Worthingtons Commercial Solicitors in Belfast have agreed to write an email every two months exclusively for Legal-Island email subscribers. These emails cover what, in the opinion of the writers, are the recent Northern Ireland employment cases that will most interest employment law practitioners.

Today's email concerns the case of Dr Charles Richard Alan Lennon v The Department for Regional Development (Case Ref 75/11 FET)

The Claimant was supported by the Equality Commission when he brought a claim alleging that he was subjected to less favourable treatment on the grounds of his religious belief and/or political opinion contrary to the provisions of the Fair Employment and Treatment (Northern Ireland) Order 1998 as a result of the failure of the DRD to appoint him to the position of Chair of Northern Ireland Water. The appointment to the post was by way of advertisement and interview.

At interview all candidates must satisfy the panel that they adequately meet the essential criteria. The DRD Minister will then take the final decision on appointments.

The interview panel was held on 9 and 10 March 2011 for the appointment of the Chair of Northern Ireland Water. Seven candidates were interviewed and five were deemed suitable for appointment. The candidates comprised one Catholic and four Protestants, one of whom was the Claimant.

The Tribunal found that in the course of the interview process each candidate, including the Claimant, was advised that the Minister would receive an unranked list of those candidates the panel considered suitable for appointment. The submission that went to the Minister comprised an unranked list of appointable applicants, together with supporting information including pen pictures of each candidate which reflected information provided in the application forms and in the summaries of the panel's views. The competencies of each candidate were highlighted together with the experience each could bring to the role of Chair of Northern Ireland Water.

On Monday 14 March 2011 there were discussions at a weekly “stock take” meeting and there were issues raised that the successful candidate, Mr Sean Hogan (the only Catholic to be deemed appointable) had availability issues if appointed to the post of Chair of Northern Ireland Water. It was the Claimant’s position that he was the superior candidate compared to the successful candidate, given that he claimed to have superior experience. It was confirmed in correspondence from the Departmental Solicitors to the Equality Commission in November 2011 that the Minister consulted with a special advisor and other executive colleagues prior to making his decision on the appointment.

The Tribunal accepted that the Minister informed his special advisor on Monday morning 21 March 2011 that Mr Sean Hogan appeared to him to be the most suitable candidate for the post. He then finally decided to appoint Mr Sean Hogan after discussing the matter with two Sinn Fein Ministers, Ms Gildernew (the Agriculture Minister) and Ms Ruane (the Education Minister) who were familiar with Mr Sean Hogan as he had held the post of Chair Designate of ESA from September 2011 and was Chair of AFBI.

The Tribunal accepted in evidence that the Minister had appointed nine Roman Catholics and seven Protestants during his time in ministerial office. However, having carefully considered the evidence on the statistical information, together with each parties’ submissions, the Tribunal found that for a four year period between 2007 and 2011, when the Minister was in charge of DRD, there was a significant disparity between the success rate of Protestant applicants and Catholic applicants within DRD, and that a Catholic applicant was at least twice as likely to be appointed than a Protestant applicant.

Furthermore, the Tribunal was satisfied that there was a material bias against the appointment of candidates from a Protestant background within DRD. It raised concern that Mr McKibben, as Permanent Secretary within the DRD at the material time, (and is currently Head of the Northern Ireland Civil Service) was not more aware of the situation.

The Minister in giving witness evidence maintained that he appointed Mr Sean Hogan on merit and that he did not know whether the five recommended candidates were Protestant or Catholic. He further asserted under cross-examination that he did not know what the religious backgrounds were of Ronnie Spence, Jim Stewart and the Claimant were, having just denied knowing Sean Hogan’s religious background.

In the reality of the political and religious environment in Northern Ireland, the Tribunal found that the Minister’s evidence in this point is implausible and lacked credibility. The Tribunal was satisfied that the Minister’s request for an unranked list in the circumstances of this case helped to facilitate his appointment of Sean Hogan as Chair of Northern Ireland Water.

The Tribunal was left in considerable doubt as to whether the merit principle was adhered to him in relation to the process for the appointment of the Chair of Northern Ireland Water and whether Mr Sean Hogan was the best candidate for the post. The Tribunal could not find evidence and stated that there was a “paucity of evidence for the Tribunal in relation to the Claimant’s allegations of discrimination on the grounds of political opinion.”

The Tribunal carefully considered DRD’s explanation for the treatment of the Claimant. In doing so it took into account that merit is a matter for the Minister and at the material time the code did not require him to record reasons for his decision. However, the Tribunal was satisfied, having weighed its findings of fact on the credibility issues attaching to the evidence of the Minister and Mr Sean Hogan, in the context of its other findings of fact (which include findings relating to a breach of the code and the procedures by the Minister in adding further essential criteria to the established criteria in order to secure the appointment of Mr Sean Hogan, a Catholic to the post of the Chair of Northern Ireland Water), that the DRD had not provided an adequate non-discriminatory explanation for the less favourable treatment of the Claimant. In these circumstances an inference of discrimination must be drawn against DRD on the grounds of religious belief, being one of the reasons for the less favourable treatment, a significant reason in the sense of being more than trivial.

The Tribunal found that there had been a breach of the Commissioner for Public Appointments for Northern Ireland’s Code of Ministerial Public Appointments by the Minister of Regional Development at the time, Mr Conor Murphy.

A key aspect of the decision was the requirement for sufficient degree of transparency and accountability in the process to assure people that selection is based on merit and that if unlawful discrimination occurs it can be challenged. The Tribunal will reconvene at a later date to consider compensation.

===============================================
The main content of this email was provided by Maxine Orr of Worthingtons Commercial Solicitors in Belfast. Maxine works exclusively in employment law and should anyone have any queries she may be contacted on 028 90 434015. Maxine is an accredited mediator.

Website:
http://bit.ly/9NE0Ia

Maxine will be speaking at this year's Annual reviews of Employment Law in November. See below for details.

===============================================
Legal-Island
9 October 2012


Legal-Island's 2012 Programme of Events is sponsored by Carecall NI. Carecall is a leading provider of employee support services - Counselling, People Management and Development, Conflict Resolution, Change Management, Outplacement and Career Transition Services:
http://bit.ly/r0epY0