Lennon vs Department for Regional

FAIR EMPLOYMENT TRIBUNAL

CASE REF: 75/11FET

CLAIMANT: Dr Charles Richard Alan Lennon

RESPONDENT: Department for Regional Development

DECISION

The unanimous decision of the Tribunal is that the claimant was the subject of unlawful discrimination on the ground of religious belief, and that he was not the subject of unlawful discrimination on the ground of political opinion.

Constitution of Tribunal:

Chairman: Mr S A Crothers

Members: Mr A Crawford

Mr B Maguire

Appearances:

The claimant was represented by Mr Tony McGleenan, Queens Counsel, instructed by the Equality Commission for Northern Ireland.

The respondent was represented by Mr P Maguire, Queens Counsel, and
Mr Martin Wolfe, Barrister-at-Law, instructed by the Departmental Solicitors Office.

The Claim

1. The claimant claimed that he had been subjected to less favourable treatment on grounds of his religious belief and/or political opinion contrary to the provisions of the Fair Employment and Treatment (Northern Ireland) Order 1998 (“the Order”) as a result of the failure of the respondent (“DRD”) to appoint him to the position of Chair of Northern Ireland Water (“NIW”). The respondent denied the claimant’s allegations of unlawful discrimination in their entirety.

ISSUES BEFORE THE TRIBUNAL

2. The agreed main legal and factual issues were presented in their final form to the Tribunal on 25 April 2012 and are as follows:-

LEGAL ISSUES

Was the Claimant subjected to less favourable treatment on grounds of his religious belief and/or political opinion contrary to the provisions of the Fair Employment and Treatment (Northern Ireland) Order 1998 as a result of the failure of the Respondent to appoint him to the position of Chair of NIW?

FACTUAL ISSUES

1. Did the Minister direct that the selection panel for the post of Chair of NIW should provide a list of appointable candidates unranked in terms of relative merit

2. Was the Claimant advised at the interview that the Minister would be provided with a list of unranked candidates suitable for appointment

3. Which Ministerial colleagues did the DRD Minister consult with prior to reaching the decision to appoint the successful candidate on 21^st March 2011

4. Were the Department’s published Procedures for Handling Public Appointments 2009, applicable to this appointment process? If so, did the Respondent comply with the Procedures?

5. What was the applicable version of the Public Appointments Commissioners Code? Was the appointment of the Chair of NIW conducted in accordance with the terms of the applicable Public Appointments Commissioners Code?

6. Did the Commissioner for Public Appointments criticise this appointments process in her audit? If so, in what respects did the Commissioner make criticisms, and if criticisms were made to what extent are any criticisms relevant to the Claimant’s complaints?

7. Did the applicable Commissioner for Public Appointments Code require the Minister to record and retain reasons for the appointment of the successful candidate?

8. Was the successful candidate well known to the Minister and his party ministerial colleagues?

9. Who made the Minister aware that, in his role as Chair of ABFI and Chair Designate of ESA, the successful candidate had shown himself to be adept at leading his organisation through sensitive and difficult issues?

10. Did the successful candidate have extensive experience and skills as a highly regarded Chair of public bodies?

11. Was the successful candidate particularly well qualified for the role of Chair of NIW?

12. Was the successful candidate readily available for the post of Chair of NIW?
13. When did the successful candidate resign his appointments with ESA and NITHCO?

14. Do publicly available records of DRD Ministerial appointments demonstrate a material bias against the appointment of candidates from a Protestant community background?

15. Was the successful candidate favoured for the post because he was not from a Protestant community background and had established relationships with the DRD Minister and his ministerial party colleagues?

16. Why was the successful candidate appointed to the post?

17. Why was the Claimant not appointed to the post?

18. Did Mr. Murphy meet Mr. Hogan prior to making the decision to appoint him as Chair of NIW?

Sources of Evidence

3. The Tribunal heard evidence from the claimant and on his behalf, from Felicity Huston, Commissioner for Public Appointments between August 2005 and 31 July 2011, and from John Simpson, Academic Economist. On DRD’s behalf, the Tribunal heard evidence from Kerry Dugan, an Executive Officer II in the Minister for Regional Development’s Private Office, Gary Fair, Director of the Water Shareholder Unit within DRD, Dr Malcolm McKibbin, Permanent Secretary of DRD from 19 August 2010 to 16 October 2011, (and currently head of the Northern Ireland Civil Service), Lian Patterson, Senior Finance Director (Grade 3 – Deputy Secretary) within DRD at the material time, Conor Murphy (Westminster MP for Newry and Mourne since 2005 and MLA for the same constituency since 1998), and Minister for Regional Development in the Northern Ireland Executive between 2007 and June 2011 (“the Minister”). The tribunal also heard evidence on DRD’s behalf from Sean Hogan, Chair of NIW, from March 2011.

The Tribunal was presented with witness statements and bundles of documents and was assisted by an agreed statement of facts and a chronology of events which are appended to this decision. If also received a bundle of authorities for consideration, as referred to in an agreed list.

Findings of Fact

4. Having considered the evidence insofar as same related to the issues before it, the Tribunal made the following findings of fact on the balance of probabilities:-

(i) The respondent advertised for appointments to the Board of NIW which had had a troubled history. The closing date for the receipt of applications for non-executive Director positions was 5.00 pm on Friday 28 January 2011. Completed forms for the Chair position were to arrive with the respondent by 5.00 pm on Friday 14 January 2011. Under the heading of “Equality of Opportunity” the advertisement for the post states as follows:-

“The Department for Regional Development is committed to the principles of public appointments based on merit with independent assessment, openness and transparency of process. The Department is also committed to equality of opportunity and welcomes applications from all suitably qualified applicants irrespective of religious belief, gender, disability, ethnic origin, political opinion, age, marital status, sexual orientation or whether or not they have dependents.

Information packs and application forms can be provided in alternative formats and applicants who require assistance will be facilitated on request. Applicants invited for interview will be eligible for reimbursement of reasonable travelling expenses”.

(ii) Ministerial public appointments in Northern Ireland were governed at the material time by the Code of Practice for ministerial public appointments for Northern Ireland (1 February 2010): (“The Code”), and by Procedures for Handling Public Appointments (September 2009) (‘The Procedures’) which the tribunal also considered insofar as relevant. The process followed in this case was in two stages – a selection and recommendation stage by an interviewing panel (“stage 1”), and a second stage involving a submission to the Minister followed by his decision on the appointment (“stage 2”). The process was the subject of independent scrutiny by the Office of the...