For­mer Sinn Fein MLA ‘victim of un­law­ful po­lit­i­cal dis­crim­i­na­tion’

Belfast Telegraph - Business Telegraph - - News - By­louisem­caloon, Employment part­ner Louise Mcaloon is a Part­ner in Wor­thing­tons Com­mer­cial So­lic­i­tors spe­cial­is­ing in employment law. She can be con­tacted on 028 9043 4015 or louise@wor­thing­ton­slaw.co.uk

The im­por­tance of a fair and merit-based re­cruit­ment process was high­lighted in a de­ci­sion re­cently is­sued by the Fair Employment Tri­bunal in North­ern Ire­land (CRN 65/17FET).

Award­ing compensation of £5,500 to for­mer Sinn Fein MLA Phil Flana­gan, the tri­bunal found that Mr Flana­gan had been un­law­fully dis­crim­i­nated against on grounds of his po­lit­i­cal opin­ion by Ci­ti­zens Ad­vice Ar­magh in re­la­tion to their fail­ure to ap­point him to the post of man­ager, de­spite be­ing the high­est scor­ing can­di­date in the re­cruit­ment process.

Mr Flana­gan was short­listed for in­ter­view along­side an­other can­di­date. The other can­di­date was an em­ployee of Ci­ti­zens Ad­vice Ar­magh who had been ful­fill­ing the role of tem­po­rary man­ager for a pe­riod of six months. It tran­spired through the course of the tri­bunal pro­ceed­ings that the other can­di­date did not meet the first short­list­ing cri­te­rion in that she had a de­gree but not a de­gree in man­age­ment or its equiv­a­lent, nor did she have the al­ter­na­tive five years rel­e­vant ex­pe­ri­ence.

Con­se­quently she should not have been short­listed for in­ter­view. The in­ter­view process com­prised a pre­sen­ta­tion and a for­mal in­ter­view. Each stage was marked sep­a­rately and each of the three pan­el­lists marked in­di­vid­u­ally with marks be­ing dis­closed and col­lated at the end of the process.

Fol­low­ing in­ter­view the other can­di­date was ap­pointed to the role, not­with­stand­ing that Mr Flana­gan had re­ceived the high­est ag­gre­gate mark­ings of the two can­di­dates in­ter­viewed. It emerged Mr Flana­gan had not been ap­pointed fol­low­ing a discussion af­ter the conclusion of the process, that discussion in­cluded a re­fer­ral to the re­gional of­fice and ap­par­ent in­volve­ment of an in­di­vid­ual who was a for­mer SDLP MLA and in the tri­bunal’s view, a po­lit­i­cal ri­val of Mr Flana­gan.

The tri­bunal was fiercely crit­i­cal of “the shift­ing and un­truth­ful ex­pla­na­tions” given by the re­spon­dent as to the rea­son why Mr Flana­gan had not been ap­pointed to the post from the ini­tial let­ter of re­jec­tion, the feed­back pro­vided when sought and in the re­sponse sub­mit­ted to the tri­bunal. De­spite scor­ing the high­est marks at in­ter­view, ex­pla­na­tions for re­jec­tion in­cluded “it was felt that your skills, knowl­edge and ex­pe­ri­ence were not as strong as the other can­di­date who has been of­fered the po­si­tion”, “you did not pro­vide suf­fi­cient ev­i­dence of how you would meet cus­tomer needs or com­plete day to day work based on cur­rent pri­or­i­ties and de­mands, in­clud­ing un­der­stand­ing of ser­vice de­liv­ery at a re­gional or wider level” and that the claimant was not ap­pointed “due to a pre­vi­ous employment is­sue”.

Fur­ther ex­pla­na­tions for the de­ci­sion not to ap­point Mr Flana­gan were ad­vanced dur­ing the course of the hear­ing in­clud­ing a fail­ure to prop­erly com­plete part of the ap­pli­ca­tion form, that he would have been less flex­i­ble and sym­pa­thetic than the suc­cess­ful can­di­date, and that he would have im­ple­mented change for change’s sake. None were ac­cepted by the tri­bunal.

The tri­bunal also re­jected ex­pla­na­tions from one mem­ber of the in­ter­view panel in re­la­tion to her scor­ing of the claimant’s an­swers at in­ter­view as “lack­ing gen­uine feel­ing”, “quot­ing an­swers as op­posed to feel­ing them”, “as if you were read­ing them out of a book”.

In its de­ci­sion, the tri­bunal noted that “this had not been a po­etry or drama com­pe­ti­tion, or an analysis of whether the can­di­dates had emoted suf­fi­ciently.

This had been a com­pe­tence-based in­ter­view de­signed to pro­duce an ob­jec­tive assess­ment of the can­di­dates”.

The tri­bunal recorded its concern that an in­ter­view panel mem­ber was pre­pared to de­part from the ob­jec­tive mark­ing reached by the panel and to al­low sub­jec­tive “feel­ings” about how the claimant would “fit in” to de­ter­mine the re­sult of the process.

The tri­bunal fur­ther noted ge­o­graph­i­cal lo­ca­tion or knowl­edge was not a com­pe­tence or a job re­quire­ment, an in­ter­view panel mem­ber hav­ing stated to the tri­bunal that the suc­cess­ful can­di­date knew the Ar­magh area, had lived there and knew the Ar­magh peo­ple and the Ar­magh of­fice.

The or­gan­i­sa­tion failed to re­ply to the statu­tory ques­tion­naire served by the claimant un­der the rel­e­vant leg­is­la­tion, a process through which an un­suc­cess- ful can­di­date is en­ti­tled to ask per­ti­nent ques­tions and seek fur­ther in­for­ma­tion in re­la­tion to a re­cruit­ment process, and the tri­bunal noted that it was en­ti­tled to draw an ad­verse in­fer­ence from that fail­ure.

The tri­bunal re­marked Mr Flana­gan had been rel­a­tively well-known as a Sinn Fein MLA and had been sub­ject to fre­quent me­dia cov­er­age and it was highly un­likely that any­one involved in the re­cruit­ment process would have been gen­uinely un­aware of his party af­fil­i­a­tion and there­fore his po­lit­i­cal opin­ion.

Upon con­sid­er­a­tion of the ev­i­dence, the tri­bunal re­jected as “sim­ply not cred­i­ble” the sub­mis­sion made on be­half of the re­spon­dent that it had made a mess of the in­ter­view process and that it had all been an in­no­cent and well-mean­ing ex­er­cise which had gone hor­ri­bly wrong.

The tri­bunal con­cluded that the re­spon­dent had not dis­charged the shift­ing bur­den of proof and had un­law­fully dis­crim­i­nated against the claimant on the grounds of his po­lit­i­cal opin­ion.

The tri­bunal rec­om­mended that the or­gan­i­sa­tion re­view their ap­point­ment pro­ce­dures, if nec­es­sary with the as­sis­tance of the Equal­ity Com­mis­sion, within six months of the date of this de­ci­sion.

Phil Flana­gan ap­plied to be man­ager of Ci­ti­zens Ad­vice in Ar­magh

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