THE INDUSTRIAL TRIBUNALS

CASE REF:	38/08IT

CLAIMANT:			Tommy McGowan

RESPONDENT:		Omagh District Council

DECISION
The unanimous decision of the tribunal is that the claimant was not subjected to less favourable treatment on the grounds of his sex, contrary to the Sex Discrimination Northern Ireland Order 1976 when he was not appointed to the position of duty manager Strule Arts Centre, Omagh.

Constitution of Tribunal:
Chairman:		Ms J Knight
Members:		Ms N Wright
			Mr J Patterson

Appearances:
The claimant appeared and represented himself.
The respondent was represented by Mr Conor Hamill, Barrister at Law instructed by Worthingtons Solicitors.

Issues

1.	The issue to be determined by the Tribunal was whether the claimant was subjected to less favourable treatment on the grounds of his sex, contrary to the Sex Discrimination (Northern Ireland) Order 1976 in comparison to the two candidates who were appointed to the post of part-time duty manager and the two candidates who were appointed to the post of standby part-time duty manager.  

The claimant’s adjournment application

2.	Before the hearing commenced on 24th November 2008, the tribunal heard representations from the parties in relation to directions made by the tribunal on the 18 November 2008 and the apparent failure of the claimant to provide medical evidence in support of his adjournment application. The claimant explained that he had tried to contact his consultant psychiatrist, Mr Connolly immediately he had received the directions of the Tribunal but that Mr Connolly was out of the office and was not due to return until the morning of 24 November. This was why no medical report was lodged with the tribunal office by 21 November deadline imposed by the tribunal. The claimant indicated to the tribunal that he still did not feel well enough to proceed and that he would prefer to have the hearing adjourned.  Mr Hamill BL objected to an adjournment. 

3.	 Having ascertained from the claimant that Mr Connolly did have a copy of the record of proceedings containing the questions to which it required satisfactory answers, the Tribunal initially rose for 10 minutes to allow the claimant to telephone Mr Connolly to enquire whether the medical report could be made available later that day. When the claimant advised that Mr Connolly could provide the report that day the tribunal allowed further time until 2pm to facilitate the production of the report.  At 2.10 pm a report was faxed to the Office of the Tribunals from Mr Connolly, Consultant Psychiatrist.  Having considered the report the Tribunal noted that Mr McGowan as well as having a number of physical problems suffers from depressive illness which was aggravated by his perception that the legal proceedings he is involved with in the Industrial Tribunal are unfair to him, primarily due to the non availability of legal aid.  The tribunal noted Mr Connolly’s view that further deterioration in his depression had further impaired the claimant’s ability to represent himself and his suggestion that “if there is any mechanism by which the Tribunal can authorise and fund representation from Mr McGowan this would substantially be to his benefit.  In addition it will allow me as a psychiatrist to further pursue increase in adjustments to anti-depressant medication which would be for the benefit of his health and would enable him to the best of his ability to pursue his claim at the Industrial Tribunal.”

4.	The Tribunal did not consider that this report answered in terms the specific questions asked by the Tribunal.  It did not state in terms that the claimant was unfit to proceed with his case on 24 November 2008.  At best the tribunal consider that the report by inference suggested the possibility of an adjournment to enable Mr Connolly to make adjustments to the anti-depressant medication.  The Tribunal noted that the deterioration in the claimant’s depression appeared to be linked to his perception that the proceedings were unfair because he does not have the means to pay for legal representation.  The Tribunal took into account that the unavailability of legal aid for Tribunal proceedings would remain the case for the foreseeable future and it has no powers to authorise or provide funding representation for the claimant.  Therefore in weighing the interests of the parties and need to avoid the waste of Tribunal time and resources the Tribunal decided that the case should proceed.  The Tribunal took into account that Mr Connolly did not suggest that any further deterioration was likely to be caused in the event that the case did proceed.  The Tribunal indicated to the parties that it would rise regularly for breaks every hour throughout the remaining hearing time and that the claimant should indicate whether he required more frequent breaks. Further the tribunal explained that it would take appropriate measures in accordance with the overriding objective of dealing with the case justly to assist the claimant as far as possible to ensure that the parties were on an equal footing. The hearing therefore commenced.

Sources of Evidence

5.	The Tribunal had regard to the written and oral evidence of the claimant, Mr McGowan, Ms Rosemary Rafferty, the respondent’s Head of Human Resources and Training,  Mr George Bradshaw, the respondent’s Tourism Development Officer and Front of House Manager of Strule Arts Centre, and Ms Dianne Doherty, Administration Officer, Omagh Leisure Complex.  The Tribunal read the statement of Councillor Johnny McLoughlin which was not challenged by the respondent.  The Tribunal had opened to it a bundle of agreed documentation.  

Findings of Fact

6.	The Tribunal made the following findings of relevant fact:

(1)	The respondent advertised for the position of Duty Manager of Strule Arts Centre on 9 August 2007.  The Job Description and Specification and Mr George Bradshaw, Tourism and Development Officer/House Manager of the Strule Arts Centre.  The main purpose of the job was to be responsible for the safe and effective operational management and security of Strule Arts Centre and to be the main point of contact with patrons and staff to ensure an enjoyable experience for all who visit Strule Arts Centre.  It was intended to appoint two part-time duty managers and two standby part-time duty managers as consequence of this recruitment exercise.  Applications were received from 20 candidates, of whom 16 were female and 4 male by the closing date of 24 August 2007. The claimant had management experience from 1982 when he commenced as a trainee manager with Wellworths.  He became grocery and fresh food manager between 1983 and 1989 during which period he was transferred on a number of occasions to bigger stores in that capacity.  In 1989 he was made general store manager of Wellworths in Shantallow with the responsibility for two deputy managers, 70 departmental supervisors and 95 staff in charge of both grocery and non-food departments.  He continued in this role until 2000 when he became owner manager of his own supermarket and filling station.  The claimant had to give up work in or about 2005 due to disabilities and ill-health.  At the time of his application to the respondent for this post the claimant was in receipt of disability living allowance and incapacity benefit.  The Tribunal is satisfied that the claimant was entitled to work for a limited number of hours each week without it interfering with his entitlement to incapacity benefit.  The Tribunal had before it evidence that the claimant had made applications for a number of posts in or about the end of 2007.  He conceded during his evidence at the hearing that apart from two casual enquiries with acquaintances he had not made a formal application for any other posts.

(2)	Miss Dianne Doherty was invited to join Mrs Rafferty and Mr Bradshaw and together comprised both the short listing and interview panel.  Mrs Rafferty as head of Human Resources and Training chaired the panel.

(3)	13 candidates were short listed and called to interview.  Of these 11 candidates were female and two male including the claimant.  There was no dispute between the parties that the claimant satisfied the short listing criteria as regard his qualifications and experience in that he was invited for interview. The claimant accepted at the hearing that he had not been less favourably treated in the short listing exercise. Although personal details were removed from the application form both Mrs Rafferty and Mr Bradshaw confirmed in their oral evidence that they were able to identify those candidates who were already employed by the respondent from the information contained in the application forms.

(4)	The short listed candidates including the claimant were invited to attend at interview on the morning of 7 September 2008.  One of the female candidates did not attend.  The interview panel agreed the questions to be asked of the candidates which were designed to assess the criteria of experience, facilities management, supervisor skills, customer care and team work.  The interviews were timetabled to be called in twenty minute slots and each interview lasted approximately 15 minutes with 5 minutes for score sheets to be completed by the interviewers.  Each question was given a separate weighting.  After applying the weighting multiplier, it was possible for candidates to score a maximum mark of 75. Each candidate was asked the same questions which were;

Experience – “Tell us about your experience to date which would make you suitable for the role of duty manager”.

Facilities Management – “You will be responsible for the operational management of the Strule Arts Centre including security of the building and event co-ordination please outline your experience in the area”.

Supervisory Skills – “From your own experience as a line manager please tell us what personal skills/attribute you have developed that would be of benefit in this post.”

Customer Care – “Drawing from previous experience tell us how you would ensure your efforts would create a good impression and provide excellent service to our customers.  Can you give an example of a time when you have had to deal with a complaint from a dissatisfied customer or colleague.”

Team Work – “The role of duty manager has shared responsibility, given that this is a new post and a new centre what steps would you take, in conjunction with your co-workers to ensure you provided an efficient service.”

(5)	Candidates were informed at the interview that the interviewers would be making notes and that they should not feel distracted.  The Tribunal accepted the evidence of the respondent’s witnesses that they each separately and independently made notes of each candidate’s answers to these questions and independently allocated marks out of 5 in respect of the answers given. 

(6)	At the conclusion of the interviews the panel completed an interview rank order summary sheet.  Candidate E0012 was ranked in first place with marks of 57 from Rosemary Rafferty, 59 from George Bradshaw and 58½ from Diane Doherty.  This female candidate was already employed by the respondent in a part-time post.  Candidate E0014 was ranked second with 56 from Rosemary Raffery, 58½ from George Bradshaw and 56 from Diane Doherty.  This candidate is female and is working for the respondent.  Candidate E0009 was awarded 54½ by all three interviewers.  She is an internal candidate.  Candidate E0013 was ranked fourth and was awarded 51½ by Rosemary Rafferty and 52½ by both George Bradshaw and Diane Doherty.  The claimant was ranked last and was awarded 25½ points by Rosemary Rafferty, 27½ by George Bradshaw and 24½ by Diane Doherty. The other male candidate was ranked as the third lowest scored candidate with 35 marks from each of the interviewers.  A female candidate was ranked second last with scores of 26 from Rosemary Rafferty, 27½ George Bradshaw and 26 from Diane Doherty.

(7)	On 10 September 2007 Mrs Rafferty wrote to the claimant to advise him that his application had not been successful.  The claimant wrote to her on 14 September 2007 requesting reasons for his non appointment as he thought this would be beneficial in helping him prepare for future interviews.  Mrs Rafferty subsequently spoke to the claimant by telephone and advised him that he scored low marks throughout his interview and that he might consider attending an interview preparation course.  She wrote to the claimant on 8 October 2007 advising him that his responses to the questions lacked detail and that the posts had been offered to other candidates.  She suggested that he could request copies of the completed interview record sheets from the respondent’s public relations officer as this information would be subject to data protection.  Copies of Mr McGowan’s interview score sheets were forwarded to him on 16 October 2007.  

(8)	The claimant wrote to Mrs Rafferty on 31 October 2007 requesting further information namely the sex of the successful candidates, whether the positions were filled internally or externally, whether the successful candidates had proven management experience in the field of security of buildings, line management, customer services, staff relations and operation management and the identity of the persons on the final selection panel.  Mrs Rafferty responded by letter of 14 November 2007. A further request for information was sent by the claimant to Mrs Rafferty by letter dated 15 November 2007 in which he requested copies of the interview record score sheets of the successful candidate and on 21 November 2007 he wrote again requesting further information, namely concerning the respondent’s recruitment and selection procedure and its application in this recruitment exercise, whether the short listing panel members had any interview, selection, recruitment or equal opportunities training and what were the essential criteria used for short listing and what were the attributes of the successful candidate in relation to experience.  

(9)	Mrs Rafferty responded to Mr McGowan by letter dated 29 November 2007 in which she confirmed that the interviewers stood over the marks awarded to him and suggested that any similarity between the scores may be an indication of the panel’s consistency.  Her view was that there was nothing untoward with the majority of the short listed candidates being female and that the successful candidates did not have an unfair advantage.  She advised that the successful candidates were appointed because in the opinion of the panel members they performed better than him at interview and provided better answers than the claimant to the questions asked.  She denied discrimination on the grounds of the claimant’s sex. 

(10)	On 1 December 2007 the claimant made a formal complaint to the Chief Executive of Omagh District Council about the appointments process and requested further information.  He advised that after communicating with the Equality Commission for Northern Ireland he believed that the treatment he received might amount to unlawful discrimination on the grounds of his sex or possibly disability.  He referred to a conversation which had taken place on 21 November 2007 when Mrs Rafferty advised Councillor McLaughlin that he could not represent the claimant because he was a councillor.  The Chief Executive responded to the claimant by letter dated 12 December 2007 providing answers to the claimant’s questions and enclosing a copy of the council’s equal opportunities policy and extracts of the local government staff commission procedures which the respondent follows in its recruitment exercises.  He provided the address of the website from which the entire document could be downloaded.  He stated that in his view Mrs Rafferty was quite correct to point out to Councillor McLaughlin that as a Councillor and therefore a member of the body against whom he was complaining that it was not appropriate for Councillor McLaughlin to advise the claimant.  His view was that the action was quite appropriate in order to protect the interest of council in the matter.  

(11)	On 13 December 2007 the claimant lodged an originating claim with the Office of the Industrial Tribunals and Fair Employment Tribunals in which he indicated that he wished the Tribunal to consider his complaint of sex discrimination.  Under details of the claim he stated that he had “applied to Omagh District Council for position of Duty Manager, interview panel 2 women, 1 male and 2 females employed were acquainted with interview panel.”  He indicated under section 9 of his originating complaint that in relation to special arrangements that he was being treated for type 2 diabetes, sleep apnea and depression. 

(12)	The respondent was subsequently announced winner of a Business and Community Opportunities Now Award on 30 April 2008 for the category of Advancing Women in Public Service and Mrs Rafferty received the award on behalf of the respondent.  This arose out of the  respondent’s involvement as a partner in a 2 year project known as the WRAPS Programme (Women Redress Advancement in Public Section) which commenced in June 2006 with the object of encouraging the progress of women in public sector employment. 

(13)	A press release issued by the respondent on 1 May 2008 stated that the evaluation of the programme showed that there was a fourfold increase in the number of women promoted in their workplace from 2006-2007 and almost 400% increase in the number of women applying for funding to the WRAPS programme for academic courses.  

Contentions of the Parties

7.	The claimant contended that he was treated less favourably than the female candidates who were ranked 1-4 in the appointments process.  He contended that there was collusion between the members of the interviewing panel, firstly in that his answers to the questions were scored lower than the successful female candidates and secondly that the interviewer deliberately did not record parts of his answers to the questions.  During the course of the hearing the claimant initially appeared to accept that the record sheets relating to the successful female candidates did accurately reflect the answers given by those candidates.  However during his submissions at the end of the hearing, the claimant contended that the score sheet did not accurately record the answers of the female applicants and that there had been discussion between the panel members as to what should be written on the sheet.  He contended “the dogs in the street in Omagh” knew that the two posts of Part time stand by Managers would be eventually filled by the two successful candidates.  This was because they were already employed by the respondent and had family connections with the interview panel which consisted of two females and one male.  He contended that Mrs Rafferty treated the female candidates more favourably than the male candidates because of the WRAPS project and that as Chairman of the interview panel she exerted undue influence over the other two members.  He contended that the similarity between the recorded answers and marks is evidence of collusion and that the successful female candidates had an advantage over him because they were familiar with the working practices of the respondent and knew the members of the interviewing panel. The claimant alleged that one of the successful candidates was appointed because her father was a close personal and business acquaintance Mr Bradshaw’s line manager.  He contended that the respondent deliberately attempted to mislead him and the tribunal by stating in replies for additional information that a Ms Alison McCullagh was the line manager of both Mrs Doherty and Mr Bradshaw when in fact the latter is line managed by a Mr Sweeney.  The claimant submitted that this was intended deliberately to mislead him and the Tribunal and was further evidence that one of the candidates was selected because of her family connections.  Further the claimant’s case was that this was an example demonstrating that the respondent was very evasive with their replies to his request for information. He had considered that he had no alternative but to lodge his complaint with the Office of Industrial Tribunal because of the perceived failure of the respondent to respond to his requests for information.  He contended that the evidence of the respondent witnesses was lacking in credibility and that for example the record sheets in his view show that the answer recorded on the score sheets of the successful candidates indicate that the answers recorded by the interviewers would have taken more than 3 minutes allocated per question. The claimant reiterated his views that it was unfair that he did not have any legal assistance or representation when the respondent could afford to engage solicitor and counsel and his perception that Councillor McLaughlin had been discouraged from representing him.

8.	For the respondent Mr Hamill BL submitted that the claimant’s case was flawed, contradictory and unsupported by any object of source of evidence and that the claimant’s allegations of collusion by the respondent are unfounded. .  The respondent’s case was that the recruitment process was fair and conducted in accordance with established procedures and that the successful candidates performed better at interview than the claimant. It was argued that the claimant’s claim of sex discrimination was weakened because he was also arguing nepotism and during the course of the hearing had raised the possibility of disability discrimination and suggested that he would have included complaints of religion and race had he considered it was open to him to do so.  It was contended that the claimant had failed to establish facts from which the tribunal could have concluded that the respondent has treated the respondent less favourably on the ground of his sex.  However in the event that the burden did shift the respondent had shown that the reason why the claimant was not appointed was because his performance at interview was not as good as that of the successful candidates rather than any other reason.

Law

12.	Article 3(1)A of the Sex Discrimination (Northern Ireland) Order 1976 as amended provides that “in any circumstances relevant for the purposes of any provision of this Order, other than a provision to which paragraph 2 applies, the person discriminates against a women if :

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

Article 4(1) provides that Article 3 and the provisions of Parts III and IV of the Order relating to sex discrimination against women, are to be read as applying equally to the treatment of men, and for that purpose shall effect with such modifications as are requisite.  
Part III of the 1976 Order deals with discrimination in the employment field.  Article 8(1) provides “it is unlawful for a person in relation to employment by him at an establishment in Northern Ireland, to discriminate against (a man);

(a)	In the arrangement he makes for the purposes of determining who should be offered that employment.  

Article 63(A)(2) provides “where on the hearing of the complaint, the claimant proves facts from which the Tribunal could apart from this Article, conclude in the absence of an inadequate explanation that the respondent – (a) has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of part III– 
The tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case maybe is not to be treated as having committed that act.”  

Guidance on the application of this provision was given by the Court of Appeal in the cases of Igen Limited –v- Wong 2005 IRLR 258 in which the Court of Appeal ruled that the guidance issued by the EAT in Barton –v- Investec Henderson Crosthwaite Securities Limited should be applied and amended as follows:

(1)	Pursuant to Section 63(a) of the 1975 Act it is for the claimant who complains of sex discrimination to prove on the balance of probabilities the 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 two where which by the virtue of Section 41 or 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 them.  In such 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 would therefore usually depend on what inferences it is proper to draw from the primary facts bound by the Tribunal.
(5)	It is important to note the word “could” in section 63(a)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 inference of secondary fact could be drawn from the facts.
(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 an 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 Section74(2) of the 1975 Act.
(8)	Likewise a 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 56(a)(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 maybe, is not to be treated as having committed that act.
(11)	To discharge that burden it is necessary for the employer to prove on a 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 from the facts from such inference can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex is 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, the Tribunal would normally expect cogent evidence to discharge that burden to proof.  In particular the Tribunal will need to examine carefully examinations for failure to deal with the questionnaire procedure and/or Code of Practice.  

The Tribunal was referred to a number of legal authorities, Banque Bruxelles Lambert SA –v- Eagle Star Insurance Company Ltd 1995 2WLR 607 CA, Seide –v- Gillette Industries Ltd 1980 IRLR 427 EAT and Chief Constable of West Yorkshire Police v Khan 2001 IRLR 830.

The Tribunal further considered the cases of Laing –v- Manchester City Council 2006 IRLR748, Madarassey v Nomura International Plc 2007 EWCA CIV 33, Shamoon –v- Chief Constable of the Royal Ulster Constabulary 2003 ICR 337.  

Conclusions

13.	The Tribunal carefully considered all of the evidence before it and the submissions of the parties and concluded that the claimant has not proven on the balance of probabilities, in the absence of an inadequate explanation, facts from which the Tribunal could conclude that he has been unlawfully discriminated against on the grounds of his sex. The tribunal considered that the correct comparator was a hypothetical female candidate who had the same qualifications and experience as the claimant, was shortlisted for interview and who gave the same or similar answers to the questions posed at interview. The tribunal had to consider whether in these circumstances the hypothetical comparator would have been appointed. The tribunal did not have to consider the shortlisting arrangements because the claimant accepted that having been shortlisted for interview, there was no less favourable treatment in this regard.

14.	The Tribunal did not consider that there was any evidence to support the claimant’s contention that the members of the interview panel had colluded in order deliberately to favour female or internal candidates.  The tribunal carefully examined the scores awarded by the interview panel and noted that the marks awarded by the panel members are not in fact identical, as was alleged by the claimant.  The interview rank order summary sheet shows that the total scores of each interviewer were different in respect of 9 of the candidates including the claimant and the 4 top ranked candidates.  The panellist scores totalled the same in respect of 3 of the candidates including the other male candidate.  The Tribunal took into account that the marks were awarded out of 5 in respect of each question before the waiting was applied.  The Tribunal considered that similarities between the scores reflected a consistency in approach between the panel members. Similarly the fact that there were similarities between the comments recorded on the interview sheets, is evidence  that the notes accurately reflect the actual answers given by each of the candidates albeit that the notes are not verbatim and are in a condensed form.  The Tribunal took into consideration that the claimant accepted in cross examination that the notes on the interview sheets did accurately reflect his answers albeit that they were condensed.  However he later contended that part of his answers were omitted.  The tribunal preferred the evidence of the respondent’s witnesses in this regard and by contrast found the evidence of the claimant to be contradictory and lacking in credibility.

15.	The tribunal considered that the notes did accurately reflect the claimant’s answer to the question posed in relation to experience. The claimant accepted that he stated that he had over 25 years management experience in supermarkets and that described his career progression in some detail. He believed that this demonstrated that his experience was superior to that of the successful candidates who were marked more highly in this regard.  The Tribunal carefully considered the interview notes and compared the recorded answers of the claimant and the successful candidates.  The Tribunal concluded that the claimant’s answers were not as full as those of the successful candidates and moreover that there is no record that he related his undoubtedly extensive management experience to the role of Duty Manager.  The Tribunal concluded that accordingly he did not demonstrate to the interview panel as well as the successful candidates how his experience was relevant to the post.  In reaching this conclusion the Tribunal considered that the answers given by the claimant and each of the successful candidates was consistent with the information provided by the applicants on their application forms.  The Tribunal considered that the scores allocated were commensurate with the answers given by each of the candidates.  The Tribunal therefore concluded that the reason why the claimant did not score as highly as the successful candidates was because he did not answer the questions as well as they did.

16.	However the Tribunal did go on to consider whether there were any other facts from which it could conclude that the claimant had been treated less favourably on the grounds of his sex.  In particular the Tribunal considered an inference of less favourable treatment could be drawn from the fact that Mrs Rafferty was involved in the preparation for the awards for the WRAPS project whether as a consequence she had a conflict of interest and should not have been involved in the interview process.  The claimant does not object in principle to the objects of the WRAPS scheme.  Clearly Mrs Rafferty also supports the objectives of the scheme and was involved in working to it as part of her responsibilities of her own post.  However, the Tribunal considered that it was clear that Mrs Rafferty also supports the principle that appointments should be made on merit and that the WRAPS project does not amount to positive discrimination (which would be contrary to the provisions of the 1976 Order) but that it amounts to lawful affirmative action. The tribunal noted that the second lowest scoring candidate was also female. Had it been the case that the panel wished to favour female candidates the tribunal would have expected the other male candidate to take the second last position. The Tribunal therefore decided that it could not draw an inference of sex discrimination from this fact.  The Tribunal further concluded that there was no evidence that Mrs Rafferty unduly influenced the other two members of the panel.

17.	The Tribunal went on to consider the claimant’s contention that one of the candidates was appointed because of her father’s relationship with Mr Bradshaw’s manager.  The Tribunal did not consider this to be evidence of sex discrimination, if anything, even if true this would amount to nepotism and the sex of the successful candidate in this instance would be irrelevant.  Likewise the Tribunal was unable to draw an inference of sex discrimination from the fact that two of the successful candidates were already employed by the respondent and that this gave them an unfair advantage.  The claimant suggested that Mr Bradshaw had a conflict because he was familiar with these two candidates and had described himself as becoming “friends through work”.  The Tribunal was unable to draw an inference of sex discrimination from this fact because all of the external candidates including the female candidates would have been disadvantaged by this not just the claimant and the other male candidate.

18.	The tribunal’s view is that it could not draw an inference of unlawful sex discrimination from the erroneous identification of Mr Bradshaw’s line manager. If anything this would only serve to strengthen the claimant’s nepotism argument and undermines his claim of less favourable treatment on grounds of sex.  

19.	Having carefully examined the documentation furnished by the parties and the case management discussion records, the tribunal could not accept the claimant’s argument that the respondent had failed to respond to his requests for information and documentation or that their replies were evasive. 

20.	For these reasons the Tribunal finds that the claimant has not established facts from which it could conclude that he was not appointed on grounds of sex. Therefore his complaint of unlawful sex discrimination is unfounded and the tribunal dismisses the claim in its entirety.

Chairman:

Date and place of hearing:	24-28 November 2008, Belfast	

Date decision recorded in register and issued to parties: