Smyth vs Office of the First Minister
| Jurisdiction | Northern Ireland |
| Judgment Date | 22 February 2011 |
| Respondent | Office of the First Minister |
| Docket Number | 00063/08FET |
| Court | Fair Employment Tribunal (NI) |
FAIR EMPLOYMENT TRIBUNAL
CASE REFS: 63/08 FET
581/08
CLAIMANT: Marie Breen Smyth
RESPONDENT: Office of the First Minister and Deputy First Minister
DECISION
The unanimous decision of the Tribunal is that the claimant’s claims for unlawful discrimination on the grounds of religious belief, political opinion and/or sex are dismissed.
Constitution of Tribunal:
Chairman: Mr Patrick Kinney
Members: Ms Caitriona Stewart
Ms Carmel Lewis
Appearances:
The claimant was represented by Mr C Hamill, Barrister-at-Law, instructed by Worthingtons, Solicitors.
The respondent was represented by Mr M Wolfe, Barrister-at-Law, instructed by The Departmental Solicitor’s Office.
Issues
1. The issues were identified at the start of the hearing. The claimant complained that she was discriminated against on the grounds of religious belief, political opinion and/or sex in:-
(1) The respondent’s failure to appoint her to the post of Victims Commissioner.
(2) The respondent’s failure to appoint her as a Victims Commissioner Designate in January/February 2008.
Facts
2. The claimant applied for the post of Victims Commissioner in February 2007. The terms of the Victims and Successors (Northern Ireland) Order 2006 envisaged the appointment of one Commissioner. The appointment was a public appointment and was subject to the Code of Practice for Ministerial Appointments to Public Bodies. The process was the subject of independent scrutiny by the Office of the Commissioner for Public Appointments in Northern Ireland (‘OCPANI’). Under the Code, an independent assessor appointed by OCPANI is involved at every stage of the process up to the point when a list of suitable candidates is forwarded to the Minister.
3. The process in this case was started by the Secretary of State for Northern Ireland under Direct Rule then in place. The process required the creation of a selection panel, a shortlist of suitable candidates and an interview of candidates properly assessed against the published criteria. The Secretary of State under the provisions of the Code selected what was known as the ‘suitable/unsuitable’ model. The selection panel, prior to interview, agreed an appropriate pass mark for candidates. A list of all those candidates that the panel considered suitable for appointment was then to be presented to the Minister who would select a candidate from that list. No individual markings or rankings of those deemed suitable would be provided to the Minister. There was a brief supporting background information of each candidate to allow particular skills or other relevant factors to be taken into account by the Minister.
4. The claimant was invited to interview by the selection panel (‘the first selection process’). She was one of six candidates deemed suitable and her name, with five others, all went forward to the next stage of Ministerial Selection. At interview stage the selection panel were concerned to establish that the candidate satisfied the threshold for appointability. To do this each candidate was marked individually by the panel members. Those marks were then discussed and a moderated panel mark was determined. It was the moderated panel mark which determined the overall mark.
5. In the first selection process, the claimant obtained the highest combined total of individual panel marks of 151. The next best candidate was one point behind on 150. When those individual scores were discussed and moderated, the panel mark was 50 for the claimant and 51 for the other candidate. These marks were used not to rank the candidates, but to establish if they had reached the necessary standard to be deemed suitable.
6. The decision-making responsibility for the appointment had by this stage passed from the Secretary of State to the First Minister and Deputy First Minister (‘OFMDFM’) the respondent in this case. There was some delay on the part of the respondent in making any announcement relating to the appointment. In the interim the claimant had been requesting updates. She then received a telephone call from a journalist who informed her that she was the successful candidate and asked for a comment. The journalist did not identify the source of the information.
7. In July 2007 the respondent decided to explore whether the competition could be extended. The First Minister and Deputy First Minister consulted civil servants, OCPANI, and took legal advice. Whilst the advice from the civil service was unsupportive the OCPANI accepted the decision and co-operated in the establishment of ‘the second selection process’.
8. The respondent issued a statement on 8 October 2007 regarding the extension of the process and the reasons for it. They said:-
“We inherited a process commenced under Direct Rule Ministers. However we are now operating under a new political dispensation which has democratic endorsement and support across the community. We want to take full ownership and full responsibility for this process. It is important that the person appointed to this post has a full democratic endorsement associated with a process taken forward under our administration.
To put it bluntly, we believe that some potential applicants may have been deterred from putting themselves forward for the post during Direct Rule because they could not be confident of securing the broad political support of the local parties that they would need to become a true champion for victims and survivors in Northern Ireland.”
9. A meeting took place between the respondent and OCPANI on 17 October 2007. The Commissioner suggested a new panel should carry out interviews. She noted the positive response to advertisements which supported the view that re-advertising would increase the potential field of candidates.
10. The new panel met on 17 November 2007. To avoid any unfair advantage it was agreed that different questions be asked but the criteria remained the same. Those, including the claimant, deemed suitable after the first interview would not be required to undertake the second interview.
11. Interviews took place in November 2007 and a further three candidates were deemed suitable. Of the nine potential candidates deemed suitable, seven now remained in the competition and they made presentations in December 2007 to the First Minister and Deputy First Minister, along with two junior ministers, Mr Paisley (Junior) and Mr Kelly. Mr McMillen, a Civil Servant was also present. The only note kept at this presentation was that of Mr McMillen who used the note to prepare an aide memoire for the First Minister and Deputy First Minister.
12. On 8 January 2008 the First Minister and Deputy First Minister informed their officials that they wished to appoint four Commissioners. Legal advice was sought. On 11 January 2008 a meeting with OCPANI took place at which the Commissioner was informed of the intention to create four posts. OCPANI responded later that day to confirm it was content with this approach provided that it was clear all four of the proposed Commissioners met the criteria as advertised and that the reason for appointing four Commissioners was that they would collectively do the best jobs for victims.
13. It was recognised by the respondent that new legislation would be required and that Commissioners could not be appointed until such legislation was in place. On 17 January 2008 the four candidates selected, including the claimant, were written to, to establish if they would each be willing to act as a Commissioner in a Victims Commission. Each candidate would become a Commissioner Designate and be employed on a consultancy basis until the legislation could be put in place. These letters followed phone calls made by civil servants to the four candidates, Michael Nesbitt, Patricia McBride, Bertha McDougall and the claimant. Various comments were made expressing some concern at the proposals by the candidates. The claimant in correspondence subsequent to the telephone conversation expressed concerns about the creation of additional posts. She felt that the four posts created additional costs and organisational and management difficulties. She had doubts about the role of the Commissioner Designate in the interim period and the possibility that new legislation may not get passed by the Assembly. She did not know the identity of the other candidates and felt that there was a material change in the job description. She considered that the post of Commissioner Designate would be unworkable and she would...
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