McClean vs Waterside Neighbourhood
| Jurisdiction | Northern Ireland |
| Judgment Date | 20 February 2017 |
| Docket Number | 00071/15FET |
| Court | Fair Employment Tribunal (NI) |
| Respondent | Waterside Neighbourhood |
FAIR EMPLOYMENT TRIBUNAL
CASE REF: 71/15 FET
CLAIMANT: Gary McClean
RESPONDENT: Waterside Neighbourhood Partnership Ltd
DECISION
The unanimous decision of the Tribunal is that the claimant had been unlawfully discriminated against by the respondent contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998. Compensation for loss of earnings, expenses, and injury to feelings, together with interest is awarded, as calculated in this decision.
Constitution of Tribunal:
Vice President: Mr N Kelly
Members: Ms F Cummins
Mr I O’Hea
Appearances:
The claimant was represented by Mr G Grainger, Barrister-at-Law, instructed by Equality Commission for Northern Ireland.
The respondent was represented by Mr N Philips, Barrister-at-Law, instructed by Worthingtons, Solicitors.
Background
1. The claimant is a community worker. At the relevant times, he worked in the Curryneirin and Tullyally areas in the eastern part of Londonderry. He describes himself as a socialist, who is critical of Sinn Fein and who is critical of what he alleges is an agenda between Sinn Fein and the Democratic Unionist Party to carve up influence (and funding) between themselves in segregated areas.
2. The respondent is a limited company involved in community development in the North West. It was created to deal with contractual, funding and employment issues on behalf of the Waterside Neighbourhood Partnership. That Partnership is an unincorporated body which comprises representatives from various community organisations, from DSD and from the four main political parties.
3. The claimant applied for the post of Community Development Officer (‘CDO’) in Curryneirin. This was a post which had previously been provided directly by the Curryneirin Community Association and was now provided by the respondent to whom DSD had provided funding.
4. The claimant was shortlisted for interview together with two other candidates. Criteria were set. Questions and model answers were set. A threshold mark was set of 59 marks out of 90 total potential marks. The claimant exceeded the threshold of 59 marks. The other two candidates did not reach that threshold. The three person interview panel signed a document recording those marks and the marks of the two other candidates. The document also recorded that the claimant was the person to be appointed.
5. Nevertheless, the claimant was not appointed to the post of CDO. He was advised that the competition would be re-run. The competition was re-run. The claimant did not take part in that second competition and the post was awarded to another individual.
6. The claimant alleges that the decision of the respondent organisation not to appoint him had been an act of direct discrimination on the ground of political opinion contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998.
Relevant law
Unlawful discrimination
7. 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 adduced to discharge the burden of proof. In McDonagh v Royal Hotel Dungannon [2007] NICA 3 the Court of Appeal in Northern Ireland commended adherence to the Igen guidance.
23 In the post-Igen decision in Madarassy v Nomura International PLC [2007] IRLR 247 the Court of Appeal provided further clarification of the Tribunal’s task in deciding whether the Tribunal could properly conclude from the evidence that in the absence of an adequate explanation that the respondent had committed unlawful discrimination. While the Court of Appeal stated that it was simply applying the Igen approach, the Madarassy decision is in fact an important gloss on Igen. The court stated:-
‘The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient matter from which a Tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination; ‘could conclude’ in Section 63A(2) must mean that ‘a reasonable Tribunal could properly conclude’ from all the evidence before it. This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent in contesting the complaint. Subject only to the statutory ‘absence of an adequate explanation’ at this stage, the Tribunal needs to consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) and available evidence of all the reasons for the differential treatment.’
That decision makes clear that the words ‘could conclude’ is not be read as equivalent to ‘might possibly conclude’. The facts must lead to an inference of discrimination. This approach bears out the wording of the Directive which refers to facts from which discrimination can be ‘presumed’.
24 This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination. In Curley v Chief Constable of the Police Service of Northern Ireland [2009] NICA 8, Coghlin LJ emphasised the need for a Tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the Tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The Tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”
8. In S Deman v Commission for Equality and Human Rights & Others [2010] EWCA Civ 1279, the Court of Appeal considered the shifting burden of proof in a discrimination case. It referred to Madarassy and the statement in that decision that a difference in status and a difference in treatment ‘without more’ was not sufficient to shift the burden of proof. At Paragraph...
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