The claimant claimed that direct discrimination had occurred as a result of the failure to appoint him to the position of classroom assistant, in favour of a female candidate. The claim was one of direct discrimination pursuant to Article 3(2) (a) of the Sex Discrimination Order 1976. Central to the claimant’s case was the contention that he did not meet the post requirements and criteria and his fundamental contention was very clearly that he ought to have been appointed in preference to the successful (female) candidate who was appointed.

The two matters considered by the tribunal were:

1. Did the claimant’s application form and interview performance demonstrate that he was a more suitable candidate for appointment than the successful candidate? And;

2. Was the claimant assessed as less suitable for appointment than the successful candidate on the ground of his sex?

The claims were dismissed. In this case there was an obvious comparator, the successful female candidate. In finding that the difference in treatment suffered by the claimant had nothing to do with his sex, the tribunal approved the ruling in Nelson v Newry and Mourne District Council [2009] NICA 24, which decided that if the treatment accorded is genuine and does not disclose either conscious or unconscious unlawful discrimination that is the end of the matter. The tribunal’s proper focus must be upon the question of whether or not unlawful discrimination may properly be inferred, and on assessment of the facts this was not the case. In coming to this conclusion the tribunal held that the method of assessment utilised was properly formulated. In negatively answering the first of the matters to be considered, the tribunal placed emphasis on the claimant’s performance at interview and his ‘lack of comprehension of and insight into the role of classroom assistant.’ In conclusion, it was ‘entirely improbable on the facts’ that the difference in treatment was due to the claimant’s sex.

Practical lessons from this decision: The decision of the tribunal is a vindication of an employer who has adopted a clear, structured form of candidate assessment. The respondent was able to demonstrate that far from being an arbitrary selection process, the interviewers were guided by the content of a model answer sheet incorporating both the questions which were required to be put to the candidates and also suggested answers or information designed to be elicited from the candidates.

The clear record from the interview notes indicated how each candidate’s responses ‘constituted an essential factor’ in their scoring. The tribunal accepted that a certain aspect of subjectivity is involved in such selection procedures, but employers will be afforded greater protection when they can show that subjective views of interviewers are based on pre-determined criteria specific to the post.