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	Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Galbraith v Bombardier Aerospace [2005] NIFET 101_01 (22 March 2005) URL: http://www.bailii.org/nie/cases/NIFET/2005/101_01.html Cite as: [2005] NIFET 101_1, [2005] NIFET 101_01

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FAIR EMPLOYMENT TRIBUNAL

CASE REF: 101/01 FET

CLAIMANT: Laurence Galbraith

RESPONDENT: Bombardier Aerospace

DECISION

The unanimous decision of the Tribunal is that the claimant was not discriminated against by the respondent on the ground of his political opinion.

Appearances:

The claimant was represented by Mr J Bowers, of EIRS.

The respondent was represented by Ms N Murnaghan, Barrister-at-Law, instructed by Elliott Duffy Garrett, Solicitors.

1. The claimant, Mr Galbraith, alleged that the respondent company discriminated against him on the ground of his political opinion when it failed to shortlist him for a post in its Procurement Department in October 2000.

2.	(i)	At the outset of the hearing on 21 March 2005, an application was made on behalf of the claimant to amend his claim to include an allegation of discrimination on the ground of religious belief. It was based on the claim that Mr Galbraith had learned for the first time from the respondent's witnesses' statements that the criteria for short listing had been changed. This was not accepted by the respondent.
	(ii)	It was clear to the Tribunal that the claimant had always pleaded the case as one of political discrimination. His application to the Tribunal of 6 February 2001 had stated that he wished the Tribunal to consider a complaint of 'political discrimination'. In replies to a Notice for Further Particulars from the respondent, dated 27 June 2002, the claimant had replied, on 15 May 2003, when asked about discrimination on the ground of religious belief, that it was 'not applicable'. At a Hearing on Directions on 4 March 2005, less than three weeks before the substantive hearing he had confirmed that his case was one of political discrimination, and no new information had become available between that date and the date of hearing. In any event, the Tribunal, taking the claimant's allegation that the criteria for short listing had been changed at its height, does not consider that this is necessarily indicative of religious discrimination.
	(iii)	The Tribunal has had regard to the principles concerning amendment of applications laid down in Selkent Bus Company Ltd v Moore [1996] ICR 836. It is satisfied that what we are dealing with here is not putting a new label on an existing claim which is in time, but a wholly separate and substantive cause of action which is out of time. We do not consider that it would be just and equitable to extend the time for presenting a new complaint of discrimination on the ground of religious belief, having regard to the circumstances which we have outlined above, and also having balanced the hardship and injustice to both parties, and the prejudice which would be caused to the respondent. The respondent, at a very late stage of these proceedings, is being called upon to answer a case which has not previously been pleaded. This would lead to further costs which, in all probability, would not be recoverable. The claimant is, however, not precluded from continuing with the case he makes of political discrimination.
	(iv)	If we are wrong in our view that an allegation of religious discrimination is a new cause of action, we are nonetheless satisfied that an amendment would substantially change the basis of the existing claim, and having regard to the relative hardship and injustice involved, we would refuse it.
3.	(i)	In order to determine the complaint of discrimination on the ground of political opinion before it, the Tribunal heard evidence from Mr Galbraith, the claimant, and from Mr Frank Cammock and Mr Sean Scott on his behalf. Evidence for the respondent company was given by Ms Jo-Anne McVeigh, its Procurement Services Manager, and Ms Sandra Kelly, who at the relevant time was a Human Resources Adviser. The Tribunal also had regard to documentary evidence submitted by the parties.
	(ii)	It finds the facts set out in the following paragraphs proved to its satisfaction.
4.	(i)	The claimant, Mr Galbraith, is both a dedicated and prominent trade union activist. He belongs to the MSF Union and has been a member of its National Executive and both a National Vice-President and President. In his capacity as a trade union official he has vigorously supported MSF members in the respondent company who have been in dispute with its management.
	(ii)	The MSF Union was itself riven by internal dispute. Mr Galbraith was on its left-wing, which saw itself as the victim of an anti-left, anti-communist campaign by the union leadership. Mr Galbraith, in his witness statement, said that "[t]he union leadership was often perceived to be more sympathetic with the Shorts management than with the members. I agreed with this perception and in my official capacity made my views widely and publicly known".
	(iii)	There was no love lost between Shorts management and the section of the MSF with which Mr Galbraith was associated. On 17 April 1998, the Chairman of the company had written to the General Secretary of the MSF in London informing him that the company's relationship with the MSF (Staff) in Northern Ireland had broken down irretrievably, that the company was not prepared to work with them in the future, and seeking the General Secretary's personal involvement in creating what he called 'future harmonious relationships with MSF (Staff)".
	(iv)	It was against this background that the claimant applied for a position with the respondent company.
5.	(i)	The company's advertisement for Procurement Personnel appeared in the press in September 2000. The advertisement stated:-

"The applicants must:-

Ideally be qualified to HNC Standard in Business Studies or other relevant subject;

Have at least 2 years recent and demonstrated experience in a purchasing environment, preferably within a manufacturing environment."

	(ii)	The closing date for the posts was Friday 20 October 2000. The company received 132 applications in response to the advertisement. Mr Galbraith's application form, dated 29 September 2000, was received on 2 October 2000.
6.	(i)	Short listing was conducted on Monday 23 October 2000. It was a paper exercise, on the basis of the job application forms. It was carried out by Ms Jo-Anne McVeigh, Procurement Services Manager, and Sandra Kelly, a Human Resources Adviser. Some applications date-stamped 23 October 2000 were considered. We accept the respondent's explanation that these were applications received on Friday 20 October by security staff when administrative staff had left the premises, and then date-stamped 23 October 2000 on the Monday morning by the latter.
	(ii)	At the outset of the short listing meeting it was decided by Ms McVeigh and Ms Kelly that 'recent experience' in the advertisement was to be interpreted as recent experience in a purchasing environment since October 1997. They also agreed that experience was the major criterion in terms of short listing, and short listed only against that criterion, leaving other factors such as the HNC or equivalent requirement and experience in a manufacturing environment to be considered at a later stage.
	(iii)	At the short listing meeting, decisions were made jointly by Ms McVeigh and Ms Kelly, though the latter was guided by the former (who had the appropriate technical knowledge) when it came to considering whether applicants had the necessary experience.
	(iv)	The short listing panel came to the conclusion that Mr Galbraith did not meet the criterion which had been agreed. They considered that the majority of his experience from 1967 until the date of his application for the post had been as a draughtsman. Consequently he was not short listed, and appears to have been informed of this decision on 8 November 2000.
7.	(i)	The claimant's case is that he met the criteria for the post as laid down in the press advertisement in all respects, and that he was not appointed because of his political opinion (which was widely known). He further alleges that the criteria specified in the job advertisement were mandatory, and that they were reduced at the short listing stage to ensure that he was not appointed. The short listing panel, or to be more precise, Ms McVeigh, had been prevailed upon or 'got at' in some way by more senior management to ensure that he was not short listed.
	(ii)	Both Ms McVeigh and Ms Kelly gave evidence, which the Tribunal accepts, that prior to short listing neither of them had heard of Mr Galbraith, or was aware of his political activities. Each denies that she was influenced by anyone in the company or that pressure not to shortlist the claimant was brought to bear. The claimant's representative, Mr Bowers, very fairly accepted that Ms Kelly, who at the relevant time had only been with the company for a short period of time, was unlikely to have had any knowledge about the claimant.
	(iii)	Both Ms McVeigh and Ms Kelly were members of a trade union. Neither held any view opposed to trade unions or trade union activity.
	(iv)	The basis of the claimant's case is that senior managers in the company in effect gave Ms McVeigh a steer not to shortlist him. The basis on which such a case was presented to the Tribunal was highly speculative, and we find no evidence, or facts from which it can be inferred, that such was the case. Additionally, any suggestion that Ms McVeigh, merely by virtue of being a manager, must have known of the claimant and his activities and the fact that her superiors would not have wanted him as an employee, can be discounted when one considers that at the relevant time she was one of 500 managers in the company. She would not, of necessity, have had an awareness of the thinking of all those above her in the chain of management.
8.	(i)	The findings set out above are sufficient to dispose of the claimant's clam, having regard to the basis on which it was presented to the Tribunal. However, we are satisfied that in any event he did not meet the criterion on which short listing took place. Nothing was stated on his application form which indicated that he had the requisite buying experience; nor did he provide any additional information indicative of such experience.
	(ii)	We do not accept that there was anything improper about the way short listing took place. The shortlisters applied the core criterion for the position. We consider that that was an appropriate way to proceed, and that contrary to what has been claimed, it is common practice to proceed in such a manner, applying mandatory criterion at short listing and those considered desirable at interview.
	(iii)	The same criterion was applied to every applicant for the post and we find no evidence that the claimant was treated less favourably in the short listing exercise than any comparator relied upon by him. We find that Ms McVeigh and Ms Kelly conducted the short listing exercise with integrity, and nothing was done for the purpose of sifting out the claimant for any improper reason. We reject the claimant's suggestion that Ms McVeigh did not fully understand his experience or how it related to procurement.

2. At this stage, we also set out that we do not accept that any of the respondent's replies to the claimant's statutory questionnaire were evasive, and although there were some errors in the respondent's witnesses' statements of evidence, we do not find anything sinister about them, or attach any significance to them.
3. There are no facts from which the Tribunal can infer that the claimant was discriminated against on the ground of his political opinion. Consequently, we dismiss his claim.
4. We are further of the opinion that the claimant has, in bringing and conducting these proceedings, acted unreasonably and order that he shall pay to the respondent the sum of £300.00 in respect of costs incurred by it. We note that on 1 November 2004, the respondent's solicitors sent a letter to the claimant's representative warning that costs would be sought were his claim unsuccessful.

Chairman:

Date and place of hearing: 21 and 22 March 2005; 13 and 15 April 2005; and 16 and 18 May 2005, Belfast

Date decision recorded in register and issued to parties: