FAIR EMPLOYMENT TRIBUNAL
CASE REFS: 00311/98 FET
02471/98 RR
CLAIMANT: Saranjit K Nijhar
RESPONDENTS: 1. Oliver McCullough
2. Professor B Dickson
3. Colin Knox
4. University of Ulster
DECISION
The unanimous decision of the Tribunal is that the claimant was not unlawfully discriminated against on grounds of race, religion and/or politics.
Constitution of Tribunal:
Chairman: Mrs P Smyth
Members: Mr Campbell
Mr Pyper
Appearances:
The claimant was represented by Mr Lewinsky, Barrister-at-Law, instructed by Hudgell & Partners, Solicitors.
The respondents were represented by Ms M Lewis, Barrister-at-Law, instructed by The University of Ulster.
- The issue to be determined by the Tribunal is whether the claimant was unlawfully discriminated against on the grounds of her race, religion or political beliefs in the respondents' failure to appoint her to the post of Research Officer at the University of Ulster School of Public Policy, Economics & Law. The claimant is an Indian Sikh woman. She alleges that the reason for her non-appointment was that she was not a local Northern Irish person from either the Catholic or Protestant community background.
- The Tribunal heard evidence from the claimant, Professor Brogden and Professor Bryett on her behalf. The Tribunal heard evidence from Professor Dickson, Professor Knox, Oliver McCullough and Ms Maguire on behalf of the respondents.
The post
- The post was a two year research project to consider the alternative criminal justice system (eg threats, warnings, punishment beatings or paramilitary assaults, shootings and executions) 'policed' by paramilitaries in Northern Ireland.
- The job description stated that the research would 'draw on the experiences of violence in South Africa as a comparator to help understand the phenomenon and its conclusions will assist policy-makers in tackling this problem'.
- However, at the interview which the claimant attended, it was made clear that the South African component of the research was not definite due to budgetary constraints.
The selection process
- Five applications were received for the post. Three candidates were short-listed including the claimant. One candidate withdrew his application prior to interview.
- The interviews for the post were arranged for 24 March 1998. Prior to the interview date the claimant contacted the respondents to say that she was ill and would be unable to attend the interview. A decision was taken to re-arrange the claimant's interview, but to interview the remaining candidate, Mr P, on the agreed date.
- Following the interviews of the claimant and Mr P the selection panel decided not to appoint either candidate to the position, but to re-advertise the post.
- The post was re-advertised a short time later. The claimant did not apply. Mr F was appointed. The personnel specification was changed in order to attract a wider pool of candidates. The relevant changes were as follows:-
1. Educational and Professional Qualifications
First Post Essential
First or upper second class honours degree, or a higher degree in a social science discipline related to law or public policy.
Desirable
Higher degree by research in a social science discipline related to law or public policy.
Second Post Essential
First or upper second class honours degree, or a higher degree in a relevant social science discipline, law or public policy.
Desirable
Higher degree by research in a relevant social science discipline, law or public policy.
2. Previous experience/training
First Post Desirable
1. …
2. Project Management experience ideally in the area of law or public policy.
3. …
Second Post Desirable
1. …
2. Project management experience, in a relevant area.
3. …
3. Research and Analogous Activities
First Post Essential
1. At least two years research experience in an area of law or public policy.
2. Experience in writing research reports.
Desirable
1. Comparative public policy or law research experience ideally in violence or criminal justice.
2. Publications or publications-in-progress in peer-reviewed journals.
Second Post Essential
1. At least two years research experience in a relevant area.
2. Experience in writing research reports.
Desirable
1. Relevant comparative research experience ideally in violence or criminal justice.
2. Publications or publications-in-progress in peer-reviewed journals.
The correct comparator
- There was a dispute between the parties as to the correct comparator for the purposes of the legislation in this case. The respondents submitted that the correct comparator was Mr P the candidate against whom the claimant competed in the first selection exercise, and who had been adjudged equally unsuitable for the post. The claimant submitted that the correct comparator was the candidate who was ultimately successful, Mr F, even though the claimant had not competed against him because she had not applied for the post when it was re-advertised.
- The Tribunal accepts that Mr F cannot be the correct comparator within the terms of the legislation because the circumstances are materially different. As the Tribunal has already set out, the personnel specification was changed significantly, Mr F and the claimant were not both being considered by the panel, and there was no evidence that Mr F was even asked the same questions which the claimant had been asked at her interview. However, the Tribunal also accepts that the suitability of the claimant and Mr F was assessed for the same post within a very short period of time. Furthermore, it was Mrs Lewis, on behalf of the respondents, who put Mr F's qualifications and experience in evidence before the Tribunal. The Tribunal considers therefore that the evidence relating to Mr F is relevant to the issue which the Tribunal has to determine, namely whether the reason for the claimant's non-appointment was her race, religion or politics. We consider that the appropriate comparator in this case is a hypothetical Northern Irish person, who was perceived either Catholic or Protestant with similar qualifications and experience as the claimant. We have come to this view because it is clear that Mr P did not have comparable research experience for the post, and since the respondents accept that 'on paper' the claimant was a very suitable candidate the real issue for the Tribunal is whether a local Northern Irish candidate with a similar academic background would have been treated more favourably than the claimant. The evidence relating to Mr F is relevant to that issue, and in deciding how a hypothetical comparator would have been treated, the Tribunal considered the treatment afforded to Mr F.
The interview process
- The interview which the claimant attended consisted of two parts, namely a prepared presentation to the panel and ten set questions which both candidates were asked.
- The selection panel consisted of Professor Dickson, Professor Knox and Ms Maguire, a Human Resources Officer. It was accepted that Ms Maguire did not have the expertise to assess the suitability of the candidates. Her role was to ensure the process was fully documented, and to deal with any Human Resource issues which might arise in the course of the interview. Despite this, Ms Maguire completed an assessment sheet on each candidate and recorded her own conclusions as to suitability, although the Tribunal accepts that the decision was made by Professor Dickson and Professor Knox.
- The University of Ulster selection procedures state:-
"At the end of each applicant's interview each panel member will complete an interview assessment sheet".
The Tribunal accepts that it is clearly envisaged that separate notes will be taken during the interview to enable the assessment sheet to be completed once the interview has finished. Professor Knox did not follow this procedure and the only notes available are contained on the interview assessment sheets.
- The Report of the Appointments Panel concluded:-
"Neither candidate appointable. Ms Nijhar was below specification on interpersonal skills and on the borderline as regards the relevance of her personal experience/training, Mr [P] was clearly below specification as regards the relevance of his personal experience/training."
The claimant's experience
- The claimant contended that the panel's assessment of her experience was untenable, and she pointed to her lengthy record of research in the area of conflict and violence particularly in South Africa which was the comparison stated in the job advertisement. She compared her treatment to that of Mr F who was considered appointable, despite the fact that his research record was almost entirely in the field of medical ethics with the exception of an ongoing period of research into punishment beatings which she accepted was very relevant.
- It was submitted on behalf of the claimant that Mr F did not satisfy the essential criterion of 'two years research in a relevant area'. Mr Lewinsky contended that the word 'relevant' meant relevant to the subject matter of the post which was violence or criminal justice. The respondents denied that such a limited interpretation was correct. Professor Dickson gave evidence that the panel considered research into any area of law or public policy to be relevant and that the extent of the experience would be tested at interview. He also stated that other areas of research may have been considered relevant, but he could not recall at this stage what other areas were considered.
- In deciding this issue, the Tribunal considered the wording of the two personnel specifications under the heading 'research and analogous activities'. The Tribunal did so on the basis that the purpose of amending the specification was to widen the pool of eligible candidates. In the personnel specification for the first post the essential criterion is stated as 'at least two years research experience in an area of law or public policy'. The desirable criterion is stated as 'comparative public policy or law research experience, ideally in violence or criminal justice'. In the personnel specification for the second post the essential criterion was changed to read 'at least two years research experience in a relevant area'. The desirable criterion was changed to read 'relevant comparative research experience ideally in violence or criminal justice'. If the claimant is correct and the essential criterion for the second post required research specifically in the area of violence or criminal justice the respondents would have effectively substituted the desirable criterion for the essential criterion. This would have narrowed the pool of eligible candidates rather than widening it and therefore we do not accept that the essential criterion was limited to research into violence or criminal justice. We therefore do not accept that Mr F did not satisfy the essential criterion in view of his extensive research record in the area of law and public policy in addition to his ongoing research into punishment beatings.
- The Tribunal does accept however that the claimant's extensive research record was in a more relevant area than that of Mr F. The Tribunal also accepts that, as documented, the claimant's experience of project management was clearly demonstrated, whereas it was not clear whether Mr F had such experience. Furthermore the claimant's experience of carrying out interviews was superior. However, the Tribunal accepts that Mr F's research record was also extensive, and in particular he had a much greater number of 'peer-reviewed' publications which was a desirable criterion, and which the claimant did not have. Peer-reviewed publications are highly regarded in the area of academic research. The Tribunal also accepts that the research into punishment beatings which Mr F was involved in at the time of the selection process was directly relevant to research into the 'alternative justice system' which was the purpose of the post.
- The central issue in dispute between the parties was the claimant's performance at interview. The respondents accept that on the basis of her application form and CV the claimant was a very strong candidate. Their case is that she did not demonstrate that she had the relevant experience or interpersonal skills at interview. In particular, the respondents deny that the claimant performed in the manner described to the Tribunal, or that she provided the panel with the relevant details of her experience in South Africa.
The content of the interview notes
- There were two particular criticisms made of the panel's notes. The first related to the remarks chosen to describe the claimant's performance and the second related to the alleged lack of evidence recorded to justify the remarks. The claimant alleged that words such as 'supercilious', and 'evasive' were racist and demonstrated a lack of cultural sensitivity. Professor Brogden on behalf of the claimant alleged that 'evasiveness' was a common characteristic of women from the Punjabi region and that there could be a cultural tendency to 'talk sideways' rather than directly.
- The Tribunal had the opportunity of hearing the claimant giving evidence and in particular being cross-examined. The Tribunal's view is that she was extremely articulate and direct in her speech. Furthermore, the claimant herself did not accept that anything in her performance could have explained the panel's conclusion. The Tribunal does not accept that the claimant exhibited the characteristics of Punjabi speech at her interview.
- The Tribunal does not accept that the words 'evasive' or 'supercilious' are inherently racist. Professor Dickson explained the word 'supercilious' as meaning that the candidate purported to have knowledge or experience which in his view she did not in fact have. The mere fact that an interviewer expresses his opinion strongly does not assist in an assessment of whether unlawful discrimination occurred, in our view.
- The Tribunal does however accept that the interview notes are deficient insofar as they do not provide, in many instances, examples to justify the negative conclusion reached. The Tribunal entirely accepts that an interviewer is not expected to keep a verbatim note of what is said at interview – or indeed anything like a verbatim note. This is not required by the Fair Employment Code of Practice, nor is it a realistic expectation. However, an interviewer is recommended to keep sufficient notes to explain the reasons for his/her decision. A negative assessment without any evidence recorded to justify it does not assist an interviewer to demonstrate that the assessment is objective and not tainted by discrimination.
The interview
- The claimant made a specific allegation that during the interview she was asked a direct question relating to her political views and that she told the panel she was unwilling to answer the question. In evidence she explained that she believed she would be acting in breach of the Official Secrets Act which she had signed before being permitted to teach within prisons in Northern Ireland. All three members of the interview panel strenuously denied the allegation.
- The Tribunal is satisfied that the question in dispute was asked following the claimant's presentation. A full note was not made of the actual question. However, we are satisfied from the note which was made and from evidence given by Professor Dickson that the question related to whether there might be a different reason or explanation for the occurrence of informal justice in the Loyalist community as opposed to similar informal justice in the Republican community. We are also satisfied from the note and from Professor Dickson's evidence that the claimant did not give any explanation.
- The Tribunal is also satisfied that this question could not reasonably be construed as a question designed to elicit the claimant's own political allegiances. The purpose of the question was to explore whether the claimant knew that there was a school of thought in Northern Ireland that the reason informal injustice occurred in Republican communities was largely due to the perceived absence of an acceptable police force, whereas in Loyalist communities the reason related to the preferred method of discipline within paramilitary organisations. The Tribunal is also satisfied that in the context of this post, which involved a comparative study of informal justice within both communities the question was entirely reasonable.
- The Tribunal also considered the claimant's evidence that she told the panel she was unwilling to answer that question. All three members of the panel vehemently denied that the claimant had told them that she was unwilling to answer any question during the interview. The Tribunal is satisfied that the sensitivities of an incident of that nature occurring in Northern Ireland are such that no interview panel would forget that it had occurred, regardless of the lapse of time. We therefore have to decide on a balance of probabilities whether the claimant genuinely did construe the question as being an improper question and whether she expressed an unwillingness to answer the question on the grounds that it might elicit her personal political views. The Tribunal prefers the evidence of the respondents for the following reasons:-
- The claimant wrote to the respondents on 28 April 1998 and 8 May 1998 raising serious concerns about her non-appointment. She did not make any allegation that an improper question relating to her political views had been asked at interview, and that she had stated her unwillingness to answer it.
- On 5 August 1998 the respondents sought further particulars of the claimant's claim.
The respondents specifically asked the question:-
"In what way was the interview not related to the specified post? Please detail fully and precisely how you substantiate the claim?"
A detailed response was made to this question, and to all questions asked. At no stage did the claimant allege that she was asked a question which she interpreted as eliciting her political views and that she had told the panel she was unwilling to answer the question.
- The allegation appeared for the first time in the claimant's witness statement dated July 2005, seven years after the interview.
- The Tribunal is satisfied that if this event had occurred, as the claimant alleged, she would have made a specific complaint about it at the earliest possible stage. The Tribunal is not satisfied that the incident occurred as described by the claimant.
- After being informed that she was unsuccessful, the claimant wrote to the Vice-Chancellor of the University seeking an explanation for her non-appointment. Mr McCullough, Head of Human Resources, responded to the letter explaining that "it is not policy to outline to external candidates why they were not appointed". The claimant subsequently discovered that Professor Dickson had given feedback to an external candidate in another recruitment exercise.
- The Tribunal accepts that it is the University's policy not to give feedback in view of the very large number of external recruitment exercises undertaken each year and the practical difficulties which feedback would entail. The Tribunal also accepts that Professor Dickson does not follow this policy and does give feedback if he is contacted directly by any candidate. The Tribunal considers that if the University has a policy of not giving feedback to external candidates its staff should abide by that policy. Although we accept that Professor Dickson would have given feedback to the claimant if she had contacted him, clearly the reason she did not do so was because she was unaware that such an option was available. The failure of Professor Dickson to follow the University's policy, whilst not an indicator of discrimination, fuelled the claimant's belief that she had been treated less favourably on grounds of race, religion or politics.
The law
- Article 3(2) of the Fair Employment and Treatment (Northern Ireland) Order 1998 provides that a person discriminates against another person on the grounds of religious belief or political opinion in any circumstances relevant for the purposes of this Order if:-
(a) on either of those grounds he treats that other less favourably than he treats or would treat other persons; …
(b) …
Article 3 provides that a comparison of the cases of persons of different religious belief or political opinion under Paragraph (2) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other. Similar provisions appear in the Race Relations (Northern Ireland) Order 1997.
- The Burden of Proof Regulations
(32.1) Article 38A of the Fair Employment and Treatment Order states:-
"63A(2) Where, on the hearing of a 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 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 against the complaint;
the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed that act."
Article 52A of the Race Relations (Northern Ireland) Order 1997 contains similar provisions.
(32.2) Guidance on the application of these Regulations has since been given by the Court of Appeal in Barton v Investec Henderson Crosthwaite Securities Ltd and Igen Ltd v Wong [2005] IRLR 258. In Igen Ltd v Wong [2005] IRLR 258 the Court of Appeal ruled that the guidance issued by the EAT in Barton v Investec Henderson Crosthwaite Securities Ltd should be applied in amended form as follows:-
(1) Pursuant to Section 63A of the 1975 Act, it is for the claimant who complains of [sex] discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant which is unlawful by virtue of Part 2, or which, by virtue of Section 41 or Section 42 of the 1975 Act, is to be treated as having been committed against the claimant. These are referred to below as "such facts".
(2) If the claimant does not prove such facts he or she will fail.
(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that "he or she would not have fitted in".
(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.
(5) It is important to note the word "could" in Section 63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see where inferences of secondary fact could be drawn from them.
(6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.
(7) These inferences can include, in appropriate case, any inferences that it is just and equitable to draw in accordance with Section 74(2)(b) of the 1975 Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within Section 74(2) of the 1975 Act.
(8) Likewise, the tribunal must decide whether any provision of any relevant Code of Practice is relevant and, if so, take it into account in determining such facts pursuant to Section 56A(1) of the 1975 Act. This means that inferences may also be drawn from any failure to comply with any relevant Code of Practice.
(9) Where the claimant has proved facts from which conclusions could be drawn that the employer has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the employer.
(10) It is then for the employer to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.
(11) To discharge that burden it is necessary for the employer to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since "no discrimination whatsoever" is compatible with the Burden of Proof Directive.
(12) That requires a tribunal to assess not merely whether the employer has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.
(13) 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 discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or Code of Practice.
The Tribunal's conclusions
- In the Tribunal's view the claimant has proved facts from which, in the absence of an adequate explanation, the Tribunal could conclude that the claimant had been unlawfully discriminated against. Those facts are:-
(1) The claimant's academic qualifications and experience particularly in relation to violence in South Africa.
(2) Her experience of project management which was clearly superior to that of the successful candidate.
(3) Her record of research in the area of criminal justice and violence whereas the successful candidate's research record was mainly in the area of medical ethics.
(4) Her experience of carrying out interviews which was clearly superior to that of the successful candidate.
(5) The fact that the interview notes do not in many instances record the reason for negative conclusions.
- The respondents must therefore discharge the burden of proof and satisfy the Tribunal that the decision not to appoint the claimant was "in no sense whatever" tainted by unlawful discrimination. The explanation that is given by the respondents is that the claimant performed badly at interview, and did not demonstrate the skills and experience that were apparent from her application form and CV. The respondents pointed to interview notes which recorded that one question had to be asked three times. They also alleged that the claimant was evasive, imprecise and irrelevant in answers to questions. Professor Dickson told the Tribunal that he was particularly mystified at her inability to speak meaningfully about the fact that so-called "punishment attacks in Northern Ireland are perpetrated by members of Loyalist paramilitary organisations as well as Republicans". In his view she "lacked the sensitivity and understanding required to conduct interviews with victims of this form of violence in Northern Ireland". The claimant on the other hand is adamant that she performed very well at interview and that she was unfairly assessed because of subconscious racial, religious and/or political prejudice on the part of the panel. The issue for the Tribunal is essentially one of credibility. The Tribunal accepts that the interview notes are deficient in that they do not record in many instances examples to justify the negative conclusions reached. However, the Tribunal has accepted that the claimant made an untrue allegation that she was asked a question which she believed was designed to elicit her political views and which she told the panel she was unwilling to answer. We have accepted the evidence of the respondents that the claimant did not state that she was unwilling to answer any question, and that she simply could not explain the different reasons believed to be associated with informal criminal justice in the two communities which was the purpose of the question asked by Professor Dickson. In view of the Tribunal's findings at Paragraphs 24 – 27 above, the claimant's credibility has been seriously undermined. We therefore prefer the evidence of the respondents as to the claimant's performance at interview, and conclude that the respondents have discharged the burden of proof.
Chairman:
Date and place of hearing: 19 – 23 September 2005 and 13 December 2005, Belfast
Date decision recorded in register and issued to parties:
