Peifer v La Salle Boys School Belfast Education and Library ... [2013] NIIT 01508

THE INDUSTRIAL TRIBUNALS

CASE REF: 1508/05

CLAIMANT: James Robert Peifer

RESPONDENTS: 1. La Salle Boys School

2. Belfast Education and Library Board

DECISION

The unanimous decision of the tribunal is that the claimant’s claims are dismissed.

Constitution of Tribunal:

Chairman: Mrs Ó Murray

Members: Mrs K Elliott

Mr J Welsh

Appearances:

The claimant represented himself.

The respondents were represented by Ms A Finnegan BL instructed by Mr O’Rawe, Education & Library Boards Solicitor.

THE CLAIM

1. The claimant claimed sex discrimination in relation to his non-appointment as a classroom assistant at La Salle Boys School.

THE ISSUES

2. The issues for the tribunal were as follows:-

(1) Did the claimant’s claim include a claim for indirect discrimination?

(2) Was the claimant discriminated against on grounds of his sex in relation to his non-appointment as a classroom assistant at La Salle Boys School in the competition which took place in July 2005?

SOURCES OF EVIDENCE

3. The tribunal heard oral evidence from the claimant on his own behalf. The tribunal heard from Mr Kevin Carville, the Special Educational Needs Co-ordinator (SENCO) at the school at the relevant time and Mr Dominic Murray, Chairman of the Board of Governors and Chairman of the recruitment panel. The tribunal had regard to the documentation to which it was referred in the two bundles produced by the parties.

THE LAW

4. The definition of discrimination in employment at the relevant time was contained in Article 3 of the 1976 Sex Discrimination (Northern Ireland) Order (SDO) which states as follows at Article 3:-

“3 - (2) In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if -

(a) on the ground of her sex, he treats her less favourably than he treats or would treat a man, or

(b) he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but -

(i) which is such that it would be to the detriment of a considerably larger proportion of women than men,

(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and

(iii) which is to her detriment.

(3) Paragraph (2) applies to -

(a) Any provision of Part III …”

5. The above provision defines direct and indirect discrimination. It is clear from the indirect discrimination definition that the application of the provision criterion or practice (PCP) must cause a detriment to the claimant.

6. The sex discrimination provisions apply equally to men by virtue of Article 4 of SDO. Discrimination in the employment field also covers applicants for employment by virtue of Article 8 of SDO.

7. The claimant alleged that the domestic legislation failed properly to implement European Directives 2002/73/EC and 2006/04. The claimant’s contention was that the Directives did not require a claimant to prove personal disadvantage in order to succeed in an indirect discrimination claim. The claimant referred to the ECJ decisions of: Mangold v Helm – case 144/04 2006 IRLR 143; Centrum Voor Gelijkheid Van Kansen En Voor Racismebestrijding v Firma Feryn NV. (ECJ) [2008] IRLR 732; Johnston v the Chief Constable of the RUC (ECJ) 1986 IRLR 263. He also alluded to the principle that access to justice is a fundamental right as is the right to an effective remedy.

8. We reject the claimant’s argument that he does not need to show personal disadvantage in order to succeed in a direct discrimination case. We reject his application for a reference to the European Court of Justice on this point as to whether or not the relevant Directives were properly implemented by the domestic legislation.

9. In the Feryn case, public statements by the employer that it would not employ ‘immigrants’ led to a presumption that it operated a racially discriminatory recruitment policy. We find that the Feryn decision does not assist the claimant on the facts in this case.

FINDINGS OF FACT AND CONCLUSIONS

10. We considered the oral evidence the documents to which we were referred, and the submissions of the parties, insofar as they were relevant to the case before us. We reached the following facts on a balance of probabilities and arrived at the following conclusions having applied the legal principles to the facts found.

Case Management

11. The claimant applied for an adjournment of the case on the morning of the hearing having twice requested an adjournment on the week before the hearing. The basis of his application was that he had had inadequate time to prepare for the hearing as he had only started looking at the case the previous week. The tribunal considered the submissions of both sides and rejected the application for an adjournment on the basis that the claimant had had ample time from the date the case was listed in October 2012, to prepare the case; the events in issue occurred eight years ago and it was in the interests of justice for the case to be determined sooner rather than later particularly in circumstances where the claimant could give no alternative date on which he would be prepared to proceed with the case.

12. The claimant applied to record the proceedings. The tribunal considered the submissions of both sides and rejected the application to record the proceedings for reasons given orally at the hearing.

13. The claimant stated during the first morning of hearing that his hearing aid battery had run out but stated that he had no objection to the hearing proceeding that morning as he was able to hear sufficiently. The Chairman asked the claimant if wished to have time to obtain another battery from a chemist or whether he wished to do so at lunchtime and the claimant refused indicating that he would obtain a battery when he returned home that evening. The Chairman urged the claimant to indicate immediately if he was not able to hear any part of the proceedings and urged the claimant to obtain another battery at lunchtime.

14. At the outset of the hearing the Chairman ascertained the likely number of witnesses and timetabled the hearing. In the main the claimant ran out of time when giving his evidence or questioning the respondent’s witnesses. The claimant was given a further 20 minutes to finish his evidence-in-chief and was given a further five to ten minutes to pose his last questions to each witness.

15. The Chairman allowed one hour to each side to make their oral submissions. The claimant was given a further five minutes at the end of the hour to make his final points.

16. Shortly before the end of the claimant’s evidence-in-chief he sought discovery of three categories of documents from the respondent. After hearing submissions from both sides the tribunal rejected the application for discovery of two of the categories of documentation for reasons given orally at the hearing. The respondent voluntarily provided copies of the qualification documents relating to the successful candidates and these were given to the claimant on the morning of the second day of hearing. The claimant was given time to look at those documents during a recess and he then completed his evidence-in-chief making no reference to the documents nor to any point which he wished to make relating to those documents. The claimant then sought to introduce evidence and those documents during his submissions on the final day of hearing. The Chairman stopped the claimant from introducing such new evidence at that point in the hearing given that it did not form part of the claim outlined in his evidence-in-chief.

17. The claimant repeatedly sought to produce evidence or question witnesses in relation to an indirect discrimination claim attacking the two essential criteria which were applied at the initial shortlisting stage. Given that the claimant was actually shortlisted and could not therefore show a personal detriment relating to any such indirect discrimination claim, the Chairman exhorted the claimant to concentrate on the relevant issues in his case which related to the direct discrimination case and his apparent contention that he should have been offered one of the jobs rather than one of the four successful candidates. Despite repeatedly reminding the claimant that the indirect discrimination claim did not form part of his case, the claimant persisted in using a large part of the time available to him in exploring that case. It was clear that the case related to a comparison between the claimant and the four successful candidates and the claimant was periodically urged to concentrate on that side of the case.

Factual Findings

18. The respondent school initiated a recruitment exercise for classroom assistants in relation to a number of ‘statemented’ children with special educational needs who were due to start the school in September 2005.

19. Mr Carville was the SENCO which meant that it was his responsibility to ensure that there was a suitable classroom assistant in place in September for each child with a statement. There was a time pressure therefore to have the classroom assistants in post by the end of August as any delay in that regard would mean that the school could be in breach of its legal obligations to have a suitable classroom assistant for each child with a statement.

20. In June 2005 Mr Carville was told that there were three children with statements due to start, namely one child with a physical disability and two children with Autistic Spectrum Disorders (ASD). Mr Carville was also aware that there was a possibility that a fourth child would be starting though he knew at the end of June that he needed at least three classroom assistants and possibly four.

21. The claimant criticised the involvement of Mr Ritchie as Secretary to the Board of Governors. Mr Ritchie was the Bursar. We find that there was nothing untoward in the role of Mr Ritchie in this case which involved such a large school. We find nothing untoward in his involvement in the process.

22. Mr Carville started working on questions for the interview process in June and based these questions on his cluster group training which took place in 2001 and with his experience of previous competitions. He worked on the questions to tailor them to the needs of the specific children who were to start in September. For example, one of the questions related to the requirement for flexibility and one of the indicators related to having first-aid experience. Mr Carville felt this was important as one of the children was physically disabled.

23. The first stage in the recruitment process was that the application forms were checked by BELB to see that everyone met the essential criteria. The two essential criteria related to, firstly, having a relevant qualification which appeared on a generic circular JNC34. The second essential criterion required one year’s experience of Special Educational Needs (SEN) in a school setting.

24. There were 17 application forms which were shortlisted to 10.

25. The 10 shortlisted candidates’ forms were forwarded to the school for further shortlisting if the school determined that that was required.

26. The claimant was one of those candidates who were shortlisted as he was determined to have met the essential criteria. As the claimant met the shortlisting criteria he cannot show any detriment which he suffered due to the application of those criteria and he therefore does not have an indirect discrimination case.

27. On 22 July 2005, there was a shortlisting meeting which was attended by Mr Carville as the SENCO (and therefore the expert in the field) Mr Murray, the Chairman of the recruitment panel, and Mr Ritchie the Bursar and secretary to the Panel. By this stage Mr Carville knew that a fourth child was very likely to require a classroom assistant when he started in the September and the panel therefore knew that out of the 10 candidates they needed probably four posts.

28. At the shortlisting meeting it was determined that no enhanced criteria would be required given that they required four candidates from the pool of 10. One of the other reasons that enhanced criteria were not used was that the panel decided that there was a very wide range of experience and it was hard to compare each candidate’s experience. It was therefore decided to call all 10 forward for interview. We find nothing untoward in the decision to call all 10 for interview nor do we find that anything untoward happened at the shortlisting meeting. We reject the claimant’s claim that the conduct of the shortlisting meeting indicated that he was later discriminated against when he was not offered a post. The fact that enhanced criteria were not used did not cause a detriment to the claimant.

29. The interviews took place on 2 August 2005. The voting members of the panel were Mr Murray as Chairman, Ms Burns and Brother Columba. Mr Carville attended as an observer and scored the candidates but he was not involved in the decision on the successful candidates. Mr Carville’s role in the interview process was as the SENCO and the expert and he was therefore there as a professional adviser. Mrs O’Rawe, a classroom assistant, also attended as an observer.

30. Of the 10 candidates called for interview, two withdrew and one did not attend. This left seven candidates, including the claimant, who were actually interviewed. All the candidates were interviewed for 15 minutes each and were all asked the same questions. The panel filled out scoring charts and took brief notes in relation to the answers given by each candidate to the questions posed.

31. The claimant in evidence-in-chief attacked two of the questions, namely question three and four, which stated as follows:-

“3. There may be an administration/secretarial aspect to this work. What personal qualities and/or experience would you bring to this aspect of the job?

● Evidence of this type of work, even in a non-educational setting and computer experience and/or qualification.

4. Special needs pupils are often reluctant learners. How, in your personal contact with them, would you attempt to overcome this?

● Use of Persuasion, Giving Praise, Encouragement through difficult tasks, Awards.”

32. The claimant’s evidence-in-chief was that the notes for each successful candidate and for him in relation to question three indicated that he got “as good a write up as they did” and the implication was that he should have been offered one of the posts.

33. In cross-examining the respondents’ witnesses, the claimant sought to widen his attack on the questions by criticising the requirement for questions two and five which concerned qualifications relating to reading recovery and phonics, and the requirement to be flexible with the examples given of minor first-aid and helping pupils with literacy problems with their reading.

34. The claimant stated in questioning that he demonstrated flexibility because he was willing to relocate to Belfast and to take a drop in pay and to work as a classroom assistant rather than as a teacher. We accept the respondents’ evidence that the claimant did not say this at the actual interview. In addition, this did not form part of the claimant’s case in his evidence-in-chief.

35. The claimant’s point on the experience of phonics or reading recovery was that relevant courses could only be done if someone was in post. We accept Mr Carville’s evidence that anyone, male or female, could do the courses whether or not they were in a school obtaining experience. Essentially, the claimant could have done relevant courses in preparation for the classroom assistant post which he applied for. His failure to do so disadvantaged him but this did not amount to unlawful discrimination.

36. The claimant alleged in cross-examination of the respondents’ witnesses that an NVQ in Early Years was not relevant to the post as it related to children up to eight years old. The claimant’s point appeared to be that this point was included in the questions in an effort to ensure that two classroom assistants known to Mr Carville would get the posts. We reject the claimant’s point on this and accept entirely Mr Carville’s point that experience in reading recovery for children of that age was directly relevant to the post where older children required help with reading because their reading was not at the optimum standard for their age.

37. The voting members’ scores decided the final order of candidates. There were three successful candidates and a reserve candidate. The reserve candidate ultimately was offered a post when the fourth child with a statement was confirmed.

38. On the scoring sheets to which we were referred, the claimant scored the lowest score of all seven candidates. Mr Murray and Mr Carville explained that the claimant’s performance at interview was poor in the following respects: the claimant did not appear to be flexible in that his answers were very black and white; he did not indicate an empathetic approach which was essential especially for the ASD children; many of his answers were rambling and hesitant; questions had to be repeated once or twice; the claimant put his elbows on the desk and put his head in his hands to think; the claimant would start sentences then tailed off and skipped to another thought which was disconcerting; the claimant tended to go off at a tangent; there was limited factual evidence in relation to the criteria.

39. In summary, the claimant came across very badly at interview and was unable to demonstrate to a sufficiently high degree competence and experience in relation to the questions asked. We accept entirely the evidence of Mr Carville and Mr Murray that this was the reason why he scored so badly. We do not accept that this related to his sex nor do we accept that this is evidence from which we could conclude that sex discrimination occurred.

40. In relation to any indirect discrimination relating to the case presented to us, the claimant has failed to identify a PCP that was applied equally to all candidates but which disadvantaged him as a man in the interview process.

41. There was some discussion at hearing about whether BELB or the school was the employer of the classroom assistants. We find this point to be irrelevant in this case. The claimant sued both respondents and it is clear that, if the claimant had proved the required primary facts, the SDO would have covered his situation.

42. The claimant argued that his two degrees should have been given a higher rating and should have been reflected in the scores given to him. The claimant made this point for the first time in submissions. It was not referred to in cross-examination specifically although he appeared to make the point that as a teacher and degree holder he should have obtained one of the jobs.

43. We do not find it to be a flaw in the process that no specific marks were given for the claimant’s qualifications. This point was not put to the respondents’ witnesses. The marks were related to the questions asked and none of the questions related to the weighting of qualifications.

44. For the first time in submissions the claimant alleged that candidate J did not in fact have the qualification required for the first essential criterion applied by BELB. The claimant received those documents on the morning of the second day after an application on the first day (see paragraph 16 above). He was given the time to study the documents and he made no reference in his evidence nor in cross-examination of the respondents’ witnesses to this point. It was therefore not part of the case put before us and submissions on that point were disallowed.

45. The claimant alleged that the process was corrupt because Mr Carville was not a credible witness. In support of this point, the claimant referred to Candidate C who was not short listed and who protested to the board essentially stating that Mr Carville had promised the job to her. We accept Mr Carville’s evidence that he became aware of this point made by Candidate C for the first time when shown documents in preparation for the hearing before this tribunal. We accept that Mr Carville was very annoyed that he did not have a chance at the time to defend himself and we accept his denial that he made this representation to that candidate. In the event the candidate was not short listed and we find that this does not support the claimant’s case at all even if it had been true that Mr Carville had made those representations, his denial of which we accept. Candidate C was not short listed because she did not meet the criterion. We find that that supports the respondents’ case. We do not accept that it is evidence of a corrupt process.

46. We found Mr Carville to be a credible witness and indeed a man of integrity and we accept his evidence and the veracity of his evidence entirely.

47. The claimant had a particular preoccupation with statistics relating to classroom assistants and with the operation of the JNC Circular. His criticism appeared to be that this was a female-dominated job at the time and that the majority of people who put themselves forward for the relevant qualifications were female. The claimant appeared to make the case that it was pre-determined that he would not get the post at interview because he was a man as this was a female-dominated post at the time. On the facts in this case we do not find the statistical evidence to be supportive of the claimant’s case. We find that a similarly poorly-performing woman would have failed to get the job too.

48. The panel noted the claimant’s derogatory reference to the post of classroom assistants. For example, he stated in his documentation:-

“The job of classroom assistant is held by a workforce, which is over 99% females. It is a part-time, low-paid, low-esteem, subservient, insecure, vulnerable job - a female job.”

49. The claimant’s attitude appeared to be that, as a maths teacher, he could not see how lower qualified individuals could have beaten him in the competition. We wish to record the emphatic denial by the respondents' witnesses of the claimant’s derogatory description of the job.

SUMMARY

50. The claimant has failed to point to a PCP which led to the requisite adverse disparate impact and the individual detriment which is required for an indirect discrimination claim. That claim therefore fails as the claimant has failed to prove relevant primary facts.

51. The claimant’s claim of direct discrimination fails as he has failed to prove facts from which we could conclude that an act of discrimination occurred. The burden of proof therefore does not shift to the respondent.

52. The claimant’s claims are dismissed in their entirety.

Chairman:

Date and place of hearing: 28-31 January 2013, Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Peifer v La Salle Boys School Belfast Education and Library ... [2013] NIIT 01508_05IT (27 February 2013) URL: http://www.bailii.org/nie/cases/NIIT/2013/1508_05IT.html Cite as: [2013] NIIT 01508_05IT, [2013] NIIT 1508_5IT

Industrial Tribunals Northern Ireland Decisions