Applicants had 40 minutes to complete and then present their answer to the Selection Committee.

Transcription

1 This case study is adapted from the original and was used in December 2008 when NIJAC was recruiting a Chairman of the Industrial Tribunals and Fair Employment Tribunal. Applicants had 40 minutes to complete and then present their answer to the Selection Committee. Instructions to Applicant Pages 2 to 8 of this booklet contain a case study. You are required to read the case study and then prepare a written decision to the question which is outlined and highlighted in bold at the top of page 2. Lined paper is provided for your written decision. Please request additional paper if required. The time allocated for this task is 45 minutes. Within this time you are required to read the case study and to prepare a written decision to the question. You are required to manage your own time. You must stop working when the staff member advises. Stationery including paper, pens, and highlighters will be provided. All mobile phones must be switched off and left with the staff member invigilating in the room. You are not permitted to use any reference materials except those contained in this booklet. No access to an electronic copy is permitted. Please note, all materials will be collected before you leave the room. The Selection Committee will assess the written decision as part of the selection process. Assessment of the Case Study against the Knowledge, Skills and Attributes framework (KSA Framework) In the Applicant Information Booklet the Knowledge, Skills and Attributes Framework is explained. This case study is intended to assess: Communication (written) Analysis and Making Decisions Knowledge Requirements Leadership and Management

2 CASE STUDY You are asked to read and consider the following case study. Question: You are asked to decide whether the burden of proof would transfer to the respondent and to set out the reasons for your decision on that sole issue. The claimant, a Protestant, applied unsuccessfully for the position of Personal Injury Claims Team Leader with a fairly large local Insurance Company, the respondent. 3 applicants, A, B and C were appointed. The claimant alleges unlawful discrimination on the ground of religious belief and compares himself with C who is a Catholic. The respondent s defence is that the claimant and C were marked incorrectly due to a genuine mistake on the part of an inexperienced member of the selection panel. Having heard the evidence of the claimant and the selection panel members, you have found the following facts proved on a balance of probabilities. 1. The respondent advertised for 3 Team Leaders in its Personal Injury Claims Department offering an annual salary of 25,000 together with Health Insurance and a pension plan. 2. The selection criteria were: (1) Qualifications A minimum of a HND in an Insurance Related subject. (2) Experience (3) Skills A minimum of 3 years experience handling insurance claims to include at least one year handling personal injury claims. (i) (ii) excellent communication, interpersonal and negotiating skills; and ability to lead, manage and develop a team of up to 10 Personal Injury Claims Handlers to ensure the effective and efficient resolution of Personal Injury Insurance Claims. 3. The community backgrounds of the respondent s workforce were:- Protestant 54% Catholic 42% 2

3 Other 4% 4. There were 14 applicants for the 3 positions. Their community backgrounds were:- Protestant 6 (43% of the applicants) Catholic 7 (50% of the applicants) Others 1 (7% of the applicants) This information was not provided to the selection panel. 5. The selection panel was made up of 3 Managers who were originally: (a) (b) (c) the Personal Injury Claims Manager who was male and Protestant; the Property Claims Manager who was male and Catholic; and the Human Resources Manager who was female and Protestant. All 3 had received training on the respondent s selection procedures and equality of opportunity. 6. Once these selection panel members were informed that there were 14 applicants for 3 positions and before the applicants identities were made known to them, they decided to interview all of them without shortlisting. They decided to assess Qualifications and Experience on the basis of the information provided on the application forms, as verified at interview, and to award a maximum of 10 marks for each. They decided to assess Skills on the answers to questions asked at interview and to award a maximum of 30 marks for it. They also decided that unless an applicant received at least 5 marks for qualifications and at least 5 marks for experience, he/she could not be appointed regardless of his/her overall mark. 7. The Human Resources Manager was admitted to hospital on the day before the interviews were due to start and had to be replaced. The only other female manager was on maternity leave. The respondent replaced the Human Resources Manager with the Customer Services Manager who was male and Protestant. He was the least busy of the remaining Managers. He had been appointed 6 months earlier and unlike the other Managers had not yet received training on the respondent s selection procedures or equality of opportunity. 8. When the Customer Services Manager met with the other 2 Managers he told them that he was very apprehensive and nervous because he had very little experience of personal injury claims, had never conducted an interview before and because he had not yet received any training. The other 2 Managers suggested that he should mark Qualifications and Experience only and that they would assess and mark Skills. They told him that it was important to mark accurately and consistently. The Customer Services Manager agreed that this would be the best way to proceed. 3

4 9. Following the completion of all the interviews the 3 highest scoring candidates: 2 Protestants (66% of the applicants); and 1 Catholic (33% of the applicants) were appointed. The claimant was in fourth place. The scores of the top 4 applicants are set out below. Applicant Qualifications Experience Skills Total A (Protestant) B (Protestant) C (Catholic) claimant (Protestant) The claimant served a Statutory Questionnaire on the respondent in which he asked the respondent to explain its marking system for all 3 criteria. In reply, the respondent provided the following information. Qualifications (a) HND in an Insurance related subject 5 marks (b) HND in Insurance or Degree in an Insurance related subject 7 marks (c) Degree in Insurance 10 marks (d) If an applicant did not have a minimum of a HND in an Insurance related subject No marks Experience (a) (b) (c) (d) 3 years experience in Insurance claims Including at least 1 year in Personal Injury Claims 3-5 years experience in Insurance claims including at least 1 year in Personal Injury Claims More than 5 years experience in Insurance Claims including at least 1 year in Personal Injury claims If an applicant had less than 3 years experience in Insurance including at least 5 marks 7 marks 10 marks 4

5 1 year s experience in personal Injury claims No marks Skills 2 questions were asked with a maximum of 15 marks for each answer 30 marks 11. The claimant did not dispute any of the marks awarded to any applicant apart from his own mark for Qualifications and C s mark for Qualifications. 12. The claimant had a HND in Insurance and was awarded 5 marks. He was entitled to 7 marks. C had a Degree in an Insurance related subject and was awarded 10 marks. He was entitled to 7 marks. 13. If the claimant and C had been marked correctly in respect of Qualifications, C s total score would have been 38 (not 41) and the claimant s total score would have been 39 (not 37) and the claimant would have been placed ahead of C. 14. The highest scoring applicant, A, who was a Protestant, had a Degree in an Insurance related subject and was awarded 10 marks. He was entitled to 7 marks. This would have reduced his score to Another candidate D, who was a Catholic, had a Degree in Insurance and was awarded 7 marks when he was entitled to 10 marks. 16. The Customer Services Manager was able to identify the community backgrounds of the applicants from their names. The law 17. Article 3 of the Fair Employment and Treatment (Northern Ireland) Order 1998 provides that a person discriminates against another person on the grounds of religious belief or political opinion in any circumstances relevant for the purposes of this Order if:- (a) on either of those grounds he treats that other less favourably than he treats or would treat other persons; Article 3 provides that a comparison of the cases of persons of different religious belief or political opinion must be such that the relevant circumstances in the one case are the same, or not materially different, in the other. Article 19 of the Fair Employment and Treatment (Northern Ireland Order 1998 provides that: It is unlawful for an employer to discriminate against a person, in relation to employment in Northern Ireland, - 5

6 (a) where that person is seeking employment (i) (ii) (iii).... by refusing or deliberately omitting to offer that person employment for which he applies. The Burden of Proof 18. Article 38A of the Fair Employment and Treatment (Northern Ireland) Order provides that:- Where, on the hearing of a complaint, 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) (b) has committed an act of discrimination against the complainant which is unlawful by virtue of Part III; or is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination against the complaint; 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. Guidance on the Burden of Proof 19. Guidance on the application of the Burden of Proof has been given by the Court of Appeal in Barton v Investec Henderson Crosthwaite Securities Ltd and Igen Ltd v Wong [2005] IRLR 258. In Igen Ltd v Wong [2005] IRLR 258 the Court of Appeal ruled that the guidance issued by the EAT in Barton v Investec Henderson Crosthwaite Securities Ltd should be applied in amended form as follows:- (1) Pursuant to Section 63A of the 1975 Act, it is for the claimant who complains of [sex] discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant which is unlawful by virtue of Part 2, or which, by virtue of Section 41 or Section 42 of the 1975 Act, is to be treated as 6

7 having been committed against the claimant. These are referred to below as such facts. (2) If the claimant does not prove such facts he or she will fail. (3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that he or she would not have fitted in. (4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal. (5) It is important to note the word could in Section 63A(2). At this stage the Tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a Tribunal is looking at the primary facts before it to see what inferences of secondary facts could be drawn from them. (6) In considering what inferences or conclusions can be drawn from the primary facts, the Tribunal must assume that there is no adequate explanation for those facts. (7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with Section 74(2)(b) of the 1975 Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within Section 74(2) of the 1975 Act. (8) Likewise, the Tribunal must decide whether any provision of any relevant Code of Practice is relevant and, if so, take it into account in determining such facts pursuant to Section 56A(1) of the 1975 Act. This means that inferences may also be drawn from any failure to comply with any relevant Code of Practice. (9) Where the claimant has proved facts from which conclusions could be drawn that the employer has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the employer. (10) It is then for the employer to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act. 7

8 (11) To discharge that burden it is necessary for the employer to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since no discrimination whatsoever is compatible with the Burden of Proof Directive. (12) That requires a Tribunal to assess not merely whether the employer has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question. (13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a Tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or Code of Practice. 20. It is clear from the decisions of Madarassy v Nomur International PLC [2007] EUCA Civ, Laing v Manchester City Council [2006] IRLR 748 and Mohmed v West Coast Trains Limited [2006] UKEAT that in deciding whether a claimant had proved facts from which the Tribunal could conclude in the absence of an adequate explanation that discrimination had occurred, the Tribunal must consider evidence adduced by both the claimant and the respondent. Fair Employment in Northern Ireland: Code of Practice 21. Paragraph of the Fair Employment Code of Practice states that employers are strongly recommended to:-.. ensure that those making the selection: - are clearly informed of the relevant selection criteria and the need for their fair and consistent application; and - have been given guidance and training on sound selection procedure; ensure, if at all possible, that all shortlisting, interviewing and selection panels comprise two or more people. 8