Labour Court Database __________________________________________________________________________________ File Number: AEE9210 Case Number: DEE943 Section / Act: S21EE Parties: ST. BRENDAN'S SCHOOL - and - A WORKER;THE EMPLOYMENT EQUALITY AGENCY |
Appeal by the worker against Equality Officer's Recommendation No. EE12/92 concerning a claim by the worker that the school discriminated against her within the meaning of Sections 2(a) and 2(c) of the Employment Equality Act, 1977 and in breach of Section 3 of that Act by failing to appoint her to an "A" post of responsibility.
Recommendation:
3. In cases of alleged discrimination, and where there is no
direct evidence of discrimination, discrimination will be inferred
from the facts of the case.
In this case, the Court does not find that any such inferences can
be drawn from the facts as presented.
There was an equal number of male and female applicants for the
post. Historically in the school females tended not to apply for
"A" posts of responsibility. Prior to the advertising of the post
in contention, there had only been three female applicants for "A"
posts of responsibility, one of whom had been successful.
The Court has considered the evaluation process used by the school
and the complaint that it was discriminatory. The Court finds the
interviews were conducted by a board consisting of male and female
members. No member of the board was on the staff of the school at
the time of the interviews, and all of the members of the board
were experienced interviewers.
Three male and three female candidates attended for interview, and
it was by unanimous decision that the members of the interview
board recommended a male candidate for appointment to the vacant
"A" post of responsibility.
The Court noted that no notes were taken of the interviews and
that no guidelines or set criteria were laid down for assessment.
In fact no effort was made to objectively assess the applicants
under any specific guidelines. The candidates were assessed on
the basis of the interviewing experience of the members of the
board.
The Court concurs with the finding of the Equality Officer that
the assessment was subjective.
The Court accepts that a subjective decision not based on any
performance determined criteria, can facilitate unintentional
discrimination. However the subjective assessment of a candidate
or candidates does not of itself constitute evidence of
discrimination based on sex.
It is not a matter for the Court to decide who was the most
meritorious candidate but, rather, whether the sex of the
complainant or of the successful candidate improperly influenced
the choice of the selection board.
All of the candidates had the required qualifications to make them
eligible to apply for "A" posts of responsibility. The
competitive interview method of selection was the method under
which the candidates of both sexes were assessed.
The successful candidate was selected on the basis of his
performance at interview. No grounds have been adduced which
could lead the Court to infer that the sex of the complainant or
of the successful candidate influenced the choice of the selection
board.
The Court is satisfied that the questions alleged to have been
asked at the interview do not constitute less favourable treatment
of the complainant on grounds of sex.
With regard to the allegations, that changes made in the
allocation of responsibilities of an "A" post (responsibilities
for the Canteen) prior to the commencement of the school year and
that hurling experience was a relevant factor in determining the
successful candidate for the "A" post of responsibility and that
the allocation of these responsibilities and this factor of
hurling experience impacted adversely on the female candidates,
the Court finds that the school authorities had reasonable grounds
for the changes made in "A" post responsibilities for the canteen.
The allocation of responsibilities for the canteen was made in the
interests of the pupils and the efficient running of the school
canteen which required the facility to be available from the
commencement date of term. The Court finds no grounds to indicate
that the members of the interview board were aware that the
responsibilities of the successful candidate in the vacant post
would include hurling.
Neither does the Court find that grounds have been adduced to show
that the duties attaching to the vacant post were decided or known
before the interviews or that the interview board was aware of the
responsibilities which would attach to the post.
In the light of the above the Court finds that the non-appointment
of the claimant to the vacant "A" post of responsibility did not
discriminate against her on the basis of her sex or contravene the
Employment Equality Act, 1977.
Division: MrMcGrath Mr McHenry Mr Rorke
Text of Document__________________________________________________________________
AEE9210 DEE394
EMPLOYMENT EQUALITY ACT, 1977
SECTION 21 EMPLOYMENT EQUALITY ACT, 1977
PARTIES:
ST. BRENDAN'S SCHOOL
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS CONFEDERATION)
AND
A WORKER
(REPRESENTED BY THE EMPLOYMENT EQUALITY AGENCY)
SUBJECT:
1. Appeal by the worker against Equality Officer's
Recommendation No. EE12/92 concerning a claim by the worker that
the school discriminated against her within the meaning of
Sections 2(a) and 2(c) of the Employment Equality Act, 1977 and in
breach of Section 3 of that Act by failing to appoint her to an
"A" post of responsibility.
BACKGROUND:
2. 1. The background to this case is set out in the Equality
Officer's Recommendation which is Appendix 1 to this
Determination. The Equality Officer in her Recommendation
which was issued on 7th July, 1992, found that the Board of
Management of the School did not discriminate against the
claimant contrary to the terms of the Employment Equality
Act, 1977.
2. On 13th August, 1992, the Association of Secondary
Teachers of Ireland on behalf of the worker appealed against
the Equality Officer's Recommendation. The Association's
letter and Notice of Appeal are attached as Appendix 2.
3. On 9th February, 1993, the Association advised the Court
that it no longer represented the worker. The Association's
letter is attached as Appendix 3.
4. The Labour Court heard the appeal on 23rd April, 1993,
in Portlaoise. The parties written submissions are attached
as Appendices 4 and 5. Both parties submitted additional
information at the hearing which was considered by the Court.
DETERMINATION:
3. In cases of alleged discrimination, and where there is no
direct evidence of discrimination, discrimination will be inferred
from the facts of the case.
In this case, the Court does not find that any such inferences can
be drawn from the facts as presented.
There was an equal number of male and female applicants for the
post. Historically in the school females tended not to apply for
"A" posts of responsibility. Prior to the advertising of the post
in contention, there had only been three female applicants for "A"
posts of responsibility, one of whom had been successful.
The Court has considered the evaluation process used by the school
and the complaint that it was discriminatory. The Court finds the
interviews were conducted by a board consisting of male and female
members. No member of the board was on the staff of the school at
the time of the interviews, and all of the members of the board
were experienced interviewers.
Three male and three female candidates attended for interview, and
it was by unanimous decision that the members of the interview
board recommended a male candidate for appointment to the vacant
"A" post of responsibility.
The Court noted that no notes were taken of the interviews and
that no guidelines or set criteria were laid down for assessment.
In fact no effort was made to objectively assess the applicants
under any specific guidelines. The candidates were assessed on
the basis of the interviewing experience of the members of the
board.
The Court concurs with the finding of the Equality Officer that
the assessment was subjective.
The Court accepts that a subjective decision not based on any
performance determined criteria, can facilitate unintentional
discrimination. However the subjective assessment of a candidate
or candidates does not of itself constitute evidence of
discrimination based on sex.
It is not a matter for the Court to decide who was the most
meritorious candidate but, rather, whether the sex of the
complainant or of the successful candidate improperly influenced
the choice of the selection board.
All of the candidates had the required qualifications to make them
eligible to apply for "A" posts of responsibility. The
competitive interview method of selection was the method under
which the candidates of both sexes were assessed.
The successful candidate was selected on the basis of his
performance at interview. No grounds have been adduced which
could lead the Court to infer that the sex of the complainant or
of the successful candidate influenced the choice of the selection
board.
The Court is satisfied that the questions alleged to have been
asked at the interview do not constitute less favourable treatment
of the complainant on grounds of sex.
With regard to the allegations, that changes made in the
allocation of responsibilities of an "A" post (responsibilities
for the Canteen) prior to the commencement of the school year and
that hurling experience was a relevant factor in determining the
successful candidate for the "A" post of responsibility and that
the allocation of these responsibilities and this factor of
hurling experience impacted adversely on the female candidates,
the Court finds that the school authorities had reasonable grounds
for the changes made in "A" post responsibilities for the canteen.
The allocation of responsibilities for the canteen was made in the
interests of the pupils and the efficient running of the school
canteen which required the facility to be available from the
commencement date of term. The Court finds no grounds to indicate
that the members of the interview board were aware that the
responsibilities of the successful candidate in the vacant post
would include hurling.
Neither does the Court find that grounds have been adduced to show
that the duties attaching to the vacant post were decided or known
before the interviews or that the interview board was aware of the
responsibilities which would attach to the post.
In the light of the above the Court finds that the non-appointment
of the claimant to the vacant "A" post of responsibility did not
discriminate against her on the basis of her sex or contravene the
Employment Equality Act, 1977.
~
Signed on behalf of the Labour Court
18th April, 1994 Tom McGrath
J.F./M.M. _______________
Deputy Chairman
Note
Enquiries concerning this Recommendation should be addressed to
Mr. Jerome Forde, Court Secretary.