EMPLOYMENT EQUALITY ACT, 1977
EQUALITY OFFICER'S RECOMMENDATION NO. EE 15/1996
P A R T I E S
Co. Laois V.E.C.
(Represented by I.B.E.C.)
AND
Ms. Mary Higgins
(Represented by the T.U.I.)
1 Dispute
1.1 This dispute concerns a claim made by the union on
behalf of the claimant Ms. Higgins that Co. Laois
V.E.C. discriminated against her when it did not
appoint her to an "A" post in Rathdowney V.E.C. and
appointed a male candidate to the post.
2 Background
2.1 The claimant is a teacher employed in a permanent
capacity by Co. Laois V.E.C. since 1982. She was
appointed to a "B" post of responsibility in 1990. In
1991 she was appointed in an acting capacity to an "A"
post of responsibility. In September 1994 this acting
post was advertised as a permanent position. The
claimant applied for it. The V.E.C. held interviews for
the post in November 1994. There were three
candidates, two female and one male and the male
candidate was appointed. The union says that the
claimant had sufficient experience and was better
qualified for the position than the appointee and
claims that she was discriminated against when the
File No. EE 15/1995
position was given to a less qualified male. The
T.U.I. referred the dispute under Section 19 of the
Employment Equality Act, 1977 to the Labour Court in
May 1995. The Labour Court then referred this case to
an Equality Officer for investigation and
recommendation.
3 Summary of Union's case
3.1 The union alleges that the claimant was treated in a
discriminatory manner and denied promotion by Co. Laois
V.E.C. on the grounds of her sex. The union says that
the claimant has been employed as a teacher in a
permanent capacity by Co. Laois V.E.C. since 1982. It
says that she was successful in 1990 in being appointed
to a "B" post of responsibility in Rathdowney V.E.C.
In 1991 she was appointed to an acting "A" post of
responsibility in the school(also on foot of a
competition). It says that in September 1994 the "A"
post in which she was acting was advertised as a
permanent position. The claimant applied for the
position and was called for an interview on the 14th
November, 1994. There were three applicants in total
for the position, two females and one male. The union
says that the successful candidate was Mr. Robert Ryan,
a metalwork teacher, who held a "B" post of
responsibility.
3.2 The union says that the claimant who is single, was
treated less favourably than the appointee to the
position because of her sex and marital status and it
argues that
(a) the claimant has superior qualifications than him,
(b) the claimant has better experience than him,
(c) Cognisance was not taken of the claimant's
superior
qualifications and experience in the promotion in
that she had held an "A" post of responsibility.
(d) The union says that there is a clear bias against
women getting senior posts in St. Fergal's College
in Rathdowney and in other Co Laois vocational
schools.
3.3 The union considers that the claimant was as well
qualified for the position in question as the
appointee, having occupied an "A" post in an acting
capacity for three years without complaint. It also
argues that the claimant's experience in education
consists of fifteen years teaching experience and in
addition eight years teaching experience with adults,
experience in administrative work as a "B" post holder
and as a holder of an acting "A" post of
responsibility, examination, correction and
superintending and professional educational experience
through senior involvement in the Laois Teachers
Centre, the Association of History Teachers of Ireland
and the Teachers Union of Ireland. It says that her
qualifications and experience are superior to those of
the appointee and that her qualifications and studies
in management in education have considerable relevance
for promotion into a permanent "A" post of
responsibility. Her additional qualifications enhance
both her teaching and management qualifications. These
are over and above the basic qualifications required
for appointment to the V.E.C. The union thereby
contends that the claimant's superior qualifications
deem her more suitable than the appointee for promotion
to an "A" post of responsibility. (appendix 1 refers).
3.4 The union says that the claimant willingly undertook
extra duties and responsibilities when she took on the
role of transition year co-ordinator. It says that she
carried out her duties exceptionally well and she never
received a complaint from the Principal or anyone else
about the manner in which she did this work. The union
also contends that the claimant had gained invaluable
experience for the three years that she had held the
acting "A" post of responsibility which the appointee
did not have.
3.5 The union contends that the claimant was more suitable
than the appointee for the duty and responsibility of
transition year co-ordinator as she had superior
qualifications, in- service training and experience of
the co-ordination of courses with Laois Teachers
Centre, but more importantly she was already doing this
work in a most satisfactory manner.
3.6 The union says that at the interview on the 14th
November 1994 that there were five members on the board
with the CEO acting in an advisory capacity. It says
that the claimant was very satisfied with her interview
and the type of questions put to her which were largely
about her work on the transition year programme. It
says that the CEO recommended her as a very suitable
candidate which he later confirmed in a letter to the
Employment Equality Agency
"In taking each of the applicants through their C.V.s at interview, I
was able to fully recommend all three as suitable for appointment. I
distinctly recall that, while escorting Ms Higgins back to the
waiting room after her interview, she thanked me for the
recommendation which I had unreservedly given her to the Board, in
her presence."
3.7 The union therefore argues that the claimant has
superior qualifications and better experience that the
appointee, had proven her suitability at the interview
and was recommended without reservation by the CEO to
the selection board and says that she was denied
promotion on the grounds of her sex and marital status.
3.8 The union argues that all the senior posts in St.
Fergal's College in Rathdowney are held by men. It says
that in the academic year 1994/95 from a total of 31
full time teachers on the staff, 19 were female and 12
were male. It says that 9 of the 12 males hold posts,
either at Principal, Vice Principal, "A" or "B" post
level while only 8 females hold posts and all these are
at "B" post level. The full table and breakdown of
these numbers is also at Appendix 2.
3.9 The union argues that in recent promotions in the Laois
V.E.C. area, that a predominance of males have been
promoted. It argues that in 1991 when the male
Principal of St. Fergal's College Rathdowney retired
another male was appointed Principal. The union
understands there were a number of female candidates.
Likewise in 1991, five of the seven applicants were
female when an acting "A" post of responsibility arose,
due to an "A" post holder going on a career break. The
claimant and the appointee were among the 7 applicants
for this position, and the claimant was successful on
that occasion. In November, 1994 when this permanent
"A" post arose because of the retirement of the
original post holder, there were 3 candidates, the
appointee, the claimant and one other female, the male
appointee was successful.
3.10 The union says that all recent appointments to
permanent senior positions in the school were to male
teachers. It says that it is clear from the tables it
has provided (ref appendix 2) that 7 males hold the 7
senior positions in St. Fergal's College, Rathdowney.
58% of male teachers hold senior posts while 0% of
female teachers hold senior posts, despite the fact
that 61% of the staff are female and 50% of the student
population in the school are female. No female teacher
holds an "A" post of responsibility.
3.11 The union contends on the basis of the above
information that there is a clear bias in favour of men
and a bias against women in St. Fergal's College,
Rathdowney in relation to promotion.
3.12 The union contends that if the claimant was deemed
suitable for the acting "A" post of responsibility by
Co. Laois V.E.C. she is therefore suitable for the
permanent position.
3.13 The union says that it concludes from the foregoing
that because of the bias against women for senior
positions in this school, that Co. Laois V.E.C.
believed that the claimant was suitable only while the
"A" post was non-permanent and that once this position
was permanent she was deemed unsuitable by the V.E.C.
because of her sex.
3.14 The union has also supplied a gender breakdown of
teachers in the five vocational schools in Co. Laois
and these are at Appendix 3. The union argues that
from looking at these figures that there is a clear
bias against female teachers being appointed to senior
positions in vocational schools in Co. Laois. It says
that only one female teacher out of a total of 38
female teachers has a senior position with Co. Laois
V.E.C. This equates to promotion of 2.6% of females to
senior positions. This compares to 17 out of a total
of 35 male teachers, who have senior positions and
shows that 48.6% of male teachers in V.E.C. schools in
Co. Laois get promoted to senior positions.
3.15 In relation to these statistics the union says that
since 1990, six senior positions have become vacant in
Co. Laois and in each case male teachers were appointed
to fill them. It says that Principal posts have been
filled by males in 1990 in Mountrath and Portarlington
Vocational School. Also in 1990 the supervising
teacher (a male) in the Education Unit of Portlaoise
prison was appointed and both the Principal's post in
Portarlington Vocational School and the supervising
teacher in Portlaoise had been held in an acting
capacity by the person appointed to them, prior to
their permanent appointments. The union also pointed
out that in 1991 a male became Principal in Rathdowney
and it pointed out that there were a number of female
applicants in this position. In 1993 a male was
appointed to vice principal of Portlaoise V.E.C. and
the union says there were a number of female applicants
for this position. In 1994 a male became an "A" post
holder in St. Fergal's College, Rathdowney. (The
subject of this claim). There were two other
candidates, both female teachers. From these figures
the union therefore concludes that there is a bias in
favour of male teachers for senior positions and a
clear bias against female teachers. It says that no
female teacher has been appointed to a senior post
since 1990 despite 6 permanent positions becoming
vacant and despite several females applying for these
positions. It further says that no female teacher holds
an "A" post of responsibility in any of the Co. Laois
V.E.C. schools. Out of a total of 18 senior posts only
one is held by a female teacher while 17 are held by
male teachers despite the fact that there are more
female teachers employed by Co. Laois V.E.C.
3.16 The union says that from the evidence provided it is
clear that the claimant has superior qualifications and
better experience than the appointee. As a result the
union believes that she has suffered discrimination
because of her sex and marital status and that she has
been denied promotion to a senior position of an "A"
post of responsibility by Co. Laois V.E.C. The union
believes that the claimant is a victim of the already
well established practice by Co. Laois V.E.C. of
promoting male teachers to senior positions and she
therefore is a victim of the clear bias held by Co.
Laois V.E.C. against female teachers in the scheme.
3.17 The union says that the denial of promotion to senior
positions to female teachers in St. Fergal's College,
Rathdowney and in other Vocational Schools in Co. Laois
means that the role of the female teacher is being
defined in a narrow and subordinate way. This impacts
greatly on female students and places them in a
disadvantaged position as they are not being provided
with a female role model in the areas of management and
decision-making in the school.
3.18 The union says the denial of promotion to female
teachers to an "A" post of responsibility means that
their chances of getting beyond promotion to a "B" post
of responsibility are almost non-existent as they have
no opportunities to gain enough experience for the
position of Vice-Principal or Principal.
3.19 The union says as a result of the discrimination that
she has suffered and by being denied promotion by
County Laois V.E.C., the claimant has suffered a loss
of reputation as a teacher among students, colleagues
and the local community. This loss of reputation has
been made worse by the publication in the local
newspapers of her failure to secure the "A" post of
responsibility (e.g. The Nationalist and Leinster
Times: 2/12/1994).
3.20 The union contends that had discrimination not
occurred, the claimant would have been promoted to a
permanent "A" post of responsibility and it seeks that
she be promoted by Co. Laois V.E.C to an "A" post of
responsibility with effect from 14 November, 1994. The
T.U.I. also seeks compensation to be paid to the
claimant for the considerable stress endured by her
personally and professionally and the considerable
stress involved in pursuing this case.
3.21 In relation to the case made by the V.E.C., the union
says that while the V.E.C. has argued that it was
seeking management potential rather than experience,
the union claims that the claimant has proven
experience of filling an "A" post. It also points out
that the claimant's Diploma in Management in Education
and Master of Studies Degree in School Leadership and
Curriculum Studies are relevant to this appointment.
3.22 The union also says that it not seeking positive
discrimination on the part of the V.E.C. in seeking
promotion to be given to females in areas where they
are under represented but it argues that the under
representation of women in promotional posts in Co.
Laois V.E.C. is of significance and relevance in the
claimant's case. It says that the V.E.C. has confirmed
that pre-determined criteria or marking schemes are not
used in the selection of candidates for all promotional
posts in Co. Laois V.E.C. and that "once an individual
satisfies the necessary qualifications, then the only issue to be
determined was their suitability which was based on performance at
interview." It argues then that the clear imbalance in
the proportion of men as opposed to women in
promotional posts in Co. Laois V.E.C. is accounted for
by the superior performance of men at interview. The
union contends that the under-representation of women
in promotional posts in Co. Laois V.E.C. may, in fact,
be a result of the subjective nature of the decision
making process facilitating unintentional
discrimination as opposed to men out-performing women
at interview.
3.23 The union also says that the V.E.C. on the one hand
argues that it is seeking management potential not
actual management experience but then argued that the
appointee's membership of the Board of Management of
another school was significant in reaching its
decision. The union points out that the claimant is
not in a position to gain experience as a member of the
Board of Management of the this other school (the local
primary school) as the appointee is a parent nominee to
that Board. The union contends that the significance
attached to the appointee's management experience as a
member of this Board of Management must be considered
as raising an inference of discrimination against the
claimant in terms of Section 2(c) of the Employment
Equality Act contrary to Section 3 of the Act.
4 Summary of the Employer's Arguments
4.1 The V.E.C. says that an "A" post of responsibility is a
middle management post within a school. There are
three general duties attaching to an "A" post which are
written into the successful candidate's contract of
employment.
(i) To be responsible, under the Principal teacher for
the organisation, discipline and administration of
the Vocational School.
(ii) To engage in teaching the number of hours per
session specified in section 16.7 of Memorandum
V7.
(iii)To comply with lawful orders of the Committee, and
its Chief Executive Officer, and with the rules
and requirements of the Minister for Education.
4.2 The V.E.C. says that a teacher, a female, who held an
"A" post took a career break. While the permanent
holder of this post was on a career break the claimant
obtained this "A" post, after a competition, on a
temporary basis. The teacher on the career break
resigned and as a result a permanent "A" post became
available in Rathdowney School, Co. Laois. The post
was advertised in the County. There were three
applicants, two female and one male, all of whom taught
in Rathdowney School. To be considered for an "A" post
one must have at least three years service with the
V.E.C. and have a permanent full-time teaching post.
All three applicants fulfilled this requirement.
4.3 It says that the specific duties which attach to an "A"
post are not determined prior to it being advertised.
When a post is filled a discussion takes place between
the Principal of the school and the successful
candidate and the specific duties attaching to the post
will depend on the needs of the school and the
expertise/interests of the successful candidate. This
is to ensure that no advantage accrues to any applicant
for an "A" post prior to it being filed. Thus the
specific duties attaching to the "A" post of
responsibility filled by the claimant on a temporary
basis would not necessarily be carried out if another
candidate was appointed to the post. If fact the
duties carried out by the claimant while employed in
the acting "A" post, were completely different from
those carried out by the person whom she replaced on a
temporary basis.
4.4 The V.E.C. says that interviews for the post were held
in the School on November 14, 1994. The Interview
Board comprised of five voting members. Three of these
were members of County Laois V.E.C., the forth member
was a nominee of the Irish Vocational Education
Authority and the fifth member of the Board was an
Inspector from the Department of Education. In
addition, the CEO of Co. Laois V.E.C. was present at
the interview in a non-voting capacity.
4.5 The V.E.C. says that at the interview the CEO commenced
by taking each applicant through their curriculum
vitae. Afterwards, each member of the Interview Board,
in turn, asked questions. It argues that the claimant
was very satisfied with her interview.
4.6 The V.E.C. says that two questions were asked by one
Interview Board member which were crucial in
influencing the decision of a number of Interview Board
members as to the suitability of the applicants for the
post.
These were:-
1. "Do you see an "A" post holder as part of the
management team?"
2. "Who would you support in a conflict between a
teacher and a pupil?"
The V.E.C. says that in relation to the first question,
the claimant stated that she did not see an "A" post
holder as part of the management team, that the
management team in a school were the Principal and the
Vice-Principal and that she saw the job in terms of the
specific functions involved.
The V.E.C. says that this was not the answer it
expected. In a school the "A" post is a
middle-management position and the appointee on the
other hand, clearly stated that he saw an "A" post
holder as part of the management team and a very
important backup to the Principal and Vice-Principal.
The V.E.C. says that in relation to the second
question, the claimant said that she would always
support a colleague. It argues that this is not the
answer that it expected. The appointee on the other
hand, stated that he would investigate the problem and
try to sort it out rather than take sides. This again,
is the answer that one would have expected from a
member of the management team. A teacher would not be
correct in all cases of conflict with a pupil.
4.7 The V.E.C. says that management potential of candidates
is what is relevant rather than their academic
qualifications or teaching skills. The appointee had
also made a significant contribution to the School.
For example, he kept in touch with pupils after they
had left the School and had obtained apprenticeships
for some pupils. In addition, he is very involved in
the local community and is a member of the Board of
Management of the local primary school.
4.8 The V.E.C. says that following the three interviews the
Interview Board members discussed the attributes of the
three candidates. The Interview Board's report, which
was signed by all members, recommended the appointee as
the most suitable applicant. During this discussion no
mention whatsoever took place of either the sex or
marital status of any of the three candidates. These
factors had no bearing whatsoever on the decision of
the Interview Board.
4.9 The V.E.C. rejects the allegation that it discriminated
on the grounds of either sex or marital status against
the claimant. It says in relation to marital status
that Section 2(b) of the 1977 Act states that:
"discrimination should be taken to occur ...... where because of his
marital status a person is treated less favourably than another
person of the same sex" (Employer emphasis).
The V.E.C. says that however, whilst the claimant is of
a different marital status than the successful
applicant, she is clearly not of the same sex. Thus,
no discrimination on grounds of marital status as
defined by the Employment Equality Act, 1977, could
have occurred. It says that the marital status of the
appointee had nothing whatsoever to do with his
appointment to the post in question. Furthermore, some
of the Interview Board members were not aware of the
marital status of the claimant. One Interview Board
member had met none of the Interview Board members or
candidates prior to November 14, 1994.
4.10 The V.E.C. also rejects the allegation that it
discriminated against the claimant on the grounds of
her sex. The fact that she was a female or the fact
that the successful candidate was a male had nothing
whatsoever to do in determining who was appointed to
the "A" post.
4.11 In relation to qualifications the V.E.C. says that the
claimant fulfilled the requirements of the job as did
the other two candidates. The V.E.C. says that it is
incorrect for the union to claim that the claimant has
superior qualifications and better experience than the
appointee for the post in question. Academic
qualifications are not relevant to the post. All that
was required for someone to be called for interview was
that they be a permanent full-time teacher with at
least three years teaching experience, as set out in
the advertisement and all three candidates fulfilled
that requirement.
Once an individual satisfies the necessary
qualifications then the only issue to be determined was
their suitability which was based on performance at
interview. Accordingly, it was decided by the Interview
Board that the appointee would be the best suited to
the middle management post in the School.
4.12 The V.E.C. rejects the claimant's contention that she
was treated less favourably than the appointee because
of her sex or marital status. It says that an "A" post
of responsibility is a management post. It says that
many of the qualifications of the claimant are academic
qualifications and therefore are not relevant. In
relation to the management and education qualifications
the V.E.C. says that the claimant did not make clear to
the Interview Board how she had used these for the
benefit of the School to date. It is also incorrect for
the claimant to state that she had better experience
than the appointee. The duties that attach to an "A"
post are not determined until after the appointment is
made. This ensures that no candidate has an advantage
prior to a competition. Furthermore, the TUI object to
any members being required to teach in areas where,
although they may have the qualifications, it is not
set out in their contract of employment.
4.13 The V.E.C. says that the allegation made by the
claimant that there is a clear bias against women
getting senior posts in both St. Fergal's College,
Rathdowney, and other V.E.C. schools in the County is
not relevant to the case. It says that the claimant
must be able to substantiate her own allegation of
discrimination without reference to the number of males
and females occupying senior posts in V.E.C. schools in
the County.
4.14 The V.E.C. says that the fact that the claimant was a
class tutor had nothing whatsoever to do with her "A"
post duties. Each class has a class tutor. As a
result, many teachers take on the role of a class
tutor, whether or not they hold a post of
responsibility.
4.15 The V.E.C. says that the appointee's responsibilities
were:
- maintenance of school grounds and equipment used;
- allocating, maintaining and collecting money for
student lockers;
- School Fire Officer, this includes ensuring fire
extinguishers are working in each classroom - and
if not then have this dealt with - and also to
organise fire drills.
Furthermore, it says, the duties attaching to a post of
responsibility which one already holds was not relevant
to the competition for the permanent "A" post in the
School. It was management potential that was relevant
and who, based on performance at interview, was deemed
to be the most suitable of the three applicants.
4.16 The V.E.C. says that the union are implying that the
experience the claimant gained when performing an "A"
post on a temporary basis made her a more suitable
applicant for a permanent "A" post than the appointee.
However, if this was the situation then there would
have been no need to interview any applicant who did
not hold an "A" post on a temporary basis. However, it
says that neither the claimant not the TUI had any
difficulty with the "A" post being advertised
throughout the County. If, as the union appear to be
implying, that previous "A" post holders must be given
preference then there would have been no need to hold
any interviews at all. If this occurred, there would
be objections from the TUI.
4.17 The V.E.C. says that the Transition Year Co-ordinator's
duties and responsibilities are not relevant to this
claim because the duties and responsibilities attaching
to an "A" post are not determined until after an
appointment has been made. This is to prevent any
advantage accruing to any one candidate. It is also
worth noting that the claimant refused to perform the
role of Transition Year Co-ordinator when she failed to
be appointed to the "A" post in dispute.
4.18 The V.E.C. says that teaching experience is not
relevant when competing for an "A" post of
responsibility. It says that an "A" post is a middle
management post in the school and therefore it is
management skills rather than teaching skills that are
relevant. Both the claimant and the successful
candidate, had "B" posts of responsibility. Whilst the
claimant did work in an "A" post on a temporary basis,
this does not give her any right or priority over any
other candidate who previously did not hold such a
post. Otherwise, as was stated before, there would not
have been any need to hold interviews for the post.
4.19 The V.E.C. says that it is incorrect for the union to
state that the questions put to the claimant at the
interview were largely about her work under the
Transition Year Programme. Only one Interview Board
Member spoke to the claimant about this Programme. The
other four Interview Board members asked about other
issues. It also says that whilst the CEO recommended
the claimant as a very suitable candidate for the "A"
post of responsibility he also did the same in the case
of the other two candidates. As the CEO stated in a
letter sent to the Employment Equality Agency he fully
recommended all three candidates as suitable for
appointment.
4.20 The V.E.C. says there is an onus on the union to prove
the allegations it makes, in relation a bias in favour
of men for promotion and a bias against women in
Rathdowney School, or else to withdraw them. It says
that the union has made a presumption that a case has
already been proved that Co. Laois V.E.C. discriminates
against women for senior positions in Rathdowney
School. Simply because males have been more successful
than females in the past in obtaining promotional posts
in Rathdowney School is not evidence of discrimination
in favour of men. In every competition each candidate
has had their application decided on merit. It had
nothing whatsoever to do with the sex of the
individuals concerned. Each case must be decided on
its merits. It also says that the number of males and
females in senior posts in Vocational Schools in County
Laois has nothing whatsoever to do with this claim.
4.21 The V.E.C. says that the only issue to be investigated
in this case is the allegation made by the claimant
that she was not appointed to the "A" post in
Rathdowney School because of her sex and/or marital
status.
4.22 The V.E.C. says it is also incorrect to state that the
claimant was deemed suitable only while the "A" post
was of a temporary nature. The appointee was appointed
to the job because he was deemed by the Interview Board
to be the most suitable candidate. It had nothing
whatsoever to do with his sex or marital status.
4.23 The V.E.C. says that the claimant's case is based on
two issues:
1. That she has superior qualifications and better
work experience than the appointee.
2. Statistical data that has been provided showing
that the majority of senior posts in vocational
schools in the County are occupied by males.
If a decision on who to appoint was based purely on
qualifications and experience then there would be no
need to interview candidates for an "A" post. Clearly,
these are not the factors that are used by Laois V.E.C.
to determine who is the most suitable candidate for
such a post. Other factors are necessary and this is a
reason why an interview must take place. The interview
is required to assess candidates on the basis of other
things besides academic qualifications and experience -
that is potential to fill an "A" post and to able to
integrate into the management team in the School.
The statistical evidence provided is not relevant to
this case. The claimant must be able to substantiate
her allegation that she was the most suitable candidate
in this competition and the reason she was not
appointed was because of her sex or marital status.
That is, she cannot rely on statistics showing the
number of males and females in promotional posts in
schools in the County as conclusive evidence of
discrimination. Otherwise, in any competition for a
promotional post the claimant is arguing that it must
go to a female. This is positive discrimination and is
illegal.
5 CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The matter for consideration in this case, is whether
or not the claimant was discriminated against, by the
V.E.C. on 14th November 1994, contrary to Section 3 of
the Employment Equality Act 1977 in terms of Section
2(a) of that Act "where by reason of his sex a person is treated
less favourably than a person of the other sex."
when it did not appoint her to the advertised "A" post.
The "A" post of responsibility attracts a permanent and
pensionable allowance of £2,820 per annum. A "B" post
attracts and allowance of £1,247 per annum. At the
time of the alleged discrimination the "A" post
attracted an allowance of £2,765 and the "B" post
£1,223.
5.2 Both parties have made detailed and extensive
submissions both in writing and at a joint hearing held
between the parties in this case. In summary the union
argued on behalf of the claimant that;
- she should have been appointed to the vacancy
because she was the most suitably qualified
candidate
- she had been promoted in the past by the V.E.C.
- her qualifications are superior to the appointee,
- she has better experience than the appointee as
she had held a "B" post and an acting "A" post of
responsibility,
- there is a clear bias against women getting senior
posts in St. Fergal's College in Rathdowney and in
other vocational schools under Co. Laois V.E.C
5.3 The V.E.C. categorically denied that it had
discriminated against the claimant and rejected any
allegation of unlawful discrimination. It argued that
the interview board assessed all the applicants under
the same criteria.
5.4 I consider that the main issue for examination is
whether or not the claimant was discriminated against
on grounds of sex during the selection procedure. She
claims that she is better qualified than the appointee.
I have studied the V.E.C.'s arguments in support of its
decision to appoint the appointee to the post and I
consider it necessary to examine whether the interview
board's criteria was free of any sexual bias or if
there was evidence of a sex bias in the actual
selection.
Selection Process
5.5 I note that the Interview Board made no formal report
of the interview process, consequently there is no
record available of the manner in which the Board
assessed the candidates for this appointment. I also
note that the V.E.C. says in its submission that the
promotion was based on the candidates' performance at
the interview and not on their qualifications or
experience. It has argued that to be eligible to apply
for an "A" post three years teaching experience and the
basic qualifications required for an initial
appointment to a teaching post are sufficient. I note
that the V.E.C. says it did not take into its
consideration of the candidates their previous work
experience, only their potential management ability.
5.6 During my investigations into this case I asked the
board members to indicate how they reached their
decision. The Interview Board confirmed at the hearing
that there were no pre-determined criteria set by or
for them. It did not know what job was to be filled.
The Board says that it did not mark the candidates but
that two questions that were asked of them were crucial
in influencing the decision of a number of the
Interview Board members. At the hearing the Interview
Board confirmed to the Equality Officer that these
questions were not set in advance but by sheer chance
one Board member had asked these questions of the first
candidate and they were then asked of the other two
candidates as well.
These were:-
(a) Do you see the "A" post holder as part of the
management team?
and
(b) Who would you support in a conflict between a
teacher and a pupil?
5.7 I note that the union argues in relation to these
questions, on which the V.E.C. claims to have made its
decision to promote, that given their importance in the
decision making, a full opportunity was not given to
the claimant at the interview to expand fully on the
answers to them. The V.E.C. argues that the selection
was made based on performance at interview and that the
applicants had to sell themselves to the Board. The
Board considered that the responses of the claimant
were not satisfactory for an applicant for a management
post.
5.8 I note that the claimant's response to question (a) was
to the effect that the holder of a post of
responsibility is expected to carry out the specific
duties of the post but is not responsible for the
management of staff. I note that the union, in support
of this statement, referred to a recent green paper on
education where it is an aspiration that post holders
would take on management responsibilities. The union
quoted from various papers, (the Green Paper on
Education 1992, the IVEA Response to it in 1993, the
National Education Convention Report 1994 and the White
Paper on Education 1995) in this regard and said that
at the moment the content of "A" and "B" posts is under
negotiation and it is envisaged that they would be part
of management in the future but are not at present.
5.9 The claimant's response to question (b) was that she
said she would support the colleague and then
investigate the issue. She argues that she gave this
reply at the interview because it is necessary to both
maintain discipline and the authority of a teacher at
all times until an incident could be investigated
fully. The union also argues that teachers would
always support a colleague and then investigate an
incident unless the contrary is blatantly the case. I
note also that the union argues that it was not a fair
analogy to compare this to the action of a shop steward
and a customer as the V.E.C. has done.
5.10 I consider that if an interview board is using two
questions in particular to decide between candidates in
a selection process, then natural justice demands that
either the candidates are aware of this fact or that
the replies made by the candidates should be fully
teased out by the questioners in order that every
opportunity is given to the candidate to give a full
reply.
Management Ability
5.11 I also note that the selection board put great emphasis
on one requirement i.e. management potential. The
V.E.C. has argued that the appointee's membership of
the Board of Management of the local primary school was
evidence of his potential management ability. His
nomination to this Board is as a parent representative
and I note that similar membership of this Board of
Management is not available to the claimant. I note
that this criterion did not directly discriminate
against the claimant on grounds of sex.
5.12 Membership of the Primary School Board of Management on
similar grounds to the appointee was not open to the
claimant, therefore non membership put the claimant at
a disadvantage vis-a-vis the appointee. I consider in
relation to this requirement of the interview Board
that the claimant be a member of the Primary School
Board of Management as an indication of her management
potential was not an essential requirement for either a
subject teacher or the holder of a post of higher
responsibility and consequently I consider that the
Interview Board treated the claimant less favourably
than the appointee when it found that his membership of
it qualified him for the vacancy.
5.13 The Board considered that the appointee had management
potential. In this regard it did not consider that the
claimant's three years work experience in an "A" post
was relevant. The appointee did not have either
experience or qualifications in management. I accept
that both had experience in "B" level posts.
5.14 I consider that the fact that the Interview Board
failed to consider the claimant's obviously superior
work experience and qualifications in their decision
making, is evidence in support of the allegation that
there was discrimination against her on the basis of
her sex in the selection process.
Professional Qualifications
5.15 Both the claimant and the appointee were qualified as
basic teachers and had the minimum work experience
required by the V.E.C. to enable them to apply for the
posts. I note that the claimant had longer teaching
experience and higher qualifications than the
appointee. Her qualifications are at appendix 1.
5.16 At the hearing the V.E.C. argued that the appointee had
more managerial potential than the claimant. I find
that the V.E.C. did not put forward a convincing
argument to demonstrate why membership of a Board of
Management of a primary school was superior to the
claimant's qualifications and experience.
5.17 As I have already said the Interview Board found in
favour of the appointee. I consider that from the
written submissions and from the points made by the
members of that Board during the hearing that the final
selection was based on an overall impression that the
appointee was more suitable and presented better in
their eyes at the interview. Both candidates were
qualified within their prior work experience and
therefore it is necessary for the V.E.C. to show that
its selection procedure was not tainted by any form of
sexual discrimination.
5.18 The European Court in Danfoss (1989) IRLR 352 has
ruled that where "an undertaking applies a system of
pay which is characterised by a total lack of
transparency, the burden of proof is on the V.E.C. to
show this his pay system is not discriminatory".
Similarly I consider that this concept of transparency
should apply to the appointment of staff to vacancies
or promotional opportunities in employment. In respect
of the basic qualifications I consider that the
claimant was as well qualified for the vacancy as the
appointee, therefore the onus is on the V.E.C. to
demonstrate that there was no discrimination on the
grounds of sex.
Bias against women being appointed to senior posts.
5.19 The claimant in her submissions refers to a background
of discrimination towards female staff in relation to
promotion and quotes statistics in support. The V.E.C.
claims that all staff are treated in a
non-discriminatory fashion. I accept that this may be
so but I note that from statistics provided to me by
the union and not disputed by the V.E.C. that there is
a majority of males in promotional posts within both
Rathdowney school and overall in Co Laois V.E.C. In
Rathdowney School there is a staff of 12 male and 19
female from a total of 31 teachers. Nine men hold
posts of responsibility (Principal, Vice Principal, 5
"A" post holders and 2 "B" post holders) and 8 women
hold "B" posts. Three men and eleven women are non post
holders.
Again in overall terms within the county there are more
female teachers employed - ie 38 women - 35 men.
However of the senior 17 posts at Principal,
Vice-Principal and "A" post level only one female
teacher, who is a Vice- Principal, has a senior
position. I consider that as there is obviously a
preponderance of males in senior positions in Co. Laois
V.E.C., it is all the more necessary for the V.E.C. to
ensure that its procedures for making promotional
appointments are totally unbiased and can be seen as
such.
Most Suitably Qualified Candidate
5.20 I note that the claimant alleges that she should have
been appointed to the vacancy because she was the most
suitably qualified candidate for the post as she had
the technical knowledge and experience in both "A" and
"B" posts. The Union also pointed out that the CEO
said that the claimant was an exceptionally good
candidate. Consequently I consider that the manner of
assessing both candidates should have been recorded and
been available. I note that while the interview board
said that it spent a considerable time reaching its
decision on who to appoint it kept no record of how it
reached this conclusion.
5.21 I note that the claimant has experience in both "A" and
"B" posts and at the time the interviews were held was
developing a programme for a transition year which was
due to implemented within the school in the following
year. This involved the claimant having to interface
with colleagues in the school and getting their
co-operation in developing the programme.
5.22 The V.E.C. says that the post advertised was a
managerial one so I consider that it is reasonable to
assume that the successful candidate would require
either management experience or qualifications. The
claimant had both. The appointee, by the V.E.C.'s own
statement, had "potential". I accept that the appointee
had service as a teacher in the school and carried out
the duties of a "B" post holder. I also accept that
the successful candidate would not necessarily be
appointed to the post occupied by the claimant on a
temporary basis.
5.23 The V.E.C. has argued that it appointed the person with
management potential and pointed out that he was
involved in the community as he is on the Board of
Management of the local primary school and has obtained
apprenticeships for some of his pupils in the past. I
note that the claimant has equally contributed both to
the school and to the community by her extra curricular
activities amongst which she organised, through the
Laois teacher's centre, courses for her colleagues in
Rathdowney and other schools.
5.24 I consider that in relation to the vacant post the
claimant had more relevant experience than the
appointee for the position. I also consider that on the
facts put before me the claimant was overall the more
highly qualified candidate. On the question of
qualifications I consider that the V.E.C. in its
submissions did not support its argument that the
higher qualified person was appointed to this post.
5.25 In summary, I note that the V.E.C. argues that
potential managerial experience is all that it required
in relation to this appointment. In relation to the
appointee it said that he demonstrated this by his
membership (as a parent nominee) of a primary school
Board of Management. I consider that this placed a
requirement on the candidate that was not essential and
that this was a condition that could not be met the
claimant. Further the claimant had experience of "A"
and a "B" posts with the V.E.C. and has qualifications
in School Management. As a result, I am unable to
accept that there were valid objective reasons other
than her sex for the non-promotion of the claimant.
5.13 I note that the Court of Appeal for Northern Ireland in
the case of Wallace - v s - South Eastern Education and
Library Board (1980, IRLR, 193) found that - "Once
discrimination is proved, as it was in the present case, the fact
that the successful candidate was a man and the unsuccessful but
better candidate was a woman is itself evidence of discrimination on
grounds of sex."
Taking the finding of the Northern Ireland Appeal Court
into account and in view of the discrimination against
the claimant in that her experience and qualifications
were not accepted by the interview board, I am
satisfied that the claimant was discriminated against
on the basis of her sex. I am also satisfied that but
for the sex discrimination she would have been selected
for the "A" post. I find that the claimant was treated
less favourably on the basis of her sex within the
meaning of Section 2 of the Act.
I note that the claimant has objected to the fact that
this appointment was made known to the press. However I
note that all appointments made by the V.E.C. are
discussed and approved of at public meeting where the
press are in attendance so I consider that this was not
an exceptional occurrence in this instance.
6 RECOMMENDATION
6.1 I find that Co. Laois V.E.C. discriminated against Ms.
Higgins in terms of Section 2 of the Act and contrary
to Section 3 of the Act. Having found that Ms Higgins
was discriminated against by the V.E.C. on grounds of
her sex, the next question to be addressed is that of
remedial action. I note that the union has sought as a
remedy in this case that the claimant be appointed to
the "A" post in question and that she be compensated
for the stress occasioned by this case.
I consider that in deciding on a remedy in cases where
it has been established that discrimination has
occurred, it is appropriate, as far as possible to
place the person effected in the position which they
would have enjoyed had discrimination not occurred. In
this case I am satisfied that, had discrimination not
occurred, Ms Higgins would have been appointed to the
"A" post and, accordingly, I recommend that she be
offered such a post with effect from November 1994 -
when the other appointment was made - and that she be
paid in full the necessary adjustment in salary and any
other benefits applying to the post, accruing with
effect from that date. I further recommend that Co
Laois V.E.C. pay her a sum of £2,500 pounds in
compensation for the stress caused to her by this
discrimination.
I note that the existing post has already been filled,
and while I appreciate the difficulties my
recommendation will cause for the V.E.C. I consider it
the only proper remedy in this case.
______________________
Ms. Mary Solan Avison,
Equality Officer.
23rd July 1996