Linda Moore v QUB FET

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					                   FAIR EMPLOYMENT TRIBUNAL
                                                                CASE REFS: 194/05FET;
                                                                              1499/05

CLAIMANT:                   Linda Moore


RESPONDENT:                 Queen‟s University, Belfast


                                        DECISION
The unanimous decision of the Tribunal is that the Claimant was not unlawfully
discriminated against on the grounds of sex, religious belief or political opinion.


Constitution of Tribunal:

Chairman:                   Mr Kinney

Members:                    Mr Gourley
                            Mrs Savage


Appearances:

The claimant was represented by Miss Bradley, Barrister-at-Law, instructed by the
Equality Commission.

The respondent was represented by Mr Wolfe, Barrister-at-Law, instructed by the
respondent.


ISSUE

1.    The issue to be determined by the Tribunal is whether the claimant was unlawfully
      discriminated against on the grounds of her sex, religion or political belief in the
      respondent‟s failure to appoint her to the post of lecturer in the School of Sociology
      and Social Policy at Queen‟s University Belfast.

SOURCES OF EVIDENCE

2.    The Tribunal heard evidence from the claimant, Professor Hayton, Professor
      Hillyard, Doctor McElrath, Mr Tomlinson, Rosemary Carson and Jacqueline
      Andrews.

3.    The Tribunal also was referred to documents in an agreed bundle. As advised to the
      parties at the outset of the Hearing, the Tribunal only considered those documents
      in the bundle to which it was specifically referred.

THE FACTS


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4.   The claimant applied for the post of lecturer in the School of Sociology and Social
     Policy at QUB in and around April 2005.

     The essential criteria for short-listing for the post were the following:-

     1.   Primary or higher degree in sociology, social policy or cognate discipline.

     2.   The experience of teaching at University level or equivalent.

     3.   Evidence of ability to research and publish to a standard which will contribute
          to the school‟s highly ranked research profile.

     4.   Ability to contribute to under-graduate courses in criminology and related
          subjects.

     The desirable criteria for the post were as follows:-

     1.   PhD in a subject relevant to the study of harm, crime and/or criminal justice.

     2.   ILTHE membership (or equivalent).

     3.   Evidence of research interests and specialisms which will contribute to the
          school‟s research profile.

     4.   Evidence of research funding.

     5.   International contacts in specialist field.

     6.   Interest in criminology, criminal justice or related areas.

5.   The respondent established a selection panel comprising of Professor Hayton,
     Head of School of History and Anthropology as convenor, Mr Tomlinson, Head of
     the School of Sociology, Social Policy and Social Work, Dr McElrath, Reader in the
     School of Sociology, Social Policy and Social Work and Professor Hillyard, Chair of
     Sociology.

6.   A short-listing panel meeting was convened on 11 May 2005. At the panel meeting
     only the essential criteria were used to short-list candidates. Four candidates, two
     male and two female including the claimant, were short-listed for interview. The
     other female candidate withdrew before the interviews were held.

7.   The interviews were held on 24 and 25 May 2005. After the interviews were
     completed the unanimous selection of the panel for the post was Doctor Prideaux.
     He was offered the post but subsequently declined it. The post was then offered to
     the successful candidate, Mr Potter.

8.   The claimant was notified by letter dated 26 May 2005 that her application was
     unsuccessful.

9.   On subsequently learning who the successful candidate was the claimant applied
     for feedback on 12 September 2005.



                                             2
10.   The respondent replied by letter of 22 September 2005 stating –

            “The interview panel noted that you had extensive teaching experience in
            criminology and research experience with local publications. However, the
            panel noted that you had a limited number of peer reviewed publications and
            in comparison to the successful applicant there was less evidence of your
            ability to contribute to core subjects.”

      The claimant‟s comparator is Mr Potter the successful candidate.

The Interview Process

11.   Before the interview applicants were invited to submit their best work for review by
      the selection panel. The claimant sent The Hurt Inside: the imprisonment of
      women and girls in Northern Ireland. This work was co-authored by Professor
      Phil Scraton, Professor of Criminology at QUB. Professor Scraton was first named
      author and this holds particular significance in academic circles.

12.   The successful candidate sent Urban Crop Circles: urban cannabis growers‟ in
      the North of England which again was a co-authored publication with S Dann.

13.   Both applicants were invited to comment on their role or contribution to the work.
      The claimant indicated the extent of her involvement in the project but
      acknowledged that Professor Scraton was first named on the report. The
      successful candidate indicated he was principal author of the piece with his co-
      author essentially being a key informant.

14.   Prior to the interviews being conducted a list of questions was agreed by the
      selection panel and the identity of the individual panel members who would ask
      those questions.

      One of the questions asked in relation to teaching was –

            “What contribution could you make to methods teaching?”

15.   The claimant in evidence stated that she was not asked a question on teaching
      research methods. She recalled a question regarding the strengths of qualitative
      research and felt that of all the questions this was the one she answered most
      weakly. The claimant then conceded that it was possible that her recollection was
      wrong and that she may have answered a different question to the one asked.
      However, the members of the panel each gave clear unequivocal evidence that the
      question was asked by Mr Tomlinson and that a follow-up question on qualitative
      research was then asked.

16.   Having considered the evidence the Tribunal prefers the evidence of the panel
      members on this point and finds on the balance of probabilities that the question
      was asked by Mr Tomlinson.

THE RESPONDENT‟S RECRUITMENT POLICY




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17.   This policy sets out what was referred to at hearing as the 8 point plan for
      recruitment to academic posts. It sets out eight factors or criteria which are
      reflected on the interview rating forms used by the panel to mark the candidate. The
      eight factors are

      (a)    education and qualifications;

      (b)    relevant experience (which is subdivided into teaching, research/publications
             and management);

      (c)    presentation;

      (d)    intellectual ability;

      (e)    interests;

      (f)    disposition;

      (g)    motivation;

      (h)    special factors.

18.   In relation to the first two of these the 8 point plan states

             “in recruitment to academic posts these elements of the plan, ie
             education and experience are pivotal to the decision and should form
             the dominant element of the overall assessment of the candidate”.

19.   The policy requires panellists to read the university‟s code of practice and the Fair
      Employment Code of Practice. It confirms that interviewers should not compare
      candidates directly with each other under the 8 point plan and states;

             “the 8 point plan thus provides a bridge, linking assessments or
             judgements about candidates back to the job related factors identified
             in the planning stages of the cycle”.

20.   Each member of the panel makes an individual assessment of the candidate and
      awards an individual mark. The panel members should be guided by the expertise
      of the special curators in relation to the first two pivotal categories. Special curators
      are defined in the guidance as “subject experts/Dean”

THE MARKING SCHEME

21.   For academic posts a 5 grade division is used (A, B, C, D, E) ranging from excellent
      to very poor. This process does not involve a comparison between one candidate
      and another but rather between the candidate and the criteria. There was no
      weighting of each criteria against the other. At this stage of the process the panel
      did not have to consider the relative importance of one criteria over another in
      arriving at an alpha grade for an individual criterion. The alpha grade did not take
      into account that not all criteria would necessarily be treated equally in determining
      a candidate‟s overall suitability for the post. A listing of the total alpha grades




                                              4
      awarded to a candidate would not therefore necessarily show that the candidate is
      better than another with a different range of grades.

22.   The panel members were then required to arrive at an individual numerical mark for
      each candidate. In arriving at this mark the panel member considered the overall
      suitability of the candidate for appointment. Thus each candidate will have an
      individual mark from each panellist.

23.   Both these stages of the process were carried out immediately after the interview of
      the individual candidate and before the general panel discussion when all the
      interviews had been concluded. Again the candidates are not compared against
      each other.

24.   At the conclusion of this phase of the process Professor Hayton and Mr Tomlinson
      awarded a higher mark to Mr Potter, Professor Hillyard awarded a higher mark to
      the Claimant and Dr McElrath awarded each the same.

25.   The panel then had to rank the candidates in order of merit which was done at the
      conclusion of all the interviews when the rank order was determined and an agreed
      panel mark given for each candidate.

26.   It is common case that Dr Prideaux was the unanimous choice of the panel for first
      place. The panel discussion then centred on the marking and ranking of the
      claimant and Mr Potter. In this case both Mr Potter and the claimant were regarded
      as appointable. The successful candidate achieved an agreed panel mark of 77
      whilst the claimant obtained an agreed panel mark of 74.

27.   The agreed panel mark is not an arithmetical or mathematical average of the
      individual numerical panellists marks.

THE PANEL DISCUSSIONS

28.   At the panel discussion the panel focused on three issues –

      (a)   Both the actual and potential research contributions of the two candidates.

      (b)   Their ability to contribute to the teaching programme of the school; and

      (c)   the relative importance of research over teaching experience.

      These issues form part of the second of the “pivotal” factors identified by the eight
      point plan.

RESEARCH PROFILES

29.   In the UK, universities research is assessed at regular intervals under the Research
      Assessment Exercise (RAE). The current RAE exercise is the RAE for 2008. To
      participate in RAE universities are invited to submit their research work for
      assessment. Research is assessed at different quality levels and the Sociology
      School currently had a highly ranked research profile.




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30.   The RAE operates through a process of peer review by experts of high standing in
      the area being judged. Each member of staff submitting to RAE is required to
      submit four research outputs published during the RAE period. However, a special
      case is made for “early career researchers” and for those who had been absent
      from research for longer than six consecutive months within the assessment period
      who are only required to provide two research outputs.

31.   The Tribunal accepted that a strong performance in the RAE is one of the highest
      priorities for the respondent as high standing affects not just under-graduate and
      post-graduate recruitment but also facilitates research grant applications and
      funding generally.

32.   The claimant accepted the importance of the RAE exercise to the respondent.

      The successful applicant was defined by the panel as an early career researcher
      who would require fewer than the four outputs submitted by other researchers of
      longer standing.

33.   The panel did not take the view that the claimant would be included within the
      category of those who had been absent from research for longer than six
      consecutive months within the assessment period.

34.   The claimant at interview maintained both that her existing research work was of a
      sufficient RAE standard and in any event she would be in a position to produce a
      further four pieces of work before the RAE deadline.

EXISTING RESEARCH WORK

35.   At interview the claimant did not advise the panel that her previous career had been
      part-time and outside academia for family reasons. She did talk of a return to
      academia but was not specific as to what this meant nor did she address the panel
      on any dispensation she felt entitled to under the RAE. The claimant contended
      that as her CV showed that she was not in academia the panel should have
      regarded that as a career break. However, her CV showed an unbroken career and
      the claimant at no stage clarified for the interview panel that any part of her career
      was part-time work.

36.   The panel reviewed the research publications the claimant identified to them and
      took the view that these were not likely to be of a satisfactory or sufficient quality for
      them to be submitted by the respondent to the RAE.

37.   Mr Potter was regarded by the panel as an “early career researcher” and would
      therefore only require two pieces of research for the RAE. At the time of interview
      Mr Potter already had two pieces of what the panel regarded as high quality
      research one of which was a book chapter in a high quality collection and a second
      a peer reviewed article in a good quality journal. Whilst he was co-author of these
      he was listed as first author on both publications a matter which is indicative in
      academic circles of the contribution made to the particular piece of work.

ABILITY TO CONTRIBUTE TO TEACHING PROGRAMME

38.   The claimant had greater experience in terms of length of experience.



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39.   However the panel found that the claimant did not give them evidence of experience
      of teaching on research methods which would be an integral part of the course.
      The successful candidate however demonstrated that he had already taught on a
      range of courses including schools and methods training. The claimant had failed
      to answer appropriately the question posed on teaching research methods.

40.   The claimant also accepted that she gave no evidence of teaching in research
      methods in her application as she had forgotten to include it.

PANEL MARKING

41.   In providing alphabetical scores for the two pivotal areas of education and
      qualifications and relevant experience the panel awarded the successful candidate
      a B+ in education and qualifications and a B+ for relevant experience. The category
      of relevant experience was broken down into three sub-categories of teaching,
      research/publications and management and in each of these the panel awarded a
      B+ to the successful candidate. The claimant was awarded an A for education and
      qualifications and an overall B+ for relevant experience comprising of individual sub
      categories of A-, B and B+.

42.   The claimant was awarded a better alphabetical score for education and
      qualifications because she had already had obtained her PHD in a cognate
      discipline. The successful candidate was awarded a B+ because his primary
      degree was in criminology, he held a Masters degree and he informed the panel,
      and it accepted, that his PhD was almost complete and due for submission in late
      summer of that year.

43.   In relation to relevant experience the panel took into account in arriving at their
      alphabetical mark the experience of teaching and the ability to contribute to under-
      graduate courses, the ability to research and publish to a high standard, evidence of
      research funding and international contacts in a specialist field. In the latter two
      areas the panel found that the successful candidate had little if any relevant funding
      or contacts but also felt that whilst the claimant produced evidence of research
      funding and contacts the funding was not regarded as particularly relevant to
      research funding and that the international contacts were not in a sufficiently
      academic field. The panel also felt that the successful candidate was not expected
      to display much evidence of either research funding or international contacts in view
      of his early career status.

44.   The panel graded alphabetically against the other factors in the eight point plan.
      They then awarded their individual numerical mark.

45.   In her individual numerical mark Dr McElrath initially awarded the claimant “75-80”.
      She awarded the successful candidate “70-75” but then amended that to “75-80”.
      Subsequently Dr McElrath awarded the same numerical score of 77 to both
      applicants.

46.   In giving her evidence Dr McElrath indicated that she had not previously had
      experience of conducting interviews for the respondent although she had some
      experience in the United States. She had read the recruitment policy and received
      training six weeks before the interview. She gave evidence that she had difficulty



                                            7
      deciding at first on appropriate alphabetical scores as reflected on her interview
      rating form and she wanted further time to think. She also told the tribunal that
      whilst she had a good idea of the appropriate range for her numerical mark she had
      difficulty in settling on a mark. The tribunal has determined on the balance of
      probability that the amendment to the numerical mark and range given by Dr
      McElrath was made by her prior to the agreed panel mark being arrived at.

47.   The panel in this exercise did not follow all aspects of the respondent‟s policy for
      selection for academic posts. The panel reached consensus scores on the two
      pivotal areas of experience and qualifications. The policy guidance is for individual
      assessment guided by the experience of the special curators. However the tribunal
      accepted the evidence of Professor Hayton as a very experienced convenor that
      this system of marking was common to academic appointments at QUB and not
      unique to this competition.

48.   No personnel representative was present at the interview. Part of the personnel
      representative‟s function according to the policy is to ensure that records are
      complete and that the convenor‟s report is an accurate record of the proceedings.
      The tribunal accept that absence of a personnel representative was not a decision
      of this panel but of the Human Resources function and was essentially a resources
      issue. Personnel representatives did not attend any academic interviews in
      accordance with the policy.

49.   Whilst there is no note of the panel discussion, the convenor‟s summary report is a
      contemporaneous note setting out the issues considered by the panel and the
      reasons for their decision. It states -

            “At interview Prideaux was able to convince the panel that he fully met
            the criteria for the post. Potter demonstrated a strong potential for
            research and the capacity to contribute to courses in criminology and
            methods training, including at Masters level. He has less RAE output
            than Prideaux.       Moore has extensive teaching experience in
            criminology and research experience with local publications. However
            she has a limited number of peer reviewed publications, and there was
            less evidence of her ability to contribute to core courses”.

50.   Professor Hayton had not refreshed himself on the University‟s Code of Practice or
      on the Fair Employment Code of Practice specifically for this recruitment exercise.

51.   Each of the panel members, with the exception of Dr McElrath had experience and
      knowledge of recruitment and selection procedures. All had received training in
      Equal Opportunities and Selection Interviewing.

52.   Professor Hillyard had not received training in the QUB Recruitment Policy but had
      read it prior to this recruitment exercise. He had extensive training in recruitment
      and selection in previous positions.

53.   Dr McElrath had no experience in this jurisdiction of recruitment exercises but had
      experience in the United States. She had received recent training on the QUB
      Recruitment Policy and read both the Recruitment Policy and the Fair Employment
      Code of Practice in preparation for this recruitment exercise.




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OTHER FACTS FOUND

54.   During the course of the hearing a post-it note was discovered by the respondent to
      the claimant which had written on it the number K473B and also the words “G Potter
      RC” and “L Moore not appointed P”.

55.   The tribunal heard evidence from Miss Carson the solicitor for the respondent who
      told the tribunal that the post-it in question was created after the claim of the
      claimant was intimated to the respondent. It was made in response to a request by
      Miss Carson to the Equal Opportunities Unit of the respondent to check if there was
      a difference in religion between the claimant and her comparator. Miss Carson was
      not able to identify the individual who had actually written the post-it.

56.   The tribunal has accepted the evidence of Miss Carson in this regard and find that
      the post-it was created after this recruitment exercise and during the respondent‟s
      preparation for these tribunal proceedings.

57.   The claimant made the case in her evidence that she was of no religion and was a
      socialist by political affiliation. She stated however that her perceived religious
      identity is Protestant. She also contended that some members of the panel would
      have been aware that her partner was Professor Henry Patterson a professor of
      politics at the University of Ulster who although not a member of any political party
      has been perceived as adopting a unionist perspective. The claimant felt that panel
      members would be aware of her partner‟s work and his perceived political
      perspective through his public profile, academic publications and career. The
      claimant also contended that the published work of some panel members would
      suggest that they held views unsympathetic to unionism.

58.   The respondent in convening the panel took steps to assure itself of a reasonable
      balance amongst the perceived religious affiliations of the panel members. It
      convened a panel which according to its records was composed of a Protestant, a
      Roman Catholic and two non determined status.

59.   Professor Hayton was perceived by the respondent to be non-determined in his
      religious affiliation. He described himself as an Englishman who was Roman
      Catholic. He had no previous knowledge of the claimant, her religion or her
      relationship with Professor Patterson. He was not aware at the time of the interview
      that the successful candidate, Garfield Potter also English was a Roman Catholic.

60.   Mr Tomlinson was perceived by the respondent as a Protestant but described
      himself to be an Englishman of Protestant background whose father was a Church
      of England Minister. He was now non-determined in his religious affiliation. He
      knew of Professor Patterson and had read some of his early work in the 1970s. He
      regarded Professor Patterson as a Marxist at that time and had no idea of his views
      now. Mr Tomlinson felt that Professor Patterson‟s work in the 1970s was in fact
      critical of unionism. He did not associate Professor Patterson with the claimant. He
      had no perception of the religious belief or political opinion of the claimant at the
      time of the recruitment process.

61.   Professor Hillyard was perceived by the respondent as non-determined and he
      described himself as non-determined although he assumed the University would
      have perceived him as a Protestant. He did know both the claimant and Professor



                                            9
      Patterson and he was aware of the claimant‟s political views. He had carried out a
      book review of Professor Patterson many years before and viewed him as a Marxist
      political theorist/historian. Professor Patterson was then critical of the Northern
      Ireland state. Professor Hillyard did not know at the time of interview that Garfield
      Potter was a Roman Catholic.

62.   Dr McElrath was perceived by the respondent as a Roman Catholic. Dr McElrath is
      from the United States and does not attend worship nor is she affiliated with any
      church. She did not know the religious belief or political opinion of the claimant,
      Professor Patterson or Mr Potter. She did not know Professor Patterson or his
      work, nor of his relationship with the claimant.

63.   The comments of the claimant regarding the published work of some of the panel
      members was not put to any of the panel members.

64.   The Tribunal considered that the evidence given by the members of the interview
      panel was cogent and credible in relation to their background, their views on
      religious belief and their approach to issues of discrimination based on sex,
      religious belief or political opinion. The Tribunal accepts on the balance of
      probabilities the evidence given by the interview panellists of their religious belief
      and their knowledge of both the claimant and Professor Patterson. The Tribunal
      also accepts that neither Professor Hayton nor Professor Hillyard were aware that
      the successful candidate Garfield Potter was a Roman Catholic and received no
      evidence to indicate that Mr Tomlinson or Dr McElrath had any awareness either.

THE LAW

65.   The claimant brings claims of sex discrimination under Article 3(1) of the Sex
      Discrimination (Northern Ireland) Order 1976 and discrimination on the grounds of
      her religious belief or political opinion under Article 3(2) of the Fair Employment and
      Treatment (Northern Ireland) Order 1998.

66.   Each provide in similar terms that a person discriminates against another person by
      reason of sex or by reason of religious belief or political opinion if on any of those
      grounds he treats that other person less favourably than he treats or would treat
      other persons. The other person with whom the comparison is sought must be
      such that the relevant circumstances in the one case are the same or not materially
      different than the other.

67.   The legislation covering sex and religious belief and political opinion contain in
      similar terms a direction that if the tribunal finds facts from which it could, in the
      absence of an adequate explanation, hold that the respondent has committed an
      act of discrimination against the claimant then the tribunal should uphold the
      complaint unless the respondent proves that he did not commit the act of
      discrimination or is not to be treated as having committed that act. Thus in such a
      situation the burden of proof passes to the respondent to show that he has not
      committed any act of discrimination. Guidance on the application of these
      regulations has been given by the Court of Appeal in Igen Ltd -v- Wong [2005]
      IRLR 258 which guidance has been endorsed and applied in a number of cases
      and most notably in the Court of Appeal in the case of Madarassy -v- Nomura
      International Plc [2007] EWCA Civ 33.




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68.   Igen contains guidelines issued by the Court of Appeal which set out a two stage
      process in cases where direct discrimination is alleged as in the present case. First
      the claimant has to prove facts from which the tribunal could conclude there has
      been unlawful discrimination. Once that is done the burden of proof shifts to the
      respondent who has to show that he did not commit unlawful discrimination. The
      respondent has to prove, on the balance of probabilities, that the treatment was in
      no sense whatsoever on any of the protected grounds.

      Igen sets out a 13 point guidance. The first four points in the guidance are as
      follows:-

            “1.    Pursuant to Section 63A of the Sex Discrimination 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
                   respondent 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 Sex Discrimination 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.”

69.   In Madarassy the Court of Appeal again considered the burden of proof point. It
      considered the two stage test and Lord Justice Mummery at paragraph 56 said

            “the court in Igen -v- Wong expressly rejected the argument that it was
            sufficient for the complainant simply to prove facts from which the
            tribunal could conclude that the respondent “could have” committed an
            unlawful act of discrimination. The bare facts of a difference in status
            and difference in treatment only indicate a possibility of discrimination.
            They are not, without more, sufficient material from which a tribunal
            “could conclude” that, on the balance of probabilities, the respondent
            had committed an unlawful act of discrimination.”

      Lord Justice Mummery went on to say at paragraph 57

            “”Could conclude” in Section 63A(2) must mean that “a reasonable
            tribunal could properly conclude” from all the evidence before it. This



                                            11
            would include evidence adduced by the complainant in support of the
            allegations of sex discrimination, such as evidence of a difference in
            status, a difference in treatment and the reason for the differential
            treatment. It would also include evidence adduced by the respondent
            contesting the complaint.”

      Lord Justice Mummery then said at paragraph 71 and 72

            “Section 63A(2) does not expressly or impliedly prevent the tribunal at
            the first stage from hearing, accepting or drawing inferences from
            evidence adduced by the respondent disputing and rebutting the
            complainant‟s evidence of discrimination. The respondent may adduce
            evidence at the first stage to show that the acts which are alleged to be
            discriminatory never happened; or that, if they did, they were not less
            favourable treatment of the complainant; or that the comparators
            chosen by the complainant or the situations with which comparisons
            are made are not truly like the complainant or the situation of the
            complainant; or that, even if there has been less favourable treatment
            of the complainant, it was not on the ground of her sex or pregnancy.

            Such evidence from the respondent could, if accepted by the tribunal,
            be relevant as showing that, contrary to the complainant‟s allegations
            of discrimination, there is nothing in the evidence from which the
            tribunal could properly infer a prima facia case of discrimination on the
            proscribed ground.””

CONCLUSIONS FROM FACTS FOUND

70.   Having considered the law, as set out above, the tribunal firstly considered whether
      or not in relation to any of the protected grounds the burden of proof should transfer
      to the respondent.

71.   The tribunal is satisfied that in this case the burden of proof does not shift to the
      respondent. On the facts as found the tribunal cannot conclude in the absence of
      an adequate explanation from the respondent that the respondent has committed
      an unlawful act of discrimination against the claimant.

72.   Only Professor Hillyard had any knowledge or perception of the claimant‟s religious
      belief or political opinion. However, there was no evidence to suggest that this
      knowledge played any part in his decision and indeed Professor Hillyard was the
      only panellist who gave the claimant his individual mark higher than his mark for Mr
      Potter.

73.   Only Professor Hillyard and Mr Tomlinson had any knowledge of Professor
      Patterson and the Tribunal accepted their evidence that they were aware of his
      work in the 1970s and not any more recent work, and did not perceive his views at
      that time as Unionist.

74.   No evidence was heard on the political opinions of the panellists or that they would
      perceive themselves or be perceived as unsympathetic to Unionism.




                                            12
75.   There was no evidence to suggest that any of the panellists had any knowledge or
      perception that the successful candidate was Roman Catholic.                He is an
      Englishman and exhibited none of the „pointers‟ that often are used in
      Northern Ireland to ascribe a political or religious view to an individual. It was not
      suggested to any of the panel members that they either had or would have reason
      to believe that Mr Potter was a Roman Catholic.

76.   Similarly, the claimant produced no evidence to persuade the Tribunal that the
      panel‟s actions were tainted by discrimination on the grounds of gender. She never
      advised the panel that her career was not a full-time career and gave no
      explanations to assist the panel on the perceived lack of output since obtaining her
      PhD.

77.   Doctor McElrath was clearly confused in applying individual marks to the
      candidates. She had received training in recruitment selection but had no
      experience in this jurisdiction. The Tribunal did not draw an inference from Doctor
      McElrath‟s marking difficulties. The Tribunal determined that Dr McElrath had
      difficulty in making quick decisions about each candidate and struggled with the
      marking procedure she was asked to follow. There was however no evidence of
      those difficulties being tainted with discrimination on any of the statutory grounds
      claimed.

78.   It is clear that the panel did not follow the codes of practice in all respects. They
      did, however, follow an established process. They did not refuse the attendance of
      a Personnel Officer. The absence was as a result of a general decision on all
      academic recruitment exercises based on resources issues. The panel did not
      change the process particularly for this exercise.

79.   The panellists were all trained in recruitment selection and in the codes of practice
      and the convenor, Professor Hayton was very experienced.

80.   An inference may be drawn by the Tribunal for a failure to follow relevant codes of
      practice. However the Tribunal is satisfied on the facts of this case that such an
      inference should not be drawn.

81.   The Tribunal determine that it was reasonable for the panel to accept Mr Potter‟s
      assertion that his PhD would be completed within months. They had no reason to
      doubt this and they were aware that he had already published from his PhD work.

82.   Although the claimant scored marginally better in one of the pivotal areas of
      qualifications and overall better in the alphabetical grades awarded by the individual
      panel members the tribunal accepts that these marks were not made to rank the
      candidates against each other. The tribunal also determines that in the group
      discussion to rank the candidates and provide an overall agreed mark it was proper
      and reasonable that some criteria would weigh more heavily than others.

83.   The Tribunal finds that the claimant was given limited credit for her research funding
      experience and in international contacts. It also finds that it was reasonable for the
      panel to view the claimant‟s experience against the length of time she had been
      working, and to make allowance for the early career status of Mr Potter.




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84.   The Tribunal finds that it was not unreasonable for the panel to have concentrated
      on the ability to contribute to the RAE and on teaching experience in their group
      discussion in their attempts to rank the candidates.

85.   The panel members provided clear reasons for their decision to award the marks
      they did.

86.   It is not for the Tribunal to usurp the function of the interview panel or to substitute
      its own criteria or assessments for those of the interviewers (see Johansson v
      Fountain Street Community Development Association (2007) NICA 15).

87.   It is the Tribunal‟s view that the recruitment exercise in this case was unduly
      complex and cumbersome. It was difficult to follow the defined procedure. The
      Tribunal finds that it is not surprising that the claimant, when she saw the interview
      rating forms with their complex relationship between alphabetical marks, individual
      numerical marks and agreed panel numerical marks, would have concern as to how
      they interrelate. However the Tribunal is satisfied that the panel, on the basis of the
      information they then had, had properly applied the marks in assessing whether any
      of the candidates were appointable and then to rank them.

88.   The Tribunal is also conscious that the decision made between the claimant and the
      successful candidate was a narrow one and a difficult decision for the panel to
      reach. However on the facts the Tribunal does not conclude that the claimant was
      less favourably treated on the grounds of sex, religious belief or political opinion and
      the claimant has failed to raise facts from which the Tribunal could properly draw
      inferences sufficient to transfer the burden of proof.

89.   Even if the Tribunal is wrong not to shift the burden of proof to the respondent, the
      Tribunal would nevertheless have concluded that the respondent have provided an
      explanation for the choice of Mr Potter that is not tainted with discrimination.

      As Elias P said in Laing v Manchester City Council [2006] ICR 1519 at
      Paragraph 75:-

             “The focus of the Tribunal‟s analysis must at all times be the question
             whether or not they can properly and fairly infer race discrimination. If
             they are satisfied that the reason given by the employer is a genuine
             one and does not disclose either conscious or unconscious racial
             discrimination, then that is the end of the matter. It is not improper for
             a Tribunal to say, in effect, „there is a nice question as to whether or not
             the burden has shifted, but we are satisfied here that, even if it has, the
             employer has given a fully adequate explanation as to why he behaved
             as he did and it has nothing to do with race‟.”




90.   The unanimous decision of the Tribunal therefore is that the claimant was not
      unlawfully discriminated against on the grounds of sex, religious belief or political
      opinion.




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Chairman:


Date and place of hearing:     21-25 May 2007, 20-22 & 28 June 2007, 9-10 August
                               2007, Belfast.


Date decision recorded in register and issued to parties:




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