THE INDUSTRIAL TRIBUNALS

CASE REF:	708/08

CLAIMANT:			Mohamed Saad

RESPONDENT:		Queen’s University Belfast 

DECISION
The unanimous decision of the tribunal is that the claimant was not unlawfully discriminated against by the respondent on racial grounds.  The claimant’s claim is therefore dismissed.

Constitution of Tribunal:
Chairman:		Mr N Drennan QC
Members:		Mr J Kinnear
			Mr D Copeland

Appearances:
The claimant appeared in person and was not represented.
The respondent was represented by Ms S Walkingshaw, Barrister-at-Law, instructed by L’Estrange & Brett, Solicitors.

Reasons

1.	The claimant presented to the tribunal on 9 May 2008 a claim form in which he claimed he had been discriminated against on racial grounds, pursuant to the Race Relations (Northern Ireland) Order 1997 (‘the 1997 Order’) arising out of his failure to be short listed for interview in relation to his application for the post of Teaching Fellow (Work-based Learning) in the School of Education at Queen’s University Belfast (‘the University’).  There was no dispute that the claimant’s claim was a claim of direct discrimination under the 1997 Order.  The respondent presented to the tribunal on 17 June 2008 a response form, in which it denied liability; and, in particular, stated that the reason for the failure of the claimant to be short listed for the said post was because the claimant had not satisfied the criterion relating to experience, as defined by the short listing panel.

2.1	The tribunal made the following findings of fact, insofar as relevant and material, after hearing evidence from the claimant himself and the members of the short listing panel, namely:-

Professor Anthony Gallagher (Professor in the School of Education and also Head of the said school);

Mrs Elda Nikolou-Walker (Senior Teaching Fellow in the said school); and

Mr Paul Nolan (Director of Education with responsibility for undergraduate programmes in the said school).

2.2	The claimant is Egyptian and on 29 January 2008 he made an application for the post of Teaching Fellow (Work-based Learning) in the School of Education at the University.  The post had been advertised on-line on the University website but also in the Belfast Telegraph in the following terms:-

“Applications are invited for the above position tenable from 1 April 2008 to teach at undergraduate and post-graduate level to contribute to the school’s administrative/outreach activity by managing and developing Work Based and work related programmes of study.”

The claimant decided to make an application for the post.  He contacted the University and received a document setting out the job details, to which further reference will be set out below, together with a summary sheet which he was required to complete and return to the University with his curriculum vitae.  

2.3	The job details document set out, inter alia, the various duties of the post but, in particular, the essential and desirable criteria for appointment to the said post.

2.4	In relation to the essential and desirable criteria the job details document set out 15 essential and 5 desirable criteria.  However, for the purposes of short listing, the short listing panel decided to carry out short listing on the basis of the first five essential criteria, namely:-

(1)	undergraduate degree;

(2)	Ac3 level – undergraduate degree and postgraduate degree;

(3)	a minimum of one year’s teaching experience in Further or Higher Education;

(4)	experience of designing modules and assessment methods; and

(5)	experience of contributing to Work-based learning programmes.

For the purpose of this decision, it was only necessary for the tribunal to have regard to the said 5th criterion referred to above.

2.5	The said job details document, in referring to the application process, stated as follows:-

“The Summary Sheet should be completed and returned with your curriculum vitae  … 

… In customising your application details to our vacant post you should read the job details and criteria.  You must demonstrate clearly and unambiguously how your experience and research background meets the requirements of the post.  This should include a statement of published work and research in progress … .”

2.6	The claimant completed the summary sheet, dated 29 January 2008, and enclosed with it a covering letter, curriculum vitae, a research statement and a teaching statement and strategy.  There were 27 applications received for the post.     Twenty-five Equal Opportunities forms were returned to the University.  The claimant maintained that he filled in such a form; but the University stated no such form was received from him.  In the event, there was no dispute that the claimant was Egyptian and this was known to the members of the short listing panel.  

Of the 25 monitoring forms received, 23 were from applicants whose nationality was stated by the University on a form set out in a reply to the claimant dated 14 May 2008 to be either ‘Northern Ireland’ or the ‘Republic of Ireland’ or ‘England’; there was one applicant whose nationality was stated by the University on the said form to be Indian and one applicant whose nationality was stated to be Zimbabwean.  Following the short listing process, a total of six applicants were short listed.  Neither the claimant, nor the Indian applicant or the Zimbabwean applicant were short listed.

2.7	The short listing panel consisted of:-

Professor Anthony Gallagher, who was the chair of the panel; 

Mrs Elda Nikolou-Walker; and

Mr Paul Nolan.

Mrs Nikolou-Walker is from Greece and came to work at the University approximately nine years ago.  The short listing panel met on 8 February 2008 to consider which of the applicants for the post should be short listed.  The representative at the meeting from the Personnel Department of the University was:-

		Ms Linda Bowen

Ms Bowen is presently unwell and at the date of the hearing was absent from work and was unable to give oral evidence to the tribunal.  However, the tribunal was satisfied, from the evidence given by Professor Gallagher that the short listing form was filled in by her during the meeting; and also signed by her, and by Professor Gallagher, as the chair of the panel, at the conclusion of the meeting.  

2.8	Prior to the short listing meeting, the panel members were sent by the Personnel Department, copies of each applicants’ summary sheet, curriculum vitae and attached documentation, together with a blank short listing form, for their use, in relation to the short listing exercise; as well as a copy of the job duties document, job description and the employee’s specification.  The employee’s specification set out the same criteria, essential and desirable, as seen in the job details document; but broke down the said criteria under the headings ‘education and qualifications’, ‘experience/management’, ‘administration and contribution to the community’.

Under the heading ‘experience’, there was included the criterion ‘experience of contributing to Work-based learning programmes’ (ie the 5th criterion referred to above in the said job details document).

2.9	Prior to the meeting on 8 February 2008, Professor Gallagher considered the said applications of each applicant for the post and noted, inter alia, on the short listing form provided by the Personnel Department, the five essential criteria referred to above.  He also noted on the form his initial view whether or not he considered each of the candidates had satisfied the said essential criteria and whether, in light of same, which of the applicants should or should not be short listed for the said post.  

In relation to the claimant, he noted, in his preliminary consideration, prior to the short listing meeting, under the column headed ‘exp/teach/res/essential’, ‘No WBL no modules’ and also marked an ‘x’ under the column headed ‘Shortlist No’.  He did not write anything under the column headed ‘Comments.  Please record reason(s) for non-short listing’.  He confirmed in evidence that, if he had altered his preliminary view in the course of the short listing meeting, he would have made any relevant alterations to the said form.  In relation to the claimant he did not require to do so, as he did not alter his view at the meeting from the view which he had initially made in his preliminary consideration prior to the meeting, as set out above.  

2.10	Mrs Nikolou-Walker, prior to the meeting, considered all the application forms and ‘formed in her head’ preliminary views on whether any of the applicants might or might not be short listed; but did not write anything on the short listing form until the meeting.  At the meeting, she made various ticks/lines, as she considered appropriate, in relation to whether each candidate should be short listed or not.  Prior to the meeting, she ‘formed in her head’ the preliminary view the claimant should not be short listed because he did not have the required experience of   Work-based learning.  At the meeting, in relation to the claimant, she made a line under the column ‘exp/teach/res/essential’ and made a line under the column headed ‘Shortlist No’.  To be short listed the claimant would have required to have been given a tick on the form by her.  Her line, under the said columns, confirmed her preliminary view, which she had ‘formed in her head’, prior to the meeting that the claimant should not be short listed as he did not have the required experience of Work-based learning.

2.11	Mr Nolan, prior to the meeting, considered the applications of all the applicants and noted on the form his preliminary view in relation to whether or not an applicant should be short listed.  In relation to the claimant he marked an ‘x’ under the column headed ‘Shortlist, No’; and in the column headed ‘Comments, Please record reason(s) for non-short listing he noted “no WBL exp”’.  He stated in evidence that if, during the course of the meeting, arising out of any discussion he considered it was necessary to alter his preliminary view, as noted on the form, he changed what he had previously written.  The tribunal found that he had done so in relation to one candidate.  However, in relation to the claimant, the tribunal was satisfied that he did not change his preliminary view in relation to the claimant, as noted above.  

2.12	The tribunal was concerned with this difference of approach by each of the members of the panel, prior to the meeting and, in particular, in circumstances where there had been no agreement between them, prior to the meeting, in relation to which criteria were to be used for the purposes of short listing and/or where there had been no agreement, where appropriate, between them in relation to the meaning of any criteria to be relied upon.  In the event, as seen later in this decision, this different approach by the panel members was not relevant to the tribunal’s decision in this matter; but clearly, in other circumstances it might have been.

The tribunal was also concerned that the members of the panel had a somewhat casual attitude to the column headed ‘Comments, Please record reason(s) for      non-short listing’.  

In the case of some applicants, from other entries made on the form, it was readily apparent what was the reason for the non-short listing by the members of the short listing panel.  However, in forms where no express reason for non-short listing had been made by the member of the short listing panel and it could not be identified from other entries, if any, on the form, then the tribunal considered it has to be good practice for panel members of a short listing panel to make clear on the short listing form, filled in by them, why any specific applicant for a post has not been short listed.  Indeed the tribunal had particular concern, when it was suggested in evidence by Mrs Nikolou-Walker, that the guidance to panel members by the University is that they are not required to state the reason, on the said form, for not short listing a particular candidate.  Again, in the event, as seen later in this decision, the failure of Mrs Nikolou-Walker to state her specific reason for the    non-short listing of the claimant anywhere on her short listing form was not relevant to the tribunal’s decision in this matter.

2.13	The tribunal was satisfied, having heard the evidence of the members of the short listing panel, at the commencement of the panel meeting, the panel agreed that the criteria to be used for the short listing should be the first five criteria set out in the essential criteria on the job details, as referred to above, including, in particular, for the purposes of this decision, criterion (5) ‘experience in contributing to Work-based learning programmes’.

Whilst the tribunal could understand that the members of an experienced trained short listing panel, as these were, in advance of the meeting, could have probably assumed that these would be the essential criteria upon which short listing would be determined, this can never be taken for granted and emphasises, in the judgment of the tribunal, the dangers of reaching preliminary views and, in particular, noting any preliminary views, on the short listing form, in advance of the short listing meeting.  In addition, the tribunal was satisfied that, at the initial discussion of the panel, there was an agreement reached by the members of the panel, in relation to what was meant by the criteria of ‘experience of contributing to Work-based learning programmes’.  In particular, the tribunal was satisfied that the members of the panel agreed, as recorded by Ms Bowen in her short listing form, that what was required to be shown by each applicant for the post was ‘experience of converting professional practice to academic credentials’.

2.14	The tribunal, having heard the evidence of each member of the short listing panel, accepted that this agreement, in relation to what was required to be shown under this criterion, was the view each had taken prior to the meeting; and when reaching their preliminary views, in advance of the meeting, as noted by Professor Gallagher and Mr Nolan on their forms, as set out above, and as formed by                          Mrs Nikolou-Walker ‘in her head’.  Again, the tribunal was of the opinion that, before any views are taken by members of a short listing panel, whether preliminary or not, there should first be agreement between them in relation to the criteria; particularly in circumstances where there had required to be an agreement by the short listing panel of what was required to be shown in relation to the fifth criterion, as set out above, and which had not been set out in the job details for the post sent to the applicants by the University to assist them in preparing their application.  

2.15	The tribunal could understand the frustration of the claimant and his feeling of unfairness that the job details had not set out, in express terms, in relation to the fifth criterion, what was agreed by the short listing panel; and, in particular, that he had been unaware, when sending in his application, that it was to be assessed on whether he could show, in his application, that he had experience of converting professional practice to academic credentials.

2.16	The tribunal noted that there are many definitions of what is meant by Work-based learning, which is a ‘new’ type of learning being offered by the respondent.  It became apparent to the tribunal, during the course of the hearing, that the claimant’s definition was not the same as that of the short listing panel and as used by them in the School of Education.  Indeed, the claimant’s definition of Work-based learning was of a much more general nature.  

2.17	In replies to questions, raised by the claimant, the respondent’s representatives in a letter dated 19 December 2008, stated that the said fifth criterion, as defined by the short listing panel, in the short listing exercise, as set out above, was not a ‘new’ definition but rather a more precise definition.  The tribunal accepted that this more precise definition, as set out above, and used by the short listing panel in the short listing exercise, was consistent with the definition, as used by the School of Education, in relation to Work-based learning programmes which it ran in the University.  The tribunal, whilst accepting it is recognised there are many definitions of Work-based learning to be found amongst different academics and/or educational institutions, concluded that it would have been better if this more precise definition had been expressly referred to as appropriate in the job details, especially where applicants were asked to customise their applications, having regard to the criteria set out in the job details.  Indeed, with the benefit of hindsight, it might well have avoided this claimant’s claim before this tribunal.

However, significantly, it was accepted, in evidence, by the claimant, that, other than in relation to himself, the short listing panel had applied this criterion, using the more precise definition, to all the applicants for the post, including those who were short listed.

Ultimately, it was a matter for the judgment of the short listing panel to determine the criteria to be applied for the short listing exercise and how the said criteria is to be interpreted/defined.  It was not for the tribunal to interfere with their judgment, provided that, in doing so, the short listing panel did not treat the claimant less favourably than one of the short listed candidates and further, as he had claimed, on the grounds of his race.

2.18	Having heard the evidence of the three members of the short listing panel, the tribunal was satisfied that this more precise definition, which was applied by the panel, was in accordance with the way that Work-based learning was operated and understood in the School of Education in a distinctive set of programmes offered by the School.  Work-based learning, as operated and understood in the University, is designed for people with experience of employment who are engaged in part-time study and is focused on the experience they have gained in the workplace.  The key focus on Work Based learning is on learning and to give the participant academic credentials but also greater insight into the learning they would have obtained in the course of their work in the workplace.  Those teaching such courses were therefore required to have expertise in this process of learning, it was experience of this type of learning, which was required to be shown, namely converting professional practice to academic credentials.  The programmes are designed to provide people with experience of employment the opportunity to enable them to gain academic credentials.  It is for this reason that Work-based learning is in the School of Education and not in other schools of the University.  

Examples were given of Work-based programmes arranged by the School of Education in the University for specific organisations/occupational groups.  It was apparent to the tribunal that Work-based learning, as operated and understood in the School of Education, was very different to the old-fashioned ‘sandwich courses’ and/or apprenticeships which have operated in the workplace in the past.  Equally, it was to be contrasted with situations where a member of the University would transfer his/her specialist knowledge into a workplace outside the University.  In order to satisfy the said criterion as defined, it was not sufficient for an applicant to merely show, on the application, he/she had engaged in traditional teaching methods or provided specialist knowledge transfer, as indicated above.  It was different from, for example, a training course arranged for teachers in relation to a particular aspect of their curriculum.  It was also not the same as mentorship and/or work placement.

2.19	The tribunal could readily accept that the members of the short listing panel had some difficulty in considering the claimant’s application form/covering letter/curriculum vitae to ascertain whether or not he should be short listed for the post.  In the opinion of the tribunal, he did not, as he was required to do, as set out in the job details, try to customise his application in light of the specific criteria; and it was therefore necessary for the short listing panel to consider the full contents of the application to see whether or not there was evidence contained therein, albeit not specifically addressed, which satisfied the said criteria, as defined by the short listing panel.  The tribunal was satisfied that each of the members of the short listing panel did carry out this exercise in order to see whether there was any such evidence which satisfied the said criteria.  There was no dispute that all the members of the short listing panel found the claimant’s qualifications and experience, as set out in his application form, very impressive.  Indeed, the tribunal has no doubt each member of the panel considered very carefully, despite the absence of customisation, all the matters referred to by the claimant in his application.  

Unfortunately, for the claimant, the short listing panel did not find, which evidence the tribunal accepts, the experience he had set out in his application form in relation to experience of Work-based learning was experience of Work-based learning, as defined by the panel.  In essence, the panel found the claimant had shown, in his application, that he had engaged in traditional teaching methods, provided specialist knowledge transfer from academic into the workplace, and engaged in mentorship and/or work placement, both in Egypt and Northern Ireland; but he had not shown that he had the type of experience, which came within the definition relied upon by the short listing panel.  The tribunal had some sympathy for the claimant, in view of the general wording of the criteria in the job details document, and was prepared to accept that, in a different University or organisation, the claimant’s experience might have satisfied such a general criterion of ‘experience of contributing to Work-based learning programmes’.  Unfortunately, the experience of the claimant did not, the tribunal accepted, satisfy the definition as applied by the short listing panel.  Undoubtedly the claimant, as acknowledged by the panel, had considerable experience, both in Egypt and Northern Ireland, of traditional academic teaching, research activity and indeed of specialist knowledge transfer from academia into the workplace, (for example, his work with AVX, Coleraine, as KPT Postdoc Research Associate); but unfortunately, he was not able to show experience of converting professional practice into academic credentials, which was required by this short listing panel in its assessment of the said criterion, as defined by it.

2.20	The tribunal was satisfied that, not only did the short listing panel apply this criterion, as defined above, to all the other candidates for the post but it also applied it, as defined to the claimant.  Having applied this criterion to the claimant, the claimant’s experience, as set out in the claimant’s application, did not satisfy the said criterion, as defined by the panel.  In the circumstances, he was therefore not entitled to be short listed.  

2.21	There was no other evidence adduced to the tribunal, other than that the short listed candidates were of a different race to the claimant, to show the reason for the claimant’s failure to be short listed was because of his race.

Further, Ms Bowen confirmed, in the short listing form, signed by her, that the reason for not short listing the claimant was the absence of Work-based learning experience, as defined.  She also confirmed this in subsequent correspondence to the claimant, dated 18 March 2008, when he had sought reasons for his failure to be short listed.  In her said letter, she not only referred to his failure, in his application, to provide evidence to satisfy the criterion of experience of contributing Work-based learning programmes, but she also explained that the panel had defined the said criterion to be experience of converting professional practice to academic credentials.

3.1	A claim of unlawful discrimination on the grounds of race was brought by the claimant, pursuant to the 1997 Order.  

3.2	Under Article 3 of the 1997 Order it is provided:-

(1)	A person discriminates against another in any circumstances relevant for the purposes of any provision of this Order if –

(a)	On racial grounds he treats that other less favourably than he treats or would treat other persons.
		
		…

(3)	A comparison of a case of a person in a particular group with that of a person not of that group under Paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

3.3	Under Article 6 of the 1997 Order, it is provided:-

(1)	It is unlawful for a person, in relation to employment by him at an establishment in Northern Ireland to discriminate against another –

(a)	in the arrangements he makes for the purposes of determining who should be offered that employment;

…

3.4	In Article 5 of the 1997 Order, racial grounds is defined as follows:-

“Racial grounds means any of the following grounds, namely colour, race, nationality or ethnic or national origins.”

3.5	Regulation 40 of the Race Relations Order (Amendment) Regulations (Northern Ireland) 2003, amended Article 52 of the 1997 Order by inserting Article 52A in relation to the burden of proof applicable to these proceedings:-

“Article 52A

… where on the hearing of the complaint under Article 52, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent –

(a)	has committed such an act of discrimination against the complainant;

(b)	is by virtue of Article 32 or 33 to be treated as having committed such an act of discrimination against the complainant;

the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed that act.”

3.6	The English Court of Appeal, in the case of Igen  v  Wong [2005] IRLR 258 considered the provisions equivalent to Article 52A of the 1997 Order, in the sex discrimination case, and approved, with minor amendment, the guidelines set out in the earlier decision of Barton  v  Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332.  In a number of decisions the Northern Ireland Court of Appeal has approved the decision of Igen  v  Wong in the said two-stage process.

In the case of Bridget McDonnell & Others  v  Samuel Thom T/A The Royal Hotel, Dungannon [2007] NICA 3, the Court of Appeal, in referring to the said   two-stage stated:-

“ … the first stage required the complainant to prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination against the complainant.  The second stage (which only came into effect if the claimant had proved those facts) required the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, the complaint is not to be upheld … .”

The Court of Appeal, in the above decision, also confirmed that the amended Barton Guidance, as to the correct approach to be taken to the incidences of the burden of proof, apply to a case of unlawful discrimination pursuant to the 1997 Order, as well as to other forms of unlawful discrimination.

The decision in Igen  v  Wong has been the subject of a number of further decisions, including Madarassy  v  Nomura International PLC [2007] IRLR 246, a decision of the Court of Appeal in England and Wales, and Laing  v  Manchester City Council [2006] IRLR 748, both of which decisions were expressly approved by the Northern Ireland in the case of Arthur  v  Northern Ireland Housing Executive and SHL (UK) Ltd [2007] NICA 25.

In Madarassy, the Court of Appeal held, inter alia, that:-

“The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment.  Those bare facts 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 ‘could conclude’ in Section 63A(2) must mean that ‘a reasonable tribunal could properly conclude’ from all the evidence before it.  This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential in treatment.  It would also include evidence adduced by the respondent contesting the complaint.

Subject only to the statutory ‘absence of an adequate explanation’ at this stage the tribunal needs to consider all the evidence relevant to the discrimination claim, such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied upon by the claimant to prove less favourable treatment, evidence as to whether the comparison being made by the claimant were of like with like as required by Section 5(3), and available evidence of the reasons for the differential treatment.  The correct legal position was made plain by the guidance in Igen  v  Wong … .”

Although Section 63A(2) involves a two-stage analysis of the evidence, it 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 claimant’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 claimant; or that the comparators chosen by the claimant or the situations with which comparators are made are not truly like the claimant or the situation of the claimant; or that, if there has been less favourable treatment of the claimant, it was not on the ground of her sex or pregnancy.  Such evidence from the respondent could, if accepted by tribunal, be relevant to showing that, contrary to the claimant’s allegations of discrimination, there is nothing in the evidence from which the tribunal could properly infer a prima facie case of discrimination on the prescribed ground.

The approach of Elias J in Laing  v  Manchester City Council will be approved … .”

In Laing  v  Manchester City Council [2006] IRLR 748, which was approved by Campbell LJ in the Arthur case, Elias J said in relation to the two-stage:-

“71	There seems to be much confusion created by the decision in Igen  v  Wong [2005] ICR 931.  What must be borne in mind by a tribunal faced with a race claim is that ultimately the issues whether or not the employer has committed an act of race discrimination.  The shifting of the burden of proof simply recognises that there are problems of proof facing an employee which will be very difficult to overcome if the employee had at all stages to satisfy the tribunal on the balance of probabilities that certain treatment had been by reason of race …

73	No doubt in most cases it would be sensible for a tribunal to formally analysis a case by reference to the two stages.  But it is not obligatory on them formally to go through each step in each case …

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 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 nice questions to whether or not the burden has shifted, but we are satisfied here that even if it has an employer has given a fully adequate explanation as to why he behaved as he did and has nothing to do with race’.”

	(See further Brown  v  London Borough of Croydon [2007] IRLR 259.)

In the case of Network Rail Infrastructure Ltd  v  Griffiths-Henry [2006] IRLR 865, the Employment Appeal Tribunal held that:-

“A tribunal at the second stage is simply concerned with the reason why the employer had to do as he did.  The burden imposed on the employer will depend on the strength of the prima facie case …

It would be inappropriate to find discrimination simply because an explanation given by the employer for the difference in treatment is not one which the tribunal considers objectively to be justified or reasonable.  Unfairness is not in itself sufficient to establish discrimination.”

As Lord Nicholls observed in Shamoon  v  Chief Constable of the Royal Ulster Constabulary [2003] NI 174 at Paragraph 8 of his judgment:-

“Sometimes a less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue.  The two issues are intertwined.”

The above legal authorities have recently been approved in the course of the judgment of the Northern Ireland Court of Appeal in the case of Curley  v  Chief Constable of the Police Service of Northern Ireland & Another [2009] NICA 8.

4.1	In relation to the claimant’s claim of unlawful discrimination on race grounds, pursuant to the 1997 Order, the tribunal considered all the findings of fact made by it, as set out in Paragraph 2 of this decision and in light of the legal authorities referred to in Paragraph 3 of this decision.  

In accordance with the two-stage test, in the guidance set out in the case of Igen  v  Wong and the said legal authorities, it was, firstly, necessary for the tribunal to determine whether the claimant had established facts from which the tribunal could [tribunal’s emphasis] conclude, in the absence of an adequate explanation, that the respondent had committed an act of unlawful discrimination against the claimant on racial grounds.  In so doing, the tribunal was careful to note, at this stage, it was not by reason of the word ‘could’ required to reach a determination that such facts would lead to a finding of unlawful discrimination on racial grounds.

4.2	As was emphasised by Mummery LJ in the case of Madarassy (see Paragraph 3.6 of this decision) the burden of proof does not shift when there is established a difference of treatment between two persons of a different sex, or as applicable in this case, a difference on racial grounds.  The burden of proof does not shift on such bare facts, which only indicate a possibility of discrimination.  In addition, the tribunal noted, in this context, the judgment in the case of Network Rail Infrastructure Ltd  v  Griffiths-Henry [2006] IRLR 865 (see Paragraph 3.6 of this decision) where the Employment Appeal Tribunal emphasised that unfairness is not in itself sufficient to establish discrimination.  Although the tribunal could understand that the claimant felt he had been unfairly treated as the job details setting out the criteria had not set out, in relation to the fifth criterion, how it was going to be defined by the short listing panel; but this, in itself, was not sufficient to establish unlawful discrimination.

4.3	The tribunal found that the short listing panel had applied to all the applicants for the post, including the claimant, the said fifth criterion, namely experience of contributing to Work-based programmes.  Also the members of the panel had agreed to define the said criterion, which they applied to all the applicants for the post, to be experience of converting professional practice to academic credentials.  The tribunal found that the panel, in applying the said criterion, as defined by it, to all the applicants for the post, concluded that the claimant had not shown, in his application form that he had experience of converting professional practice to academic credentials.  Thus, the reason why he had not  been short listed was that he was found by the panel not to have the experience required by it in relation to the fifth criterion, as defined by it.

It is correct that all the short listed candidates were of a different race to the claimant, who is Egyptian, and further that as a consequence of the panel’s decision the claimant had not been short listed and he therefore did not have the opportunity, unlike the other short listed candidates, to be interviewed for the said post.  In essence, in light of the decision in Madarassy, the claimant merely established that there was a difference in race between himself and the short listed candidates; and a difference in treatment in that he had not been short listed.  Those bare facts only indicated a possibility of unlawful discrimination.  In this context, the tribunal also noted that one member of the panel, Mrs Elda        Nikolou-Walker, is from Greece, albeit she has been living and working in Northern Ireland for some years.  There was not therefore sufficient material from which the tribunal could conclude, on a balance of probabilities, that the respondent had committed an act of unlawful discrimination pursuant to the 1997 Order.  Even if the tribunal is wrong, and the burden of proof had passed to the respondent, the tribunal was satisfied that the respondent had shown the reason for the failure to shortlist the claimant was not by reason of race but because he had failed to satisfy the said criterion as defined by the short listing panel.  

4.4	The tribunal therefore concluded that the claimant was not unlawfully discriminated against on racial grounds by the respondent, pursuant to the 1997 Order.  The claimant’s claim is therefore dismissed.

Chairman:

Date and place of hearing:	9 – 13 March 2009, Belfast

Date decision recorded in register and issued to parties: