Flanagan vs Citizens Advice Armagh
| Judgment Date | 25 May 2018 |
| Docket Number | 00065/17FET |
| Respondent | Citizens Advice Armagh |
| Court | Fair Employment Tribunal (NI) |
FAIR EMPLOYMENT TRIBUNAL
CASE REF: 65/17FET
CLAIMANT: Phil Flanagan
RESPONDENT: Citizens Advice Armagh
DECISION
The unanimous decision of the tribunal is that the claimant had been unlawfully discriminated against by the respondent on the ground of political opinion and compensation of £5,500.00 is awarded, together with £365.26 interest.
Constitution of Tribunal:
Vice President: Mr N Kelly
Members: Ms M O’Kane
Mr A Carlin
Appearances:
The claimant appeared in person and was unrepresented.
The respondent was represented by Mr McGettigan of Peninsula Business Services.
BACKGROUND
1. The claimant is a former Sinn Féin MLA.
2. The respondent is a company limited by guarantee providing advice services in Armagh.
3. On 21 June 2016, the claimant applied for the position of manager in the respondent company. He was shortlisted with another candidate, Mrs Morris, and both attended for interview. He was not selected for appointment. Mrs Morris was appointed even though she had not satisfied the first shortlisting criterion.
4. On 27 July 2017 the respondent company wrote to the claimant rejecting his application and stating;
“After giving careful consideration to all the selection criteria, it was felt that your skills, knowledge and experience were not as strong as the other candidate who has been offered the position.
I would, however, like to retain your application on file and contact you should a suitable vacancy occur in the future.”
On any reading of the evidence, that was not an accurate explanation of events. The claimant had received the highest marks against the selection criteria, when the marks given by the three members of the interview panel were added together and the chairperson of the interview panel, who had drafted that letter, had felt that the claimant had scored significantly higher than the other candidate against the selection criteria.
5. The claimant sought feedback. That was received by the claimant on 11 September 2017 and stated;
“In our assessment process, the interview panel must form its view only the basis of the examples given in your interview. On this occasion, the panel considered that, while you did show some evidence of being able to manage a service ramp-up, you did not provide sufficient evidence of how you would meet customer needs or complete day to day work based on current priorities and demands, including understanding of service delivery at a regional or wider level.”
Again, on any reading of the evidence, that was not an accurate explanation of events. It did not state that the claimant had received the highest aggregated marks and it did not put forward any of the reasons for non-appointment which were variously advanced by the respondent’s witnesses in the course of the hearing.
6. The claimant issued a Statutory Questionnaire under the Fair Employment and Treatment (Northern Ireland) Order 1998 on 20 September 2017.
The respondent company did not acknowledge that Statutory Questionnaire and did not at any stage reply to that Questionnaire.
7. The claimant lodged tribunal proceedings on 4 October 2017, alleging unlawful discrimination on the grounds of his political opinion.
8. A response was lodged on behalf of the respondent company on 21 November 2017. The respondent company denied that the claimant had been discriminated against on the grounds of his political opinion. The response stated;
“The respondent submits that the reason for the application being denied was due to a previous employment issue”.
9. Again, on any reading of the evidence, this was not an accurate explanation of events. It did not state that the claimant had received the highest aggregated marks and it did not put forward all of the reasons variously advanced by the respondent’s witnesses in the course of the tribunal hearing. In particular, the response did not state that the reason for the claimant’s unsuccessful application for employment was due to a failure to properly complete part of the application form. It did not rely on the reasons outlined in the letter of 27 July 2017 or in the feedback received on 11 September 2017.
This had been the first occasion on which a “previous employment issue” had been mentioned by the respondent company. The alleged employment issue had not been mentioned anywhere in the contemporaneous presentation and interview marking sheets, or in the letter of 27 July 2017 or in the feedback on 11 September 2017.
10. It first emerged in the course of this litigation that the claimant had received the highest aggregate markings of the two candidates who had been interviewed for appointment to this post; that the chairperson of the interview panel had felt he had been the best candidate by a significant margin and that he had not been appointed following a discussion after the conclusion of the interview process.
Procedure
11. This case had been case managed. Directions had been given for the interlocutory procedure and for the exchange of witness statements in advance of the hearing.
12. Those witness statements took the place of oral evidence-in-chief. Each witness swore or affirmed to tell the truth, adopted their previously exchanged witness statement as their evidence-in-chief and proceeded immediately to cross‑examination and then to re-examination.
13. The claimant gave evidence on his own behalf.
14. The three individuals who had sat on the interview panel gave evidence on behalf of the respondent company; Ms Lyn Roper, Mr William Parr and Ms Elaine Murphy. Ms Murphy had been the chairperson of the interview panel. The respondent did not call Mr Pól Callaghan, or anyone from HR to give evidence, even though it would appear that discussions between these parties and with Ms Murphy after the conclusion of the interview led to the decision not to appoint the claimant.
15. The evidence in this matter was heard on 1 and 2 May 2018. The parties made final submissions on the 3 May 2018. The panel met on 18 May 2018 to consider the evidence and the submissions and to reach its decision. This document is that decision.
Relevant Law
16. The proper approach for a Tribunal to take when assessing whether discrimination has occurred and in applying the provisions relating to the shifting of the burden of proof in relation to discrimination has been discussed several times in case law. The Court of Appeal re-visited the issue in the case of Nelson v Newry & Mourne District Council [2009] NICA -3 April 2009. The court held:-
“22 This provision and its English analogue have been considered in a number of authorities. The difficulties which Tribunals appear to continue to have with applying the provision in individual cases indicates that the guidance provided by the authorities is not as clear as it might have been. The Court of Appeal in Igen v Wong [2005] 3 ALL ER 812 considered the equivalent English provision and pointed to the need for a Tribunal to go through a two-stage decision-making process. The first stage requires the complainant to prove facts from which the Tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination. Once the Tribunal has so concluded, the respondent has to prove that he did not commit the unlawful act of discrimination. In an annex to its judgment, the Court of Appeal modified the guidance in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 333. It stated that in considering what inferences and conclusions can be drawn from the primary facts the Tribunal must assume that there is no adequate explanation for those facts. Where the claimant proves 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. To discharge that onus, the respondent must prove on the balance of probabilities that the treatment was in no sense whatever on the grounds of sex. 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 be...
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