(2) is that, if it appears to a tribunal that the respondent to tribunal proceedings has deliberately omitted to reply to such a questionnaire in a timely fashion, or that its reply is evasive or equivocal, the tribunal may draw any inference from that fact that it considers it just and equitable to draw, including an inference that the relevant employer committed an unlawful act.

(19)	As already noted above (at paragraph 8 above) the following is among the protected acts listed at Regulation 4(1) of the Regulations:

             “(d)	alleged that A or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of these Regulations …”.  [Our emphasis].

(20)	According to Mr Wolfe, Regulation 4(1)(d) does not apply in respect of allegations which were made prior to the coming into operation of the Regulations.

(21)	We are not sure that Mr Wolfe’s argument is correct in this connection.

(22)	The fair employment legislation’s equivalent of Regulation 4(1)(d) (which is to be found at Article 3(5)(iii) of the 1998 Order Employment and Treatment (Northern Ireland) Order 1998) is couched in significantly different terms, and we wonder whether those differences may indeed have practical implications.

(23)	Article 3(5)(iii) of the Fair Employment (Northern Ireland) Order 1998 is in the following terms:

		“(a)	B has – 

			…

			(iii)	alleged that A or any other person has (whether or not the 					allegation so states) contravenes this Order …”

		It will be noted that, in Regulation 4(1)(b) the phrase is “… (whether or not the allegation so states would amount to a contravention of these Regulations. …”.  [Our emphasis], whereas the phrase in Article 3(5) of the 1998 Order is “… (whether or not the allegation so states) contravenes this Order …”.  [Our emphasis].

(24)	For the purpose of determining this case, we have found it unnecessary to arrive at definitive conclusions on the question of whether or not the definition of victimisation on the Regulations is a definition which covers claimants against retaliatory conduct which is prompted by “pre-commencement” activities (activities were carried out prior to the coming into operation of the relevant provisions of the Regulations).  

Conclusions

34.	Our conclusions are as follows:

(1)	In relation to both the age discrimination claim and the victimisation discrimination claim, the issue is the same.  The issue is whether the claimant has met the requirements of the first stage of the Igen process.  (See paragraph 33 above).  We remind ourselves that those requirements will have been met by the claimant if, but only if, he has been able to establish a prima facie case that the relevant treatment was “less favourable” treatment which was accorded on the relevant prohibited ground.  We also have reminded ourselves that, in considering what inferences can be drawn from primary facts (at this stage), we must assume that there is no adequate explanation for those facts.

(2)	We have decided, in relation to age discrimination and in relation to victimisation discrimination, that the claimant has not met the requirements of the first stage of the Igen process, because of the reasons and considerations set out below.

(3)	In considering this issue, we have assumed that there is “no adequate explanation”, but have otherwise taken account of all the evidence.  In particular, we have taken account of all the factors set out in the following paragraphs.

(4)	First, we have taken the following factors into account:

(a)	As noted above (at paragraph 32 above), we have considerable reservations about the credibility of aspects of the evidence of Mr Synnott, and we also have similar reservations about the credibility of aspects of the evidence of Ms French.  

(b)	The recruitment process had significant shortcomings, both in respect of objectivity and in respect of transparency, especially as detailed below.

(5)	Secondly, the following factors have also been taken into account:

(a)	Having carefully considered the claimant’s contentions in relation to the relevant (alleged) overgradings and undergradings, we have decided that most of those gradings were reasonably appropriate.

(b)	In relation to the few unfair undergradings, we note that, in more than one instance, the relevant practice of undergrading was consistently applied, in respect of several candidates, not just in relation to the claimant.

(c)	If Mr Synnott and/or Ms French had been intent upon disadvantaging the claimant, one would have had expected them to have unfairly marked the claimant in relation to a considerable number of the relevant criteria.  

(6)	Having considered all of the factors outlined in the last two sub-paragraphs above, and having considered the overall state of the evidence available to us, we have concluded that it is inherently improbable that there was any relevant less favourable treatment of the claimant which was accorded to him on a prohibited ground (on the grounds of the claimant’s age, or “by reason” that the claimant had complained of age bias in 2003).

(7)	Against that background, we have concluded, on the basis of all the evidence made available to us, that no reasonable tribunal could properly conclude that any relevant less favourable treatment was accorded to the claimant on either of the relevant prohibited grounds.

General comments

35.	The claimant took this case because, although the respondent had asserted that it had abandoned its age eligibility policies, the claimant was suspicious that the respondent was in reality continuing to apply them.  Against the background of his previous encounters with the respondent, and in light of the lack of transparency about the way in which the respondent, had, allegedly, modified its age eligibility policies, he had reasonable grounds for those suspicions.  (See paragraph 32 above).  

36.	Furthermore, the relevant recruitment process was marred by a considerable number of serious shortcomings, which have implications for any assertion, on the part of the respondent, that it is an equal opportunities employer.  We detail only some of those below:

(1)	The real criteria (see paragraph 32 above) were very different from the criteria which were mentioned in the job specification.  

(2)	The “Would Fit in” (with workmates) criterion is one which is likely, in many situations, to facilitate conscious or unconscious unlawful discrimination.

(3)	One of the criteria makes a virtue out of not having a disability.  To set such a criterion, as a comparative criterion, seems to run counter to the spirit of disability discrimination law, and it arguably also runs counter to specific requirements of that area of law.

(4)	Candidates were not told of the true criteria against which they were being assessed.  

(5)	The shortlisting interview questions were not well suited to the aim of clearly establishing which candidates best met the shortlisting criteria.  

(6)	There were wide variances between the marks awarded, by Mr Synnott on the one hand and by Ms French on the other hand, in respect of particular criteria, in respect of particular candidates.  That would be acceptable if there had been discussion between them, before each of them finalised their marks.  However, we are told, there were no relevant discussions.

(7)	The process was inadequately documented.  (For example, the decision to shortlist only three candidates was not documented at the time).

Chairman:

Date and place of hearing:	20-24 October 2008; 30 October 2008; and 9 December 2008; at Belfast	

Date decision recorded in register and issued to parties: