THE INDUSTRIAL TRIBUNALS

CASE REF:	1200/10

CLAIMANT:			Diarmuid Riordan

RESPONDENT:		Department for Regional Development

DECISION
The unanimous decision of the tribunal is that the claimant’s claim is not well-founded.  Accordingly, that claim is dismissed.

Constitution of Tribunal:
Chairman:		Mr Paul Buggy
Members:		Mr Alan Barron
			Mrs Margaret Gregg

Appearances:
The claimant was self-represented.

The respondent was represented by Mr M Wolfe, Barrister-at-Law, instructed by the Departmental Solicitor’s Office.

REASONS

1.	At the end of the hearing, we delivered our decision orally.  At the same time, we gave oral reasons for our decision.  Accordingly, what follows is by way of summary only.

2.	The respondent had a vacancy for a “Strangford Ferry Senior Purser”.  The claimant applied for that post.  He was ruled to be ineligible for that post.  By letter dated 19 March 2010, he was informed on behalf of the respondent that the selection panel had determined that he had not shown that he met the following eligibility criteria:

“At least two GCSEs at Grade C or above which must include English Language and Mathematics”.

3.	He wrote to them in reply on 27 March 2010, pointing out that he held Senior Certificate plus A levels.  In that letter, he contended that he had other higher qualifications and had previously worked in the Ministry of Finance.

4.	In his application form, the claimant had referred to the fact that he had attained the Senior Certificate.  In that form, he had not explicitly mentioned the fact that he had obtained passes in English and Maths as part of that Senior Certificate.  In these proceedings, the respondent accepted that, if the claimant had indeed obtained passes in English and Maths, as part of his Senior Certificate, then he had attained acceptable equivalent qualifications to Grade Cs, at GCSE levels, in those two subjects.

5. 	The claimant’s claims in these proceedings were refined and modified in the course of this hearing.  Originally, he was making a complaint of direct discrimination.  However, during the course of the hearing, he withdrew that direct discrimination claim.  (On the basis of the evidence which we have seen and heard, we consider that he was correct to withdraw that aspect of his claim).  

6.	So the claimant was left with a claim of indirect discrimination.  

7.	Age discrimination, in the context of employment, is addressed in the Employment Equality (Age) Regulations (Northern Ireland) 2006 (“the Regulations”).  Regulation 7 of the Regulations makes it unlawful for an employer, in relation to employment by him at an establishment in Northern Ireland, to discriminate against a person, either in the arrangements it makes for the purpose of determining to whom it should offer 
employment, or by refusing to offer (or deliberately not offering) employment to that person.  In the context of Regulation 7, “discrimination” includes indirect discrimination.

8.	Indirect discrimination is defined in Regulation 3(1) of the Regulations, in the following terms.  The effect of Regulation 3(1) is that a person (“A”) indirectly discriminates against another person (“B”) if:

“… A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but –

(i)	which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and;

(ii) 	which puts B at that disadvantage …

unless A can show that the provision, criterion or practice is a proportionate means of achieving a legitimate aim.”

9.	According to the claimant, when he did the Senior Certificate, in the 1960s, you couldn’t get awarded the Senior Certificate unless you had passed examinations in English and Maths.  Accordingly, the claimant argued, once the selection panel knew that he had obtained the Senior Certificate, they should have realised and accepted that he did indeed have the equivalent of passes, at GCSE level, in both English and Maths.

10.	There was some controversy between the parties on the question of whether or not, according to the internal rules of the relevant recruitment process, the claimant was indeed required (in his application form) to be specific about the subjects which he had passed in the Senior Certificate.  We are satisfied that those rules did require him to so specify.

11.	There was also controversy between the parties in relation to the claimant’s contention that he had, by implication, specified that he had passed the Senior Certificate in English and Maths.  That contention was not proven to our satisfaction.  On the basis of documentation which we were shown during the course of the hearing, we were satisfied that, at least in some years, it was possible to be awarded a Senior Certificate without having actually passed in both English and Maths.

12.	As already noted above, the recruitment authority told the claimant that his application had been unsuccessful because of his failure to show that he had passed GCSE English and Maths or had equivalent qualifications.  In subsequent correspondence with the recruitment authority, the claimant made it clear that he did indeed have English and Maths passes at Senior Certificate level.  The panel declined to take account of those assertions.

13.	Was the panel constrained, by the recruitment authority’s policy, to decline to take account of those assertions?   Having considered the terms of that written policy, we are satisfied that panel was not so constrained.  The policy should have been interpreted in a purposive manner.  If it had been so interpreted, it would have been read as merely preventing the provision, by a candidate, after the closing date, of entirely new information, and it would not have been read as preventing (at that point) the clarification or amplification of information which had already been contained in the completed application form.

14.	If we are wrong on the “purposive interpretation” issue, and if the policy did indeed preclude the receipt of the information which the claimant, in this case, belatedly sought to provide, then, in our view, the policy is inappropriately rigid and inflexible and it is likely to produce avoidable unfairnesses.

15.	In relation to the conclusions set out in the last two paragraphs above, Mr Wolfe has drawn our attention to the following matters.   He points out that the observations set out in those paragraphs are not essential building-blocks in arriving at the ultimate conclusions of this tribunal in this case.  As he points out, that is why the Department has not sought to provide witnesses to explicitly address the issues which are referred to in those paragraphs; and for the same reason, the issues addressed in those paragraphs have been not fully argued at the main hearing of this case.  We accept the validity of all of those points.  Nevertheless, we hope that those who conduct recruitment processes in future will pay some regard to the observations which we have made at paragraphs 13 and 14 above.

16.	
According to the claimant, the position was as follows:

(1) 	The recruitment authority were stipulating a requirement (the requirement to specify the subjects that one had passed in the Senior Certificate); 

(2)	that requirement puts people of the claimant’s age at a particular disadvantage when compared with people who were young enough to have done GCSEs; 

(3)	it put the claimant at that disadvantage; and

(4)	the respondent cannot show that the stipulation was a proportionate means of achieving a legitimate aim.

17.	The claimant’s claim of indirect discrimination has to be dismissed, against the following background and for the following reasons. 

18.	We are satisfied that the relevant application form instructions have to be construed as requiring subject-specificity both in respect of equivalent qualifications (such as the Senior Certificate) and in respect of GCSEs.

19.	In our view, in imposing that specificity requirement, the respondent did not apply a provision, criterion or practice which the respondent applied, or would apply, equally to persons younger than the claimant, but which puts persons of the same age group as the claimant at a particular disadvantage.  We note that the respondent required people who have done GCSEs to be specific about the subjects that they had passed.   So those GCSE candidates were treated in substantially the same manner as the over 40s (who were, undoubtedly, required to be specific about the question of whether or not they had passed the Senior Certificate in English and Maths).

20.	If we are wrong in the conclusions which we have set out in the last preceding paragraph, we still conclude that the relevant stipulation does not cause any particular disadvantage to older people, because we do not consider that the relevant stipulation is a significant burden: It is easy to say that you have passed an exam in English and Maths.

21.	The claimant also fails to prove comparative disadvantage because there is no evidence that people who are in their 40s or over have a greater tendency (as compared with the under-40s), to specify things by implication, rather than specifying them explicitly.

22.	We think that the claimant did make a mistake, by failing, in his application form, to mention specifically that he had passed the Senior Certificate in English and Maths, 

but we think that was an understandable mistake in the circumstances.  It was a mistake which could easily have been rectified if the Department had taken a more flexible approach (on the question of receipt of additional information after the closing date).

Chairman:

Date and place of hearing:	17-19 January 2011, Belfast.	

Date decision recorded in register and issued to parties: