Louis O’Neill

Armagh City, Banbridge and Craigavon Borough Council

Claimant successful in demonstrating sex discrimination when his seconded role was removed and he went back to his substantive role on less favourable terms.

The claimant started work with the old Armagh City and District Council in 2006 as a Neighbourhood Renewal Coordinator. Following the creation of the ‘Super Council’ there was a review of all fixed term contracts. The claimant, in 2018, applied for the position of Interim Programme Manager but was unsuccessful. He was though offered and accepted the position of Corporate Planning Manager.  The claimant contended this was permanent as it was a legacy post from the old council but the respondent stated it was temporary. The permanent role did become available as it was vacated by the holder of the role. The claimant’s contract at this point was renewed until July 2022 when he was told that the role would be coming to an end and he would move back to his substantive post.  It was contended that this substantive post was permanent and in 2012 he had been informed that the employment was established as permanent and he would be managed in the same way as other permanent employees. 

Due to the lack of renewal of the seconded position the claimant appealed and cited that there was a disproportionate amount of females and his perception was that he was treated differently because of his sex.  The claimant raised a number of concerns regarding different treatment such as failing to offer the role, failing to inform the claimant that his earlier role would become his substantive role, failing to hold exit strategy meetings which had been afforded to two female employees, the allocation of duties to two other female colleagues when the role was dismantled and failing to create a new role for the claimant despite the fact that another role had been created for a female colleague.

At the outset of the conclusions the Tribunal noted the sense of grievance the claimant had when he was made to revert to his substantive post on less generous terms after many years in the seconded position. This then related to the different treatment being outlined by the claimant. The Tribunal found that the respondent’s evidence on the points was confusing and difficult to collate. The Tribunal had to look at the actual comparators noted (the two females noted above in the background) as well as the hypothetical comparator. They found, on balance, that the hypothetical comparator would have been more favourably treated than the claimant. There was no evidence from the respondent that the other comparators, even if the roles were slightly different, were moved to a less favourable position as had happened with the claimant. The Tribunal finding that the hypothetical female comparator would have received more favourable treatment in line with the actual comparators outlined. The burden, as a result, shifted to the respondent and they were unable to provide a non-discriminatory explanation.  As a result, the claimant was successful in his sex discrimination claim.

The remedy is still be decided in this case but the judgment here provides a useful examination of actual and hypothetical comparators and how they can be used to examine the allegations made by the claimant. The Tribunal here finding that based upon how the actual comparators were treated if the hypothetical female comparator was in place they would have received more favourable treatment. With no non-discriminatory reason being properly offered by the respondent this led to success.

NI Tribunal decisions are available on the OITFET website:
https://www.employmenttribunalsni.co.uk/