Case Law Review – James Robert Peifer v Sullivan Upper School [2019] NICA

Indirect discrimination in applying recruitment/shortlisting criteria.

This case involved the application of a shortlisting criterion requiring experience, which was applied to all candidates, but with which fewer men than women could comply, and which led to the allegation of indirect discrimination.

In 2005 Mr Peifer, who was a qualified Teacher, applied for a position of Classroom Assistant at 14 schools.  When he was not successful he brought Tribunal proceedings alleging unlawful sex discrimination against each of the schools.  Some 14 years on we have the latest instalment in the Court of Appeal. The Court pointed out that much of the delay came about because the Claimant sought to appeal almost all Decisions, including Case Management Decisions.

In common with many other schools one of the criteria which Sullivan Upper used for shortlisting, was “appropriate experience as a Classroom Assistant in Schools”. The criterion had been considered by the Joint Negotiating Council.  There was an additional criterion of “Other Relevant Experience”.

The Claimant contended, and it was accepted, that at that time approximately 98% of those employed within the state education system as Classroom Assistants were female.

The first Tribunal held that there was no detriment to Mr Peifer because he maintained that he satisfied all the shortlisting criteria, including experience, because a teacher does all that a Classroom Assistant does and more, and his teaching effectively fulfilled this criterion.

Mr Peifer appealed.  The Court of Appeal took no issue in relation to the Tribunal’s finding that there had been no direct discrimination.  However, it considered that the imposition of a requirement for experience as a Classroom Assistant was such it would be that to the detriment of a considerably larger proportion of men than women.  That required justification, and it was not sufficient for the Tribunal to determine that the criterion was relevant.  The case was remitted for a hearing before a new Tribunal in relation to indirect discrimination.

The second Tribunal noted that the Claimant essentially relied on his experience as a Teacher as trumping other candidates’ qualifications and experience. He gave very little detail on his application form. He stated that Classroom Assistant posts were a form of “social planning” designed for women who would otherwise not have jobs and described the job as essentially “babysitting”.  The Tribunal noted that this stood in stark contrast to the comprehensive detail provided by the School’s witness as to the nature of the duties, and the insight required in respect of the particular child’s need.  The Tribunal accepted that, while a Teacher can perform the role of Classroom Assistant, a different skill set is required.  The criterion of appropriate experience had a legitimate aim or purpose and was justified. This is not, however, sufficient. The Respondent must show that the application of the PCP is proportionate.

The School’s evidence was that the Shortlisting Panel recognised that the vast majority of Classroom Assistants were female.  It sought to reduce the impact of that element by introducing an additional criterion “Other relevant experience”.  Perhaps fortunately, another male candidate, who did not have experience as a Classroom Assistant, but who did have 3 years’ experience as a Social Worker working with deaf children, was shortlisted.

The Court of Appeal concluded that the second Tribunal gave careful consideration to the effect on male applicants of the experience requirement, and the extent to which any disadvantage could be ameliorated by the additional criterion of “Other relevant experience”.  The Court did not detect any error in the approach of the second Tribunal and Mr Peifer’s Appeal was dismissed.

The case is a rare appeal decision in this jurisdiction dealing with indirect discrimination, and upholding a criterion which was to the detriment of a considerably larger proportion of men than women as being both justified and proportionate.

Practical Lessons

In the Supreme Court case of Essop v Home Office [2017] UKSC27, Lady Hale stated:-

“The requirement to justify a Provision, Criterion or Practice should not been seen as placing an unreasonable burden upon Respondents.  Nor should it be seen as casting some sort of shadow or stigma upon them.  There is no shame in it.  There may well be very good reasons for the PCP in question”.

Mr Peifer’s case established that the PCP was proportionate and justified.  This contrasts with the recently reported first instance case of Gordon Downey v The Chief Constable of PSNI [2018] 4182\18IT where the requirement not to have  facial hair was found  to be indirect as well as direct discrimination, and not justified or proportionate

The difficulty for employers and advisors is in guessing whether the Courts/tribunals will see a good reason for the PCP and, if justified, consider the steps taken to ameliorate any disadvantage are proportionate.

In practice it is important for employers to have clearly recorded at the time the rationale and basis for the potentially indirectly discriminatory criterion on recruitment, setting out the reason for requiring the indirectly discriminatory criteria.  The evidence should relate to the time when the criterion was imposed not to the time of hearing – hopefully not 14 years later.  An Equality Impact Assessment and consideration of potentially less discriminatory alternatives may help demonstrate that the matter was given proper consideration, and was proportionate.

24 October 2019

Adam Brett – Jones Cassidy Brett Solicitors