Peifer v Southern Education And Library Board & Anor

Factual and Procedural Background

The Appellant lodged a complaint on 25 August 2005 alleging sex discrimination in recruitment for special needs classroom assistant posts across several Education and Library Boards and schools, including an application to the Respondent school. The Appellant claimed that the recruitment process was biased against males, supported by the fact that approximately 98% of classroom assistants were female. The recruitment process at the Respondent school was found to have procedural irregularities, including non-quorate selection panels and unclear shortlisting criteria, leading to the process being restarted.

Despite the recommencement, the Appellant was not shortlisted due to lack of specific training qualifications, and the eventual recommended candidates did not meet the criteria, leading to a decision not to appoint anyone and to re-advertise the post. The Appellant subsequently lodged a claim against the Respondents alleging sex discrimination and victimisation. The Respondents admitted liability for sex discrimination on the first day of the tribunal hearing in 2013, but the victimisation claim was not addressed at that time.

Further information revealed that the school principal employed eight female classroom assistants through an ad hoc process rather than re-advertising, which the Appellant alleged was victimisation. The victimisation claim was remitted for fresh hearing by this court in 2017. The new tribunal hearing took place between October 2018 and June 2019, focusing on unfairness in the recruitment process and the omission to appoint the Appellant.

Legal Issues Presented

1. Whether the Respondents engaged in victimisation against the Appellant in the recruitment process for the classroom assistant post at the Respondent school.
2. Whether the tribunal erred in law by limiting the scope of the victimisation claim to the recruitment process up to its abandonment, excluding subsequent conduct by the school principal.
3. Whether the Appellant sustained financial loss as a result of victimisation and the appropriateness of any award of damages, including aggravated or exemplary damages.
4. Whether the Appellant was deprived of a fair hearing by the tribunal’s refusal to allow amendment of the claim form to include victimisation arising from the ad hoc appointments made after the recruitment exercises.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court of Appeal emphasized its limited role to address points of law rather than rehear factual evidence, deferring to the tribunal’s findings unless they were legally flawed or unsupported by evidence. The tribunal had properly identified the relevant test for victimisation claims, requiring proof on the balance of probabilities that the prohibited ground was a significant reason for the adverse treatment.

The tribunal found prima facie evidence that the Respondents knew of the Appellant’s protected act (the original complaint) and treated him less favourably than female comparators during the recruitment process. However, the tribunal did not accept the Appellant’s evidence that he would have accepted the post due to practical considerations such as distance and his failure to relocate.

The Court found no error in the tribunal’s refusal to award exemplary damages, as the conduct did not amount to oppressive or abusive governmental action. The Court also noted the protracted and unsatisfactory litigation history, including late disclosure of information and the Respondents’ admission of liability on the first hearing day, which limited the tribunal’s ability to consider victimisation fully at that stage.

The Court held that the tribunal erred by confining the victimisation claim to the aborted recruitment process and not permitting amendment to include subsequent victimisation arising from the school principal’s ad hoc appointments. This limitation deprived the Appellant of a fair hearing and was unlawful. The Court expressed that the Appellant should have been advised to amend his claim to reflect the full scope of victimisation alleged, especially given that the new material had only recently come to light and no new cause of action was introduced.

Holding and Implications

The Court’s final decision was to find that the tribunal’s limitation on the scope of the victimisation claim was unlawful because it deprived the Appellant of a fair hearing. Accordingly, the Court indicated that the matter should normally be remitted to a tribunal to consider whether any additional compensation is warranted for injury to feelings.

Holding: The appeal is allowed in part, and the tribunal’s refusal to permit amendment of the victimisation claim is quashed.

Implications: The Appellant is entitled to pursue an amended victimisation claim including the conduct of the school principal after the recruitment exercises. The case is to be remitted for further determination of compensation, subject to the Respondents’ acceptance of the principle of compensation for the extended period. No new precedent was established beyond affirming the importance of fair procedure and proper scope in victimisation claims.