THE INDUSTRIAL TRIBUNALS

CASE REFS:	383/13
761/13
970/13

CLAIMANT:			Olive Gordon

RESPONDENT:		Libraries NI HQ

DECISION 
The unanimous decision of the tribunal is that the claimant’s claims are dismissed.

Constitution of Tribunal:
Chairman:		Mrs Ó Murray
Members:		Mrs K Elliott
			Mr R Hanna

Appearances:
The claimant represented herself.

The respondent was represented by Ms A Finegan, Barrister-at-Law, instructed by the Education & Library Boards Solicitors.

The Claims

1.	The claimant claimed age discrimination in the form of direct discrimination and victimisation.  The protected act was the tribunal claim lodged by the claimant in 2010.  The claimant also alleged that she suffered discrimination because she had appealed the decision not to permit her to work beyond the age of 65 years.

2.	The respondent denied discrimination and victimisation.

The Issues

3.	The issues for the tribunal related to the claimant’s key allegations of age discrimination and victimisation as follows:

	(1)	That she was not appointed to the permanent post in December 2012 despite being as good as the successful candidates;

	(2)	That there was a reluctance to accept her name from the agency after that recruitment process;

	(3)	That she was not included in Equality Training on 4 February 2013;

(4)	That she was not permitted to apply for a post in Rathcoole Library in February 2013;

(5)	That she was not permitted to apply for a post in Shankill Library in early March 2013.

Sources of Evidence

4.	The tribunal had the oral evidence of the claimant on her own behalf, and of the following witnesses for the respondent: Mr Creighton, Deputy HR Manager; Ms Gavin, Temporary Operations Manager; Ms Gamble, Area Manager; Mr Lynn, Area Manager.  The tribunal had regard to the claim and response forms and to the documentation to which it was referred by the parties.

The Law

5. 	The Employment Equality (Age) Regulations (NI) 2006 prohibit discrimination on grounds of age unless it is justified and they also prohibit victimisation on grounds of having done a protected act.

6.	The initial burden is on the claimant to prove facts from which the tribunal could conclude that an act of discrimination has occurred.  If the claimant succeeds in proving such facts the burden shifts to the respondent to prove that any detrimental acts were in no sense whatsoever connected to the claimant’s age or the protected act or acts.

Findings of Fact and  Conclusions

7.	The tribunal considered all the evidence both oral and documentary, found the following relevant facts proved on a balance of probabilities and reached the following conclusions.

8.	At the time relevant to these proceedings the claimant was aged 68 years and she worked as an agency Library Assistant on placement at various libraries in one of the respondent’s divisions.  

9.	The claimant had previously been employed by the respondent until she retired after she had attained the age of 65.  The claimant’s retirement date was 31 March 2010.  Following her retirement the claimant became an agency worker and was told that there was a restriction on engaging her through an agency due to a policy operated by the respondent.  The claimant challenged the operation of this policy by way of tribunal proceedings and that claim settled in October 2010 with the respondent agreeing to accept her on placement from an agency prior to that date.  

10.	From March 2010 until December 2012 the claimant was one of the most frequently engaged of the agency workers in the division operated by Mr Lynn.  This was the geographical division which most suited the claimant and she had approximately 140 weeks of placement during that period.

11.	Following changes to the organisation of libraries across Northern Ireland and following an audit in relation to the use of agency workers, major changes were under way in relation to the way the respondent operated.  In particular, a competition took place in December 2012 to recruit permanent staff to replace some of the temporary and agency staff.  

December 2012 Competition

12.	In December 2012 the recruitment competition was for permanent Library Assistants.  The claimant was in a group of 40 applicants before the relevant panel and she was interviewed on 12 December 2012.  The claimant was advised on 17 December 2012 that she had been unsuccessful in the competition.  It is the claimant’s case that she was unsuccessful firstly, because she was aged over 65 and that this was an act of age discrimination, and, secondly, because she had previously brought a tribunal claim and had challenged her retirement date.

13.	We do not accept the claimant’s case on this point for the primary reasons set out below.

14.	We do not accept the claimant’s argument that an analysis of the summary of the performance of each candidate demonstrates that she was as good as others who were successful.  It is clear from the summary document that there were positive and negative comments in relation to each candidate’s performance and we find as a fact that the summary document does not support the claimant’s allegations in that regard.  

15.	We found the evidence of Ms Gavin (a member of the recruitment panel) particularly compelling.  She was an Operations Manager from a different division and had no prior knowledge of the claimant, her age, her history (vis-a-vis retirement) nor did she know that the claimant had had a previous claim in the tribunal.  We accept Ms Gavin’s evidence that the claimant at interview did not perform as well as the successful candidates.  

16.	The claimant referred the tribunal to the detailed documentation relating to one candidate, namely candidate 37(a successful candidate), to assert that her answers to particular questions were on a par with the answers given by that candidate.

17.	The claimant was particularly concerned in relation to her low score at Box 1 of the three boxes on the mark frame.  The question which informed the marking at Box 1 was question 3.  

18.	It was clear from Ms Gavin’s evidence, which we accept, that candidate 37 gave detailed, concrete examples to answer question 3 and that this contrasted with the claimant’s lack of detail and lack of concrete examples.  We therefore accept that the claimant’s score legitimately reflected her performance at interview.

19.	Statistics were produced to us which showed the age spread of the applicants and of the successful and unsuccessful candidates.  We were also provided with statistics showing the age breakdown of the employees of the respondent in general.  

20.	The statistics show that there was a spread of ages in the group that applied for the post and in the successful and unsuccessful groups.  There is nothing in the statistics which leads us to conclude that there was a preponderance of younger employees who were successful.  The claimant was the only applicant over 65.  There was one applicant who was over 61 and he, or she, was successful at interview.  In summary the statistics do not support the claimant’s contention that the process, as it was applied to her, was tainted by age discrimination nor do the statistics support the claimant’s broad allegation (first raised in submissions) that there was a drive to get rid of older workers in favour of younger workers.

21.	The claimant criticised the marking made by Mr Creighton.  He was on the panel as a member of HR and it was the claimant’s case that he must have known about her previous claim to the tribunal and also that he knew that she had applied to extend her retirement age indefinitely and was unsuccessful.  

22.	The claimant initially claimed that Mr Creighton dealt with her previous appeal against the refusal to allow her to stay on indefinitely beyond retirement age.  At hearing the claimant conceded that that was incorrect and that Mr Creighton was only present at initial meetings to consider her application and he was not a decision-maker in that process. Mr Creighton denied any further knowledge of the claimant following his involvement at that early stage.  In particular Mr Creighton alleged that he had had no knowledge of her tribunal claim until it was alluded to by the claimant in a letter to another member of HR in January 2013, that is, following the recruitment process in December 2012.

23.	We are not convinced that Mr Creighton was as ignorant of the claimant’s previous situation as he alleged in hearing before us given that he was Deputy Head of HR in a HR department of only 7 people.  However we do not find that he deliberately marked her down in the December 2012 competition because of any such previous knowledge.  Our reason for so finding relates principally to our acceptance of Ms Gavin’s compelling evidence of the cogent reasons for her low scores which were untainted by unlawful discrimination.  We also accept that the structure of the mark frame was such that it was likely that the three members of the panel would arrive at the same marks for each question in the short interview period of 15 minutes given to each candidate.  In these circumstances, we find nothing suspicious in the fact that the majority of candidates had the same marks awarded to them by each member of the panel. 

Equality training

24.	We accept the evidence of Ms Gamble in relation to the issue of Equality Awareness training on 4 February 2013.  The height of the claimant’s case on this point was that she expected to be included in that training and she later discovered that the reason she was not included was that Ms Gamble said that she was due to leave imminently.  We accept that Ms Gamble said to the claimant that if she returned on placement she could be included at a later session.   We accept that the refusal to offer the Equality Awareness training was because of the imminent arrival of one of the permanent postholders appointed in the December 2012 competition.  It was nothing to do with age nor was it connected to her having made a previous claim.  

Offer of agency placements

25.	The general  audit of agency staff revealed discrepancies between the hours worked and the hours agency workers were needed at different branches.  One result of the audit was that procedures were tightened up to ensure that the hours required by the library matched precisely the hours actually worked by agency workers.  This involved a change in the system at the relevant time and we do not accept the claimant’s apparent contention that it was open to Ms Gamble, in particular, to slot her in to another agency placement without going through the tightened procedures via the agency.  We find that the changes in procedure were brought about because of the audit and were not targeted at ensuring that the claimant was excluded from placements which might otherwise be available to her.  We therefore reject the claimant’s allegation that she was unlawfully discriminated against or victimised in the offering of placements to her.

26.	The evidence of Mr Lynn gave a clear picture of the claimant as a good worker.  Mr Lynn clearly rated the claimant very highly in terms of her work and attitude and was always glad to see her name on the list of agency workers available to him.  The claimant did not impugn the integrity or evidence of Mr Lynn and we accept his evidence that there was no policy of refusing to accept the claimant from the agency list.

27.	In particular, we reject the claimant’s contention that the fact that she was not offered a placement in Rathcoole in February 2013 was an act of unlawful discrimination.  That post was filled on 14 February 2013 before the termination of the claimant’s placement in Shankill which occurred on 23 February 2013.  The offer by the agency of the claimant’s services for the Rathcoole placement was conditional on her assignment finishing in Shankill and Mr Lynn therefore reasonably believed that she was not available at the relevant time.

28.	The claimant became the subject of a Debt Relief Order in June/July 2013 following advice received in April from a Citizens Advice Bureau in relation to her financial difficulties.  The claimant gave evidence that she was advised by the CAB that she would be restricted to earning no more than £150 per month for the year following the Order.  The claimant agreed that this was a reason for her refusing some placements in 2013.  It was still however part of the claimant’s case that she was not offered many placements in 2013 and she attributed this to the alleged ongoing age discrimination and victimisation.  

29.	We accept the respondent’s case that several placements were offered to her via the agency but that she refused the majority of them.  We find that the reason for this refusal was because of the £150 restriction per month relating to the Debt Relief Order.  We therefore reject the claimant’s case that there was a reluctance to have her on placement due to her age and we reject her claim that this amounted to discrimination, and in particular, victimisation.

30.	The claimant was advised on 22 February 2013 that her placement at Shankill was to be terminated with immediate effect.  The claimant nevertheless went to work the next day and was offered a further period of placement until the new permanent member of staff started work.  The actual termination date was therefore 23 February 2013. The claimant refused, of her own volition, to work beyond 23 February because she said she felt that she might put the manager in a difficult position as she was not sure if he had HR authority to keep her on.  We do not accept that the notification of termination of her placement was detrimental nor was it connected to her age.  We find as a fact that it was connected to the arrival of the new employee who did in fact start work shortly after that period.  In the event the claimant was offered an extension to the placement which she refused.

Permanent post in Shankill

31.	A permanent post in Shankill was to be trawled in early March 2013 but when the claimant asked for an application pack she was told that she was not eligible to apply.  It is clear from the documentation to which we were referred that, due to organisational changes, this post was only open to a restricted pool of applicants.  As the claimant was not in placement at the relevant date she was ineligible to apply.  We do not accept that excluding the claimant from the competition was an act of age discrimination by way of victimisation or otherwise.  

32.	At a late stage in the case during the claimant’s cross-examination of one of the respondent’s witnesses, she raised for the first time her belief that her placement had been deliberately terminated in February 2013 to ensure that she would not be eligible to apply for the Shankill post.  We reject that claim on the following grounds:

	(1)	The claimant was offered work at Shankill beyond 23 February and she decided herself to refuse it for no good reason;

	(2)	There was no evidence produced to us indicating a determination to get rid of the claimant: on the contrary the picture which was apparent to us was that the claimant was a valued agency worker who was the most frequently used in Mr Lynn’s division from 2010 and he was clearly keen to have her work in his division if possible. 

Time Point 

33.	The respondent raised a time issue in relation to the victimisation claim.  We do not need to consider the time point given that we have rejected the claimant’s claim on the substantive issues.

Summary 

34.	It is our assessment generally that the claimant clearly felt aggrieved that she was not allowed to work on for a longer period after she retired in 2010.  Her challenge to the subsequent policy of the respondent about taking her on as an agency worker was successful and the claimant produced no evidence indicating any determination to minimise the placements given to her or to subject her to any detriment because she had challenged the respondent on its policy in relation to engaging retired persons.  On the contrary, her services were used extensively through the agency.

35.	The claimant was clearly a valued worker who was used frequently in Mr Lynn’s division.  It was a natural consequence of the recruitment of a number of permanent staff that the scope for agency workers to be employed would reduce but nevertheless the claimant was offered a number of placements which she refused  due of her own personal circumstances.

36.	In summary therefore the claimant has failed to prove facts from which we could conclude that an act of age discrimination in the form of direct discrimination or victimisation occurred.  Her claims therefore fail in their entirety and are dismissed.  

Chairman:

Date and place of hearing:  16-18 December 2013, Belfast.		

Date decision recorded in register and issued to parties: