Peifer v St Gabriel's College Belfast Education and Library ... [2013] NIIT 1507

THE INDUSTRIAL TRIBUNALS

CASE REF: 1507/05

CLAIMANT: James Robert Peifer

RESPONDENTS: 1. St Gabriel’s College

2. Belfast Education and Library Board

DECISION

The tribunal unanimously dismisses the claimant’s claim for sex discrimination.

Constitution of Tribunal:

Chairman: Mr B Greene

Members: Ms G Ferguson

Mr A Ebrahim

Appearances:

The claimant appeared in person.

The respondents were represented by Mr Aidan Sands, of counsel, instructed by the Education and Library Board Solicitors.

Sources of Evidence

1. The tribunal heard evidence from the claimant and on behalf of the respondents from John Patterson, Edward Ferguson and Philip McTaggart. The tribunal also received seven bundles of documents amounting to some 561 pages.

The Claim and Defence

2. The claimant claimed direct sex discrimination and indirect sex discrimination. The respondents denied the claimant’s claims in their entirety.

The Issues

3. At a Case Management Discussion on 4 October 2012 the Vice-President directed, after hearing from both parties, that there was not a claim for indirect discrimination on the grounds of sex in this particular claim and directed that the matter proceed to hearing on the basis of a claim for direct sex discrimination.

4. The tribunal also adopted the draft statement of legal and factual issues prepared by the respondents.

Legal Issues

(1) For the purposes of the Sex Discrimination (Northern Ireland) Order 1976, on the grounds of the claimant’s sex, did the respondents treat the claimant less favourably than they treated or would have treated a woman?

(2) For the purposes of the Sex Discrimination (Northern Ireland) Order 1976, did the respondents directly discriminate against the claimant by refusing or deliberately omitting to offer the claimant employment?

(3) If the respondents did directly discriminate against the claimant, what relief is the claimant entitled to pursuant to Article 63 of the Sex Discrimination (Northern Ireland) Order 1976?

Factual Issues

(4) Did the respondents, in the course of the interview process for the position of classroom assistant, subject the claimant to direct sex discrimination?

5. On the first day of hearing, 14 March 2013, the claimant renewed his application to include a claim for indirect discrimination on the ground of sex. After hearing arguments from both sides, and considering their respective arguments, the tribunal concluded that the claimant’s claim did not include a claim for indirect discrimination. Full reasons were given by the tribunal at the time.

In summary, the tribunal concluded that there was not a claim for indirect discrimination in this case as the indirect discrimination alleged by the claimant, related to the advertisement and the criteria used by the second respondent to recruit for classroom assistants. In the instant claim, the claimant was deemed to satisfy those criteria and therefore did not suffer a detriment and therefore there could not be a claim for indirect discrimination arising from his criticisms of the advertisement and the criteria for recruitment. Secondly, the claimant was unable to identify any provision, criteria or practice which discriminated against him in relation to the final interview and his non-appointment as a classroom assistant. The claimant contended that the first respondent should have awarded him higher marks and its failure to do so had caused him a detriment. The ground of its actions was his gender, he argued. The tribunal regarded that as a claim for direct discrimination.

6. The claimant then applied to have the claim referred to the European Court of Justice which the tribunal refused as there was not any justification for doing so.

7. He then applied that the claim be adjourned as he had a number of claims throughout 2013 and was also appealing a number of claims that already had been decided. Having considered his application and the respondents’ objections, the tribunal refused to adjourn the instant claim.

8. In the course of the hearing and with the agreement of the parties, the tribunal directed that this claim would deal with liability only and not remedy. Accordingly, legal issue 3 will not be determined at this hearing.

Findings of Fact

9. (1) The claimant holds a degree in accounting and a degree in mathematics. He also holds a PGCE from 1974 and this was recognised by the Department of Education for Northern Ireland as of 20 April 2004.

(2) On 24 May 2005 the second named respondent advertised for the post of classroom assistant at the first respondent’s premises on the Crumlin Road, Belfast. The job advertisement required that applicants must have one year’s experience working in post primary education.

(3) The first respondent considered 11 applications from seven females and four males, including an application from the claimant.

(4) Of the eleven applicants seven, including the claimant, were considered to have met the short-listing criteria. Of the seven applicants four were male and three were female.

(5) Applicants, including the claimant, were interviewed on 1 July 2005. One of the short-listed candidates indicated he could not attend and another candidate did not attend on the day.

(6) The interview panel interviewed two males and three females, including the claimant.

(7) A female candidate secured the highest mark and was selected with the claimant being the second candidate and first reserve. The panel also selected a second reserve, also male.

(8) The interview was carried out by three members, drawn from the Board of Governors, who were Mr A Patterson, Chairman, Mr E Ferguson and Mr P McTaggart. Mr S Barnes principal of the first respondent’s school was also in attendance in an administrative/secretarial capacity. He was not part of the appointment panel nor did he participate in the decision making process to appoint the successful candidate.

(9) The allocation of marks was based under three headings; qualifications, experience and presentation; and responses to three questions posed to each of the candidates.

(10) The questions were:

(1) What do you consider to be the important qualities of a person working as a classroom assistant?

(2) What do you feel are the benefits to young people being involved in non-classroom, extra curricular activities?

(3) How does a classroom assistant effectively contribute to the education of young people?

(11) Each interviewer marked each candidate under the three headings and the three questions and the marks were then totalled at the end of the interview process. The marks of the three examiners were then totalled and on that basis the successful candidate secured 169 marks and the claimant secured 168 marks.

(12) Each interviewer marked each candidate individually.

(13) In relation to the marks for qualifications the panel discussed how they would mark under this heading and decided that anyone who had a qualification that was appropriate would be given eight marks. One candidate, an unsuccessful candidate originally from Mexico, secured 10 marks for qualification. However the panel explained that by reason of a post-graduate qualification that this candidate had in dealing with special education needs, which the panel considered to be relevant.

(14) There was not any further discussion among the interviewers about how any of the other marks would be awarded, before or at the end of each candidate’s presentation or before final marks were decided by each interviewer.

(15) The scoring of the interviewers for the successful candidate was Mr Patterson 51 marks, Mr Ferguson 54 marks and Mr McTaggart 64 marks.

(16) The scoring for the claimant was Mr Patterson 48 marks, Mr Ferguson 54 marks and Mr McTaggart 66 marks.

(17) In awarding marks for experience and presentation Mr Patterson changed the marks he had given to the claimant, by reducing them. He was unable to recall or read what the original marks were. He indicated to the tribunal that he had made those changes at the time on the basis of what he had heard from the candidate. He stated that it was not on foot of any discussion with the other interviewers nor anyone else and at the time that he made those changes he initialled them.

(18) The overall position was that the claimant achieved one mark less than the successful candidate and he was the first reserve.

(19) It appears that the successful candidate accepted the post because the claimant was not invited to take the post at any stage thereafter.

(20) The claimant alleges that his non-appointment was by reason of sex discrimination.

(21) The tribunal was of the view that the interviewers, in giving their evidence, came across as honest and truthful and were doing their best to recall something that had occurred almost eight years ago.

(22) There was no evidence before the tribunal that anyone else had tried to influence the interviewers in their scorings.

(23) The claimant believes that he should have secured more marks for his qualifications. The claimant further believes that as another female candidate secured 10 marks for a post-graduate qualification that the claimant should have secured additional marks for his post-graduate qualification by reason of his PGCE. Had he done so he could have been the successful candidate.

(24) The second respondent issued a circular, JNC Circular No 34 – 8 June 2004, for guidance in relation to classroom assistants setting out, what it described as, qualified status and recognised status. The interviewing panel was unaware of this circular.

(25) The National Qualifications Framework, Regulatory Authorities Awarding Bodies issued a framework for qualifications in which they award the same grading to masters degrees and postgraduate certificates and diplomas. However the interviewing panel was unaware of this framework or that it gave the same grading to masters degrees and postgraduate certificates in awarding its marks for qualifications.

The Law

10. (1) It is unlawful to discriminate against a woman on the grounds of her sex. (Article 8 Sex Discrimination (Northern Ireland) Order 1976).

(2) A person discriminates against a woman if, on the ground of her sex, he treats her less favourably than he treats or would treat a man (Article 3(1) Sex Discrimination (Northern Ireland) Order 1976).

(3) 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 III or which by virtue of Article 42 or 43 of the Sex Discrimination (Northern Ireland) Order 1976 is to be treated as having committed such an act of discrimination against the claimant (Article 63 Sex Discrimination (Northern Ireland) Order 1976).

(4) The Northern Ireland Court of Appeal in McDonagh and Others v Samuel John Hamilton Thom t/a The Royal Hotel, Dungannon [2007] NICA 3 stated that, when considering claims of discrimination, tribunals must have regard to the burden of proof. The correct approach to the burden of proof in all discrimination claims is that set out in the Annex to the decision of the English Court of Appeal in Igen v Wong [2005] 3 ALL ER 812. In the McDonagh case the Northern Ireland Court of Appeal recommends that tribunals adhere closely to the guidance in Igen.

(5) The guidance set out in the Annex to the Igen case is:-

“(1) Pursuant to S63A 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 Section 41 or Section 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 of 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 S63A(2). At this stage the tribunal does not have to reach a definitive 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 S74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or other questions that fall within S74(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 S56A(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 grounds 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 inferences can be drawn, but further that it has adequately discharged 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 the burden of proof. In particular, the tribunal will need to examine carefully explanations for failing to deal with the question or procedure and/or code of practice”.

(6) In the McDonagh case, Kerr LCJ stated that the first question to be addressed is has the claimant proved on the balance of probabilities facts from which the tribunal could include, in the absence of an inadequate explanation, that the respondent has committed the act of discrimination. The Lord Chief Justice went on to say:-

“In addressing this question, it would be necessary for the Judge to bear a number of ancillary matters in mind. First, that it is unusual to find direct evidence of discrimination. Secondly, that the conclusion on the preliminary issue will usually be a matter of inference to be drawn from the primary facts. Thirdly, it must be clearly understood that the plaintiffs do not have to discharge a final burden, merely whether on the facts as found, it is possible to draw the inference of discrimination and finally it be must assumed at this stage that no adequate explanation for the discrimination exists.”

(7) The application of the burden of proof was also considered in Madarassy v Nomura International PLC [2007] EWCA CIV 33. In that case Mummery LJ, who gave the decision of the English Court of Appeal, stated at paragraph 52:-

“She [Madarassy] only has to prove facts from which the tribunal “could” conclude that there had been unlawful discrimination by Nomura, in other words she had to set up a “prima facie” case”.

At paragraph 54 the learned Lord Justice went on to say:-

“I am unable to agree with Mr Allen’s [counsel for the appellant] contention that the burden of proof shifts to Nomura simply on Ms Madarassy establishing facts of a difference in status and a difference in treatment of her”.

At paragraph 56 he stated:-

“The Court in Igen v Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”

(8) The Court of Appeal in Kevin Curley v The Chief Constable of the Police Service of Northern Ireland and Superintendent Middlemiss [2009] NICA 8 Coghlin LJ commented on shifting the burden of proof in discrimination claims and stated as follows:-

“However this Court would wish to emphasise the need for a tribunal engaged in determining this type of case to keep firmly in mind the fact that the claim is founded upon an allegation of religious discrimination. The need to retain such a focus is particularly important when considering the potential application of the provisions of Article 38 of the 1998 Order.”

(9) The Northern Ireland Court of Appeal in Nelson v Newry and Mourne District Council [2009] NICA 24 cited with approval the comments of Elias J in Laing v Manchester City Council [2006] IRLR 748 when he stated:-

“74 The focus of the tribunal analysis must at all times be the question whether or not they can properly and fairly infer race discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination that is the end of the matter. It is not improper for a tribunal to say in effect “there is a nice question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race.”

(10) In the Curley case Coghlin LJ referred to the comments of Carswell LCJ at page 273 in RUC Chief Constable v A [2000] NI 261 where he said:-

“[3] Discrepancies in evidence, weaknesses in procedures, poor record keeping, failure to follow established administrated processes or unsatisfactory explanations from an employer may all constitute material from which an inference of religious discrimination may legitimately be drawn. But tribunal should be on their guard against a tendency to assume that every such matter points towards a conclusion of religious discrimination especially where other evidence shows that such a conclusion is improbable on the facts.”

Application of the Law and the Findings of Facts to the Issues

11. (1) The claimant has established difference in status in that the successful candidate is female and the claimant is male.

(2) The claimant also has established difference in treatment in that the successful candidate was appointed to the post of classroom assistant whereas the claimant was not.

(3) The claimant alleges that the reason for this difference in treatment was because he was a male and the successful candidate was female.

(4) In support of that allegation he relies on the marking by the interviewers of the qualification criterion and asserts that he should have secured a higher mark than the successful candidate thereby resulting in his appointment instead of her.

(5) The tribunal is not persuaded that the ground for the difference in treatment in the marks awarded related to the claimant’s gender. In so concluding the tribunal had regard to the following matters:-

(a) The members of the interview panel decided among themselves, prior to awarding any marks, that they would mark qualifications on the basis of general qualifications and would give eight marks to anyone who had secured a degree. The claimant did not challenge this approach nor suggest that this approach was unlawfully discriminatory.

(b) The interviewers awarded eight marks to all candidates who had a degree except one candidate, a lady referred to before the tribunal as the Mexican lady, by reason of her country of origin. In relation to this lady the panel members awarded her 10 marks. The reason they advanced for so doing was that she had a post-graduate qualification relating to special education needs which they believed to be particularly relevant. The panel members believed that this justified an additional two marks which they gave to her. However this lady was unsuccessful in being appointed as a classroom assistant or becoming a reserve candidate and therefore the awarding to her of 10 marks had no effect on the non-appointment of the claimant and is therefore not suggestive of discrimination.

(c) The claimant asserts that under the guidance used by the second respondent that a PGCE was also a post-graduate qualification and therefore he should have secured additional marks. However the interview panel members were unaware of that or of the National Qualifications Framework Regulatory Authorities Awarding Bodies which puts post-graduate certificates and masters degrees at the same level when they were scoring all the candidates or when they decided to gave additional marks to the Mexican lady.

(d) It is noteworthy that one of the interviewers marked Mr Peifer as the first candidate. Only one marked the successful candidate as the first candidate and the other interviewer had them both on the same score. The claimant only failed to be appointed when the aggregate score was measured. This is not suggestive of a panel that was trying to discriminate on the ground of gender.

(e) In all the circumstances it seemed to the tribunal improbable on the facts that the reason for the claimant’s non-appointment was his gender or the gender of the successful candidate.

(6) Accordingly as the tribunal is not persuaded that the ground for the difference in treatment received by the claimant relates to his gender or the gender of the successful candidate the burden of proof does not pass to the respondents.

(7) The claimant has not established the essential ingredients to prove a sex discrimination claim and his claim must therefore fail.

(8) As the claimant has not succeeded on liability in showing that he suffered sex discrimination it is unnecessary to have a remedy hearing and according his claim is dismissed in its entirety.

Chairman:

Date and place of hearing: 14, 15 and 19 March and 17 April 2013, Belfast.

Date decision recorded in register and issued to parties:

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Peifer v St Gabriel's College Belfast Education and Library ... [2013] NIIT 1507_05IT (16 July 2013) URL: http://www.bailii.org/nie/cases/NIIT/2013/1507_05IT.html Cite as: [2013] NIIT 1507_5IT, [2013] NIIT 1507_05IT

Industrial Tribunals Northern Ireland Decisions