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.

Highlights this time around are: a tribunal claim alleging age discrimination in the recruitment process and the use of 'anonomysed' CVs; and a Court of Appeal case involving the Certification Officer and union discipline.

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Jillian Gillespie v Price Waterhouse Coopers LL (1), Stuart McKeown (2), Karen Begg (3) and The Northern Ireland Transport Hold Company (4) Case Ref: 1102/10

Age Discrimination in Recruitment and the use of CVs.

This decision was issued in April 2011.

The Clamant was unrepresented and she brought her case to the Tribunal alleging that she was discriminated against on the grounds of her age arising from the Respondents failure to short list and appoint her to the post of ‘Head of Corporate Governance and Legal Services’ with the Northern Ireland Transport Holding Company (Translink) in January 2010. PwC were the professional services service which was retained by the Northern Ireland Transport Holding Company (Translink) in relation to the recruitment for this post. Mr Stuart McKeown and Ms Karen Begg were employed PwC LLP and were involved in the recruitment completion.

The application process was by way of tailored CV, whereby each candidate was to demonstrate how he or she met the requirements of the role. The Claimant criticised the requirement to provide a CV and alleged that the information in her CV was not put before the short listing panel, she also criticised that the advertisement use of the words ‘ambitious professional’ and ‘wants to make your mark’ and alleged that these were ageist or suggestive that a young person was sought in relation to the advert. The Tribunal found that the use of these phrases could not be regarded as being ageist or inviting younger people to apply as these words and phrases could legitimately be used in relation to any age group.

The Tribunal stated that there was no evidence before it that showed the use of a CV rather than an application form either assisted or hindered younger or older candidates. No advantage or disadvantage to any age group was obvious from the use of a CV.

An employee of Translink had sent an email which stated “to help and inform our decision or discussion this morning please find the updated ramblings of “aging father of five” and in a second email stated “disregard my first email, as I was clearly having a senior moment (Gordon has these all the time but won’t admit to it).” The Tribunal held that these comments were inappropriate but were innocently made and not indicative of an ageist gender.

At the short listing the Claimant was not short listed because the assessors were of the view that the Claimant had not satisfied eligibility for criterion 3.

The Tribunal went on to state that Respondents decision in relation to the Claimant’s eligibility under criterion 3 was one that they could legitimately make and that the reason that the Claimant had not been able to demonstrate “proven exposure of promoting principles of effective governance at senior management level” was neither irrational or capricious – there was no evidence of this in the Claimant’s CV.

The Tribunal stated the age of the successful candidate in his 30s of itself merely illustrated a difference in status. It does not indicate a ground for an action. The deficiencies in the recruitment process and the defending of this claim were not sufficient to establish age as being a factor in the decision not to short list the Claimant nor do they give rise to that suspicion. The Tribunal thought that the words “exposure to something” is a lesser test than “experience of something” but accepted that the explanation provided by the Respondent that the use of the word exposure was to avoid repeating the word “experience”.

The Claimant’s date of qualification (as a solicitor) was underlined and the Tribunal accepted that this was innocent. The Tribunal held that there was no age discrimination but went on to state that there were a number of aspects of the conduct or the recruitment completion and the defence of the claim which concerned the Tribunal and these included:

1. If the decision to anonymise an application form was taken then the anonymisation should be done by someone not involved in the short listing process. Here the leader of the short listing process received and opened all the CVs and had an opportunity to see all the details of every candidate.

2. All documents by assessors on which marks or comments are made during the short-listing process should be retained and not just some documents.

3. Discussion notes or minutes of discussions concerning particular candidates should record a brief explanation as to why an action was taken, particularly where that action departs from the written records.

4. The surprising denial of Karen Beggs involvement in the process in the first Respondent’s response prior to its amendment, particularly where documents with her signature on them had had the signature removed before they disclosed the comment that the Claimant. It is easy to understand how this would cause the Claimant to entertain the suspicion of something being quite right in the process.

5. The acceptance of a late application where the responsibility clearly rests with the candidate to ensure that the application is submitted before the closing date and time.

http://www.employmenttribunalsni.co.uk/

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Bell v Communication Workers Union (2011) Northern Ireland Court of Appeal decision issued on 4th April 2011

This was a case brought to the Court of Appeal by Mr David Bell appealing against the certification officer’s decision made on 31st August 2010 that the communication workers union had breached its own rules.

The case arises from events from 2007 where Mr Bell was the Secretary of the Clerical Branch of the CWU in Northern Ireland. He was also the Regional Assistant Secretary. He works for the CWU in representing members at Industrial and Fair Employment Tribunal and had been a member of the Union and its predecessor unions for over 34 years.

There were in reality 2 complaints before the Court of Appeal - one related to the action on 14th June 2007 of the general secretary of CWU, Mr Hayes, who wrote to Mr Beggs the General Secretary withdrawing the Claimant’s nomination for election to the executive Counsel for ICTU and his nomination to stand for election to the executive the ICTU which had been unanimously agreed by the CWU Northern Ireland. Mr Bell complained that the withdrawal by the general secretary without providing him with a explanation or seeking a democratic decision from the Northern Ireland regional committee was an act of discipline which imposed a disciplinary sanction and a severe detriment on him without invoking the Union rules and disciplinary procedures.

Secondly, he also complained that the general secretary had failed to deal with his complaint when he wrote to the secretary of the ICTU.

The Certification Officer refused to make a declaration in respect of any of Mr Bell’s complaints and this was appealed to the Court of Appeal.

The Court of Appeal stated that the withdrawal of Mr Bell’s name as a candidate in the ICTU election was not a disciplinary penalty as such and did not fall within the disciplinary rules. The certification officer had concluded that there was no intention to imposed penalties on Mr Bell for anything he had done at the conference. The intention was to prevent him from doing damage in the future to the reputation of the union by advocating with the ICTU a policy which was in conflict with the Union’s own policy.

As quoted by the Court – the Certification Officer stated: “Mr Bell’s views were clearly at odds with the Union’s policies on CWU Ireland and recruitment in the Republic of Ireland and the integrity and reputation of the Union would be at risk if he were given a platform within ICTU to push those views. This seems not an unreasonable fear since mixed messages about the Union’s views on these issues would risk causing harm to its standing generally and its relations with CWU in particular. Although I accept the withdrawal of his nomination subjected Mr Bell to a detriment (the significant part of which was in my view the loss of a good though not certain prospect of becoming a member of ICTU’s Executive Council), the evidence available is not such that I can conclude with reasonable probability that its motivation was a desire to discipline. I find that therefore it was not an intentional penalty imposed by the Union for deliberately disciplinary purpose.”

On the Second issue the Court of Appeal disagreed with the Certification Officer’s finding in relation to the failure by the general Secretary to refer Mr Bell’s complaint to the National Discipline Committee and made a declaration that Mr Hayes, the General Secretary, had breached rule 14.3.1 by not referring the contents of the letter to the National Discipline Committee.

As result the Court remitted this matter back to the Certification Officer to consider whether to make an enforcement order which the Court concluded should clearly be made.
http://www.bailii.org/nie/cases/NICA/2011/7.html

(Note: Legal-Island has a master class in dealing and negotiating with union representatives in Dublin on 9th June - Full programme and details:
http://bit.ly/hilWei)

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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

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Legal-Island
24 May 2011

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