Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1511/05IT

 

 

 

CLAIMANT: James Robert Peifer

 

 

RESPONDENT: Sullivan Upper School

 

 

 

DECISION

The unanimous decision of the tribunal is that is that the respondent did not indirectly discriminate against the claimant on the ground of sex. His claim is therefore dismissed in its entirety.

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Browne

 

Members: Mrs M O'Kane

Mr I Foster

 

 

Appearances:

 

The claimant appeared and represented himself.

 

The respondent was represented by Mr J Dunlop, Barrister-at-Law, instructed by Jones, Cassidy, Brett, Solicitors.

 

 

ISSUES AND EVIDENCE

 

1.             This case was re-heard as a result of the decision of the Court of Appeal to refer it back to a differently constituted tribunal for determination. The Court of Appeal concluded that the criterion of appropriate experience applied by the respondent in shortlisting candidates for the position of Classroom Assistant in question was indirectly discriminatory unless it could be justified.

 

2.             At the outset of the hearing, the claimant renewed an application, made and refused at the last Case Management Discussion held on 3 May 2018, that this re-hearing should be stayed, pending submission by him of an application to the Supreme Court. At that hearing it was directed that the case should proceed on the dates set, unless in the meantime the Supreme Court accepted the claimant's application and set a date for hearing. The claimant's application was on both occasions opposed by the respondent.

 

3.             Upon hearing the arguments by both parties, the tribunal concluded that the re-hearing should proceed. The claimant by the date of hearing had not even submitted his application to the Supreme Court for its consideration as to whether or not it should be accepted. Such delay incidentally also meant that his application, when eventually submitted, would be well out of time. There therefore seemed to the tribunal to be no merit in the claimant's application, and it was refused.

 

4.             The two issues for the tribunal to determine were: (i) whether or not the respondent was able to justify its application of the criterion of appropriate experience when shortlisting the candidates for the position of Classroom Assistant for a pupil with a statement of special educational needs; and, if the respondent was unable to justify the application of that criterion, the claimant would succeed in his complaint of indirect discrimination on the ground of sex and the second issue then would be: (ii) the remedy to which the claimant is entitled.

 

5.             At the outset of the hearing, the respondent made clear that it accepted the finding by the Court of Appeal that the criterion of appropriate experience was indirectly discriminatory, in that the overwhelming majority of candidates with experience as a Classroom Assistant would be female.

 

6.             The issue for the tribunal therefore was whether or not the respondent could justify its use of that criterion by satisfying the tribunal that the criterion had a legitimate aim or purpose, and that it was proportionate.

 

7.             The claimant during the tribunal case made seven written applications, while the hearing was under way. The first of these was a renewed application to have the Department of Education joined as a party to the proceedings. Not only was this application made while the case was running, with no prior warning that it would be made, but it has been adjudicated upon before. The tribunal considers that the claimant failed to make out any cogent argument as to why the previous decisions refusing the application were wrong or should be set aside.

 

8.             Five of the other applications related to the claimant's assertions as to direct discrimination. The tribunal considers that the case it was required to deal with is one of indirect discrimination, and therefore those new applications were not relevant.

 

9.             The other application related to questions asked at the interviews. Since this case arises from the respondent's decision not to interview the claimant, the procedure adopted at the interviews is irrelevant.

 

10.          In June 2005 it became necessary for the respondent to recruit a Classroom Assistant with experience of working with children with special educational needs, to work with a new male pupil with Asperger's syndrome, who had a statement of special educational needs, and was making the transition from primary school into Year 8 in September 2005.

 

11.          The redacted statement of special needs for this pupil was placed before the tribunal, and made specific reference to the support identified as being needed by him. He was clearly a highly intelligent child, with no difficulty academically. The objectives of providing him with a Classroom Assistant were stated to be: Improving his ability to behave appropriately socially and extending his insight in to social rules and regulations; and continuing to improve his ability to organise himself to complete assignments accurately and independently in school.

 

12.          The Statement of Educational Needs for this pupil set out the stated aims for a Classroom Assistant, to ensure that: he would organise his books and equipment and go from one class to another without getting lost; monitor his ability to react appropriately with other pupils and allow opportunities to develop social interaction skills; reduce the effect of his behaviour on the rest of the class by, for instance, removing him from a situation where he became upset or disruptive; and to help him develop his ability to cope in unstructured situations, such as lunchtime in the playground.

 

13.          There also was a specific need identified for the Classroom Assistant regularly to liaise between home and school, to facilitate consolidation and augmentation of the pupil's education plan at home.

 

14.          The more specific duties in furtherance of the post were included in the job description supplied to each applicant. These duties included, for example: supervising the pupil outside class times in the morning and during mid-morning and lunchtime breaks and in movement between classes; ensuring that he would be met in the morning and returned to his school to home transport in the afternoon at the end of the school day; assisting in the classroom as directed by the teachers concerned; ensuring that all books and other school equipment needed were available as and when required; helping the pupil with his own general personal management, for example, in changing for PE and games, for swimming, etc.; contributing to assessments of the pupil's progress and development and undertaking other such duties which may be assigned by the SENCO. The position was for a temporary one year full (term) time classroom assistant (special needs).

15.          It was decided that the recruitment panel would comprise the then Principal, Mr Stevenson; the Bursar, Dr Byrnes; and Mrs Purcell, the SENCO, who was line manager for the Classroom Assistants.

 

16.          Dr Byrnes was the only witness for the respondent at the re-hearing; she is the only person from that panel still working for the respondent. She has human resources responsibilities, and is the line manager for non-teaching staff in the school. She reports to the Principal and acts as secretary to the Board of Governors.

 

17.          The job description, shortlisting criteria and interview questions were drawn up and agreed by Mr Stevenson and Dr Byrnes before the post was advertised in the Belfast Telegraph on 7 June 2005. Whilst the advertisement included reference to a special needs child, there was no mention of the specific condition affecting him, namely Asperger's syndrome.

 

18.          The form required candidates to provide personal information and complete details of their academic and vocational qualifications, present or last employment and employment history. Eight applications, from six females and two males including the claimant, were submitted to the school by the closing date of Friday 17 June 2005.

19.          The claimant has a degree in Accounting and Mathematics, and has a Post Graduate Certificate in Education approved by the Department of Education. The claimant in his application form provided the following information: he had been employed as a supply teacher in the United States of America, and in Northern Ireland as a temporary supply teacher in the Western Education and Library Board area. He had tutored pupils for 11 plus, SAT, GCSE and A level Maths; coached two seasons of American school league sports; taught special needs groups, including Down's syndrome classes; and he tutored two statemented pupils in numeracy and literacy.

 

20.          The claimant also gave evidence that he decided to apply for classroom assistant posts because he thought the experience would help him "to get my foot in the door and get references", to enable him to get a teaching post.

 

21.          The shortlisting exercise was carried out after the closing date by Dr Byrnes and Mrs Purcell. They read the documentation and then met to carry out the short listing together, to ensure consistency in marking. They scored each candidate against the shortlisting criteria contained on a grid on the basis of the information contained on the application forms.

22.          The information before the panel in the shortlisting process consisted of the application form of each candidate; their monitoring form; the job description; and a copy of the 2002 version of the JNC Circular 34 relating to recognised qualifications for classroom assistants, which listed courses offering "qualified status" to classroom assistants in all schools. It also contained details of the current course title, previous course title and awarding body for each body for each qualification. The panel ought to have used the up-to-date version of this circular, issued in 2004, but there was no difference of any substance from the earlier version used by the selection panel.

23.          The shortlisting criteria adopted were: General Educational Qualifications; Relevant Vocational Qualifications; Appropriate Experience; and, of particular relevance to this case, Other Relevant Experience.

 

24.          These were weighted according to what was considered by the panel to be the most important aspects of the job. Candidates' applications were not scored as to whether or not they met a minimum requirement, instead being awarded marks from one to four against each criterion. (4 = "exceeds requirements", 3 = "meets requirements", 2 = "below requirements but could be developed" and 1 = "unacceptable".) The maximum possible score was 32.

25.          Dr Byrnes told the tribunal in her evidence that the respondent was at the material time alert to the fact that the overwhelming majority of candidates with experience as a classroom assistant would be female. On her evidence, Dr Byrnes stated that the respondent was not only aware of the disparity between the numbers of male and female classroom Assistants, but in education generally. The respondent therefore wished to encourage men to apply for this and other education posts, as their numerical absence from the education system caused a void in role models for pupils.

26.          Dr Byrnes stated in her evidence that, in order to address and attempt to resolve that inherent imbalance between prospective male and female candidates, the respondent specifically devised clear scope within the application form for this post to provide information as to what each candidate identified as Other Relevant Experience.

27.          Dr Byrnes stated that the respondent's intention was to "widen the field", to encourage prospective male candidates to apply, who otherwise were highly unlikely to, because they lacked the narrower criteria of qualification as, or experience of working as, a Classroom Assistant.

 

28.          She stated that the Other Relevant Experience criterion was there to provide applicants with the opportunity to include information from which the selection panel then could award marks for relevant work outside that overwhelmingly female sphere. Dr Byrnes gave examples of a sports coach, a scout leader or youth leader, etc, as potentially providing evidence of the type of experience, from which the selection panel could identify as potentially directly translating in to the types of task required to meet the needs of a special needs pupil.

29.          The claimant, neither in cross-examination nor in his submissions, challenged, directly or by implication, that such was the respondent's intention in its selection and use of that additional criterion. The question for the respondent therefore was whether or not the inclusion of such criterion, and the means of its application, could be justified. The tribunal therefore had regard not only to the criteria applied by the panel under Other Relevant Experience, but also to the way in which they were applied.

30.          Dr Byrnes and Mrs Purcell scored each of the candidates under each heading and ranked the candidates in order from the highest to lowest scores. The highest ranking candidate (female) scored 24 points, the second (female), third (male) and fourth (female) candidates each scored 23 points. The claimant was in fifth position with 19 points. The sixth and seventh ranking (female) candidates each scored 16 points and the eighth lowest scoring (female) candidate had 15 points. Dr Byrnes then met with Mr Stevenson, who reviewed the scores awarded and satisfied himself of their accuracy. He decided that the first four candidates, three females and one male (not the claimant), should be invited to interview.

 

31.          Candidate C2 withdrew from the process before the interviews took place on 27 June 2005. After the interviews were conducted, C1 was offered the post, having been awarded the highest score. In accordance with the respondent's policy as to confirmation of qualification, she was required to provide a letter dated 22 August 2005 from North Down and Ards Institute of Further Education, which confirmed her imminent qualification. Such confirmation was accepted by the respondent as evidence that she had been accredited.

 

32.          Dr Byrnes wrote to the claimant on 20 June 2005, to inform him that his application had been unsuccessful. The claimant replied on 27 July 2005, seeking reasons as to why he had not been shortlisted. Dr Byrnes spoke to the claimant by telephone on 27 September 2005; she explained to him the shortlisting process and how the candidates were scored against each of the four categories on the basis of the information contained in their application form. She advised that the main difference between him and the short listed candidates was that they had demonstrated special educational needs experience and classroom assistant experience, which were important.

 

33.          In section five of the application form, headed Relevant Additional Information, the claimant was awarded the maximum score of 4 (x 1 weighting = 4), for his Bachelor of Science degrees in Accounting and in Mathematics.

 

34.          Applying the criterion of Relevant Vocational Qualifications, the claimant was awarded a score of 3 marks, with a total score of 6 after weighting (x 2). The claimant contended that he should have been awarded 4 points for his PGCE. Under this heading, the maximum 4 points could be awarded for a "Degree/Higher Diploma/Diploma in a relevant subject"; 3 points for a "Certificate/GNVQ/NVQ in relevant subject"; and 2 points for "other relevant vocational qualifications". The female candidates ranked 1, 4 and 6 were awarded the same score as the clamant.

 

35.          The claimant disputed his mark, primarily because, as it repeatedly appeared to the tribunal throughout the hearing, he was of the unshakeable view that his possession of a teaching qualification and related teaching experience deserved to trump the other candidates' qualifications and experience. The claimant expressed the view that Classroom Assistant posts were a form of "social planning", designed for women who otherwise would not have jobs, the idea being basically to "stick them in to the classrooms to read to kids".

 

36.          He maintained this stance regardless of any close correlation between the other candidates' qualifications and direct or other relevant experience and the stated requirements of a Classroom Assistant post.

 

37.          The claimant's belief also manifested itself in his repeated line in evidence and in cross-examination that this was, in effect, a post primarily suited to someone with a teaching qualification. The claimant, from his repeated assertions, also appeared to the tribunal to believe that a designation of Educational Needs requiring the support of a Classroom Assistant was inextricably related to a pupil's lack of ability or underperformance. This was in stark contrast to the specific information as to the pupil in this case, and was readily ascertainable even without specific information from the fact that this particular pupil had earned a place at a grammar school.

 

38.          There was nothing in the advertisement or in the other information provided which could have caused a candidate filling in the application form to presume that this pupil required any form of tutoring, when considering the type of information to provide in the application form under 'Relevant Additional Information'.

 

39.          The respondent throughout therefore contended that the post from the outset was demonstrably not a teaching post, and that the relevant insight and skills needed to demonstrate the ability to perform the role successfully, both inside and outside the classroom, were very different from those required of a candidate applying for a teaching post.

40.          The shortlisting panel scored the candidates by reference to the JNC Circular 34, which lists those vocational courses giving rise to qualified status as a Classroom Assistant. It was asserted by the respondent, and not challenged by the claimant, that the JNC is a national body, which set its criteria with Trade Union agreement, related to salary scales.

 

41.          The shortlisting panel consequently treated an NVQ Level III and PGCE as being equal because an NVQ grade 3 and teaching PGCE both are recognised under JNC as a qualified status for Classroom Assistants, and both are certificates. Candidate 1 ("C1", et seq.) was scored 3 by the panel, on the basis that the qualification would be completed, subject to production of proof of same. In common with the approach adopted in the recruitment of teaching staff, candidates who have completed their courses but not yet received their final results may be appointed, on the clear understanding that their relevant written confirmation will be produced before they can take up their new post.

 

42.          In the present case, C1, who was appointed, provided written confirmation from her college that the NVQ III had been completed, and that the certificate "will be issued", which was accepted by the shortlisting panel as sufficient evidence that she had been accredited. The claimant, C4 and C6 were all regarded as having a certificate under the scoring scheme and awarded 3 marks. JNC Circular 34 re-designated a CQSW (the male C3's qualification) as a Diploma in Social Work, resulting in him receiving a score of 4.

 

43.          Under Appropriate Experience, the claimant was awarded a score of 1, with a total score of 3 after weighting (x 3), as was the other male candidate (C3). The claimant contended that he should have been awarded the maximum score of 4.

 

44.          "Appropriate experience" was defined as "experience as a classroom assistant in schools", for which 4 points were awarded for "three or more years post primary", 3 points for "one to two years post primary or primary", 2 points for "less than one year post primary or primary" and 1 point for no experience as a classroom assistant. The claimant's contention was that the shortlisting panel should have awarded him the maximum of 4 points under this heading, as he had 3 or more years working as a teacher in a post primary setting.

 

45.          The claimant's view was that the job of a teacher "basically would take in those things of a Classroom Assistant, because if the Classroom Assistant was not there, then the teacher would perform their duties".

 

46.          It is worthy of note that the claimant's perception of the role of the Classroom Assistant, in this instance and generally, stood in stark contrast to the comprehensive detail provided by Dr Byrnes in her evidence as to the nature of the duties and insight in to the child's needs. The claimant also stated that he had worked as a one-to-one tutor, but he had not had "the title of Classroom Assistant".

 

47.          The claimant consequently appeared to the tribunal to consider that, in the absence of examples provided by him, the shortlisting panel should have assumed that his teaching experience automatically included that necessary for this post of Classroom Assistant. The shortlisting panel, however, awarded him the lowest score of 1 (x3 weighting = 3), as the claimant's application form did not specify experience (as the shortlisting panel's criteria interpreted that to mean) which could be assessed and scored as being potentially relevant to this post.

 

48.          C1 was given a score of 3 points (with a total score of 9 after weighting), because on her application form she had indicated that she had primary school experience as a special needs classroom assistant between September 2000 and June 2001 and September 2001 and June 2003.

 

49.          Under Other Relevant Experience, the claimant was awarded a score of 3, with a total score of 6 after weighting (x2). Under this heading, 4 points were awarded to candidates with "3 or more years with SEN children", 3 points for "other work with children"; 2 points for "other relevant experience" and 1 point for "no other relevant experience". Whilst the potential core scores of 1-4 remained the same, the lower weighting (x2) of that score diminished relative to the more relevant direct experience.

50.          The claimant's contention was that he should have been awarded 4 points for Other Relevant Experience. He mentioned on his application form that he had "taught special needs groups, including e.g. Down's syndrome classes and I have tutored two statemented children in numeracy/literacy". Whilst the claimant therefore mentioned experience in special needs, he made no reference at all in his application form as to the length of time, which might have brought him within the scope of the criterion for four marks, namely "3 or more years with SEN children".

51.          Nor indeed did he provide any example or detail about what he had actually done, to provide the panel with some insight as to his interactions with the pupils. Information provided would provide insight in to how the claimant enhanced the pupils' ability to engage in the learning and school environment, which then could be cross-referenced by the panel to the type of tasks necessary for appropriate and effective fulfilment of the requirements of this post. It is of note that the little information provided by the claimant about experience potentially relevant to this post was squeezed in, in smaller block capitals, at the very end of his application form, appearing almost as an afterthought to what otherwise was much more heavily focused upon his work as a teacher.

52.          The shortlisting panel considered that, in the absence of detail from him to confirm the required three years' experience, 3 (x2 weighting = 6) was the appropriate score for the claimant against this criterion. C1 was awarded a total of 8 marks (4 x2 weighting = 8). The shortlisting panel awarded her 4 points under this heading because C1 included on her application form that she had 3 years' experience working with a special needs child, with ample examples of her interaction with the child.

53.          The claimant further contended that C3 (male), who was also awarded 4 points, should have been awarded a 3 under this heading because C3's experience was mainly dealing with families. Despite this being a sex discrimination claim, the fact that this candidate was male did not appear to the claimant to preclude him from finding fault with the marks awarded to him.

 

54.          The application form of that male candidate showed that, in common with the claimant, he also had no experience as a Classroom Assistant. He was however awarded the maximum 8 points (4 x 2 weighting = 8) under this heading, because he included on his application form that he had more than three years' experience in the Royal Schools for the Deaf from February 2001 to March 2004 (thereby exceeding the three-year requirement), and that he had been working alongside teachers. In contrast to the claimant, C3 therefore not only had that other relevant experience, above the minimum timespan, but also made specific reference to it, supported by detail.

 

55.          The tribunal concluded from the information provided by the claimant that he did not provide any specific relevant detail or examples of his qualifications and experience as a teacher capable of properly being used by the shortlisting panel to award him higher marks for other experience relevant to the duties of this particular post.

56.          Scrutiny of the application forms of the shortlisted candidates clearly showed them to contain specific examples of their experience, which might properly be awarded higher marks by the panel because they were directly related to or sufficiently analagous to the duties contained within the job description. Despite being provided with the job description, which sets out the duties of the post, the claimant appeared to the tribunal to expect the shortlisting panel to make assumptions about his experience simply from the fact that he was a qualified teacher.

57.          The tribunal concluded that the claimant, in his evidence and approach at the hearing, demonstrated very little insight in to or understanding of the role of Classroom Assistant, either generally or in relation to the specific requirements of the post for which he applied.

 

58.          The tribunal accepted the evidence of Dr Byrnes that, whilst it is possible that a teacher may be able to perform the role of a Classroom Assistant, a different skill set is required, as the Classroom Assistant must assist and enable the individual child to access teaching in the classroom, and to maximise the child's ability to engage in the whole school experience.

 

59.          The claimant in his evidence embarked upon a self-scoring exercise. On the marks he awarded himself, his application form unsurprisingly came out ahead of those awarded by the shortlisting panel to the other candidates. Such a speculative exercise was not regarded by the tribunal as being an objective guide capable of being relied upon.

 

LAW AND CONCLUSIONS

 

60.          The question for the tribunal was whether or not the respondent had justified for shortlisting purposes, the criterion of appropriate experience.

61.          The Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001 substituted a new Article 3 in the Sex Discrimination (Northern Ireland) Order 1976 ("the Order"). This was the relevant law at the material time. Article 3(2) of the Order provided as follows:-

 

"(2) In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if -

 

(a)     on the ground of her sex, he treats her less favourably than he treats or would treat a man, or

 

(b)     he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but -

 

(i)         which is such that it would be to the detriment of a considerably larger proportion of women than of men,

 

(ii)        which he cannot show to be justifiable irrespective of the sex of the person to whom it applied, and

 

(iii)       which is to her detriment" .

 

These provisions relating to sex discrimination against women are to be read as applying equally to the treatment of men.

 

62. Indirect discrimination will occur where a person applies an apparently neutral provision, criterion or practice to the detriment of (in this instance) a man and to an overwhelmingly higher proportion of men than women, unless that criterion, provision or practice can be justified by objective factors unrelated to sex.

 

63. The Order was further amended, with effect from 5 October 2005, by the Employment Equality (Sex Discrimination) Regulations (Northern Ireland) 2005. These regulations, which were made under Section 2(2)(a) and (b) of the European Communities Act 1972 implemented in Northern Ireland, Council Directive 2002/73/EC of 23 September 2002 further amend Article 3(2) of the Order in respect of the definition of indirect discrimination as follows:-

 

"(b) he applies to her a provision criterion or practice which he applies or would apply equally to a man, but -

 

(i)       which puts or would put women at a particular disadvantage when compared with men,

 

(ii)      which puts her at that disadvantage, and

 

(iii)    which he cannot show to be a proportionate means of achieving a legitimate aim" .

 

Again, the wording is to be read as applying equally to the treatment of men.

 

Article 7 of the Order states that a comparison of the cases of persons of different sex under Article 3(1) or 1(2) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

 

The Burden of Proof Regulations

 

Article 63 A of the Order states:-

 

"(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent -

 

(a) has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of Part III or

 

(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination or harassment against the complainant, the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, he is not to be treated as having committed that act" .

 

64. The task of the tribunal in this case was simplified by the acceptance by the respondent at the outset of the hearing of the finding by the Court of Appeal that the criterion of appropriate experience was indirectly discriminatory.

 

65. The tribunal from its consideration of the evidence concluded that the respondent was correct in its acceptance, due to the overwhelming disparity between females and males who could comply with being able to demonstrate experience of working as a Classroom Assistant.

 

66. Had that been the only scope for prospective candidates to demonstrate their potential suitability, the respondent would have struggled to satisfy the tribunal that such a criterion was justified.

 

67. The respondent in this case however was not challenged by the claimant when it said that it included within the Additional Relevant Information section, a separate heading of Other Relevant Experience. The tribunal accepted Dr Byrnes 's compelling, credible and unchallenged evidence that this was deliberately included because the respondent recognised the potential to prevent men from being appointed, or even from applying, had the focus been too narrow, if solely on previous Classroom Assistant experience. The tribunal also accepted her evidence that the respondent not only was alert to the potential discriminatory effect; it wished to address and resolve it, not least because it would welcome more men being employed in the education sector as role models in a substantially female sphere.

 

68. The respondent pointed to the fact that a male candidate other than the claimant not only applied, but was shortlisted for interview, having been awarded the same overall mark as two of the other female candidates, despite having no qualification as or direct experience of working as a Classroom Assistant. Whilst this was worthy of note, the tribunal did not regard it as in and of itself determinative.

69. The criterion of appropriate experience was in the opinion of the tribunal properly viewed by the panel as being directly relevant to the post of Classroom Assistant, and was marked accordingly. Indeed, it would have been extremely surprising had such a criterion not been included. The sensitivities and challenges of this post clearly required someone with a proven ability to engage with the pupil as quickly and as seamlessly as possible. As such, the tribunal concluded that such a criterion had a genuine, legitimate aim or purpose, namely to help to guide the panel to select the most appropriate candidate for the post.

 

70. That emphasis on its relevance to the post however was recognised at the time by the respondent to introduce a discriminatory element as far as the recruitment process was concerned.

 

71. In order to meaningfully reduce the impact of that element, the respondent introduced an additional heading of Other Relevant Experience. The stated aim of this was that candidates without direct experience might nevertheless, through their other experience, demonstrate the ability to stand alongside candidates with direct experience as potentially being suitable for appointment. The outstanding example of this was the other male candidate. In the context of this case, the fact that another male was successful in obtaining an interview gravitates away from the claimant 's contention that this process was discriminatory. The tribunal considered that the introduction of the Other Relevant Information criterion, which enabled the male to progress in the competition, persuasively demonstrated that the respondent had successfully devised another channel to recruitment. Not only because the other candidate was male, but because he had no qualification as or experience of working as a Classroom Assistant.

 

72. Scrutiny of the other male candidate's application form, and those of the others shortlisted for interview, contained ample evidence, not only of the type of other, relevant work, capable of properly being cross-referenced to the role, but specific examples of it.

 

73. The claimant 's application form by contrast contained a dearth of information which might reasonably be deemed as potentially meeting the requirements of this role. No panel can award marks for information not included. The only conclusion the panel properly and reasonably could be expected to reach was that other candidates had demonstrated relevant experience in an analogous field, warranting higher marks and thereby deserving an interview.

 

74. The claimant, on that basis, completely failed to identify the necessity, and to take the available opportunity to provide the type or amount of information from which the panel realistically could be expected to reach that conclusion in his case. It seemed likely to the tribunal that he did not do so because he from the outset presumed that the fact of his teaching qualification and related experience was sufficient without more to secure him an interview, and, applying his terms, appointment. It was also possible that the claimant did not provide information or examples as to how he previously had obtained other relevant experience because he had none to give; but, regardless of the reason, the panel had no further information .

 

75. Dr Byrnes was clear in her evidence that the shortlisting exercise was essentially " mechanistic ", to identify those who, from the information provided, seemed to demonstrate the most potential to meet the demands of the post. It was at the interview stage that each individual would be required to put flesh on the bones of their application.

 

76. It was of note that the condition affecting the pupil, namely Asperger 's syndrome, was not specified in the advertisement. It was not clear if this was deliberately omitted by the respondent, but the tribunal concludes that, by not confining the advertisement to dealing with a particular condition, such omission had the clear potential to encourage a wider and more diverse range of applicants, thereby assisting to achieve the respondent's stated aim of widening the pool of candidates .

 

77. The tribunal has concluded that the respondent genuinely wished to do so, in order to find the best person for the post, regardless of their gender. The tribunal is further satisfied that the respondent genuinely recognised the gender imbalance in recruiting only using direct experience as a Classroom Assistant.

 

78. The tribunal is further satisfied that the criterion of appropriate experience had a legitimate aim or purpose, namely the appointment of the Classroom Assistant best suited to meet the needs of this particular child. The means adopted by the respondent to widen the scope of its criteria for shortlisting within the criterion of appropriate experience, by inviting candidates to provide whatever information they identified as appropriate , provided a sound basis for awarding marks.

 

79. The tribunal is satisfied that the evidence is strongly supportive of the view that the criterion of appropriate experience was thereby rendered suitable to achieving its intended, legitimate purpose, and that the shortlisting panel appropriately and fairly applied the information supplied by the claimant and the other candidates to an appropriate set of internal criteria, specifically devised for that purpose.

 

80. The tribunal is satisfied that the claimant had every opportunity to identify the requirements of this post, and to provide examples from which the panel could properly deem him to be as worthy of interview as the successful candidates, whose number included another male. He failed to do so, and that was the only reason why he did not secure an interview; it had nothing whatsoever to do with his gender.

 

81. The tribunal therefore is unanimously satisfied that the respondent has discharged the burden of proof in this case. The respondent did not indirectly discriminate against the claimant on the ground of sex, and his claim is dismissed in its entirety.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 28 & 29 August 2018, Belfast.

 

 

Date decision recorded in register and issued to parties: