“the tribunal finds the minister’s evidence is implausible and lacks credibility” [Updated]

If you thought the controversy around NI Water and the then NI Regional Development Minister, Conor Murphy, MP, MLA, had gone away, think again.  The BBC reports that an industrial  tribunal has found that Alan Lennon, a Protestant overlooked for the post of chairman of NI Water in March 2011, was discriminated against on religious grounds.  From the BBC report

In March 2011, Mr Murphy appointed a Catholic as chairman, Sean Hogan, ahead of four others shortlisted after interview, all of them Protestants.

According to the tribunal, Mr Hogan was selected because “he was not from a Protestant background and because he was known to the minister and his (then Sinn Fein) ministerial colleagues”, Michelle Gildernew and Caitriona Ruane, who were consulted about the appointment.

The BBC has seen the 26-page decision issued to those involved.

It concluded: “The tribunal is in considerable doubt as to whether the merit principle was adhered to by the minister and whether Mr Hogan was the best candidate.”

It also said Mr Murphy had added new criteria to the selection process “in order to secure Mr Hogan’s appointment”, something it viewed as a breach of the code and procedures for appointments.

The tribunal disputed Mr Murphy’s claim he was unaware of the religion of the candidates.

“In the reality of the political and religious environment in Northern Ireland, the tribunal finds the minister’s evidence is implausible and lacks credibility.”

The tribunal also said that during Mr Murphy’s time as DRD minister – between 2007-2011, there was “a material bias against the appointment of candidates from a Protestant background”.

The findings added: “The tribunal is concerned that Dr (Malcolm) McKibbin as permanent secretary with DRD and currently head of the NI Civil Service was not more aware of the situation.”

The tribunal rejected Mr Lennon’s claim there was also political discrimination, saying there was “a paucity of evidence”.

Sean Hogan had previously been appointed Chairperson Designate of the proposed Education and Skills Authority.

And whilst Conor Murphy denies “any allegation of discrimination against Alan Lennon on religious grounds”

“I stand over all of the appointments I made as the regional development minister and adhered to all the set criteria for such appointments.

“The department have six weeks to decide whether to appeal this ruling. Having read the ruling myself I would be urging the department to utilise the appeals process.”

We know that the then NI Commissioner for Public Appointments, Felicity Huston, had concerns about Minister Murphy’s appointments to the Interim NI Water Board – immediately prior to the appointment in this case.  And that she had concerns about “other public appointment competitions in DRD.”

Ms Huston told BBC Northern Ireland’s Spotlight programme her office had found an “enormous number of gaps” in the process of appointing replacements.

“We couldn’t find out how people had ended up being interviewed,” she said.

“There were missing records about submissions to ministers where advice is given to a minister on how we might proceed.

“I have to say that I have investigated other public appointment competitions in DRD and been very dissatisfied with them.”

[Just as well he’s leaving the NI Assembly, then? – Ed]  Indeed.  Whether the current Minister choses to appeal is another matter…

Adds  As the UTV report concisely notes

The Fair Employment Tribunal has now said it is satisfied that the successful candidate, Sean Hogan, was appointed as chairman of NI Water “because he was not from a Protestant background and because he was known to the Minister and his ministerial colleagues”.

Dr Lennon, a Protestant, was interviewed for the post and was deemed appointable by the selection panel, along with three other Protestant candidates and one Roman Catholic candidate.

He made the case that he believed that he had greater relevant experience than the successful candidate and further argued that the Minister Conor Murphy added new criteria to the essential criteria established at the beginning of the process, in breach of the Public Appointments Commissioner’s Code.

The Tribunal was satisfied that three factors were introduced by the Minister as additional essential criteria and that “the provisions of the Code do not, in the Tribunal’s view, permit the use of additional criteria”.

And  The Irish Times report notes

The tribunal also found that over a four-year period during 2007-2011 when Mr Murphy was in charge of the department that “there was a significant disparity” between the success rates of Protestant and Catholic applicants and “that a Catholic applicant was at least twice as likely to be appointed than a Protestant applicant”.

“The tribunal is satisfied that there was a material bias against the appointment of candidates from a Protestant background within [the department].”

Update  Via the Equality Commission for NI press release, the full Fair Employment Tribunal decision is here [1.93mb pdf file].

And the latest BBC report includes Felicity Huston’s response to Conor Murphy’s invoking of her audit of the appointment.

Earlier, the former minister said his decision had been audited and approved by the appointments commissioner.

However, former commissioner Felicity Houston said: “We did audit the process, but it now transpires having read the report of the case that we weren’t shown all the information, all the paperwork that went with that particular competition

“If we had I think I would have had a very different view of what was going on.”

She added: “The permanent secretary, Malcolm McKibben, the minister and other senior officials met as they do frequently, but the minister was given the names of these five candidates prior to getting his detailed submission.

“That meant he knew who they were several days before he got the detailed papers that explained who they were, what they did and their experience, and that’s a serious flaw, that should not happen.”

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