EMPLOYMENT EQUALITY ACT, 1977
EQUALITY OFFICER'S RECOMMENDATION NO. EE 10/1996
P A R T I E S
Ms. Marie Caffrey Hanrahan
{Represented by the Employment Equality Agency}
A N D
Principal/Board of Governors, St. Vincent's College
{Represented by Gerard J. Quinn & Co. Solrs}
The Department of Education
{Represented by the Chief State Solicitor}
1 DISPUTE
1.1 This dispute concerns an allegation by the claimant Ms
Marie Caffrey Hanrahan that she was discriminated
against on the basis of her sex contrary to the terms of
the Employment Equality Act, 1977 when an offer of an
appointment to St. Vincent's College in May 1991, made
by the Administrator of the Redeployment Scheme, was not
proceeded with following a successful appeal by the
college against it.
2 BACKGROUND TO DISPUTE
2.1 The claimant is a qualified teacher and she applied for
a transfer under the redeployment scheme for Catholic
secondary schools and was nominated for a teaching post
in St. Vincent's College, Castleknock under the terms of
this redeployment scheme. The college appealed this and
the Administrator of this scheme withdrew it. The
The Administrator
Redeployment Scheme for Catholic Secondary Schools
{Represented by BCM HANBY WALLACE}
File No. EE 66/91
claimant was subsequently advised that the post was
covered by Section 17 of the 1977 Employment Equality
Act.
2.2 The claimant alleges that St Vincent's College, the
Administrator of the Redeployment Scheme and the
Department of Education, discriminated against her on
the grounds of her sex by denying her access to
employment in St. Vincent's College and also by the
classification of a post by reference to sex, this post
not being covered by Section 17(2) of the 1977 Act,
contrary to Section 3 and in terms of Section 2 of that
Act.
2.3 The Employment Equality Agency acting on her behalf
referred this complaint to the Labour Court. The Labour
Court referred the case to an Equality Officer for
investigation and recommendation.
3 SUMMARY OF THE EMPLOYMENT EQUALITY AGENCY'S SUBMISSION
3.1 The Agency claims that the claimant is a Secondary
teacher and has been teaching since 1973. She has
taught from 1978 to 1992 in the C.B.S. School in Arklow
3
in County Wicklow. Her subjects are Senior Biology,
Senior Chemistry, General Science, Physics and Religion.
The Agency claims that the claimant lives in Naas,
County Kildare and thus she has a journey of sixty miles
each day to work which is a round trip of one hundred
and twenty miles.
3.2 The Agency says that in 1991 the claimant applied to be
placed on the Redeployment panel for transfer under the
redeployment scheme for Catholic secondary schools. She
did this with the agreement of her employer. She was
accepted for the panel on the 22nd of February, 1991.
3.3 The Agency claims that the claimant is a well qualified
teacher with a masters degree in science and
considerable teaching experience.
3.4 The Agency claims that the claimant was offered a
teaching post in St. Vincent's College, Castleknock on
the 20th May, 1991, in accordance with the scheme. The
Agency claims that the Principal of this college
appealed on the 24th May, 1991 against the appointment
of the claimant. He made this appeal to the
Administrator of the Redeployment Scheme. It says that
4
on the 27th May, 1991, the Administrator of the
Redeployment Scheme wrote to the Principal of St.
Vincent's College agreeing that it would not be
appropriate to assign the claimant to that school and
stated that the principal was now free to appoint Mr.A.,
the Principal's preferred choice.
3.6 On the same date the claimant was advised by letter from
the Administrator that her appointment was not being
made. Subsequently she was told that the basis for the
Administrator's decision was that the post in question
was covered by Section 17 of 1977 Employment Equality
Act.
3.7 The Agency alleges that St. Vincent's College, the
Administrator of the Redeployment Scheme and the
Department of Education discriminated against the
claimant on the grounds of her sex by implementing the
Redeployment Scheme so as to permit or provide for
(1) the denial to her for access to employment in St.
Vincent's College
(2) the imposition on her of discriminatory
conditions regarding transfer/redeployment
(3) the classification of a post by reference to sex
5
such posts not being covered by Section 17(2) of
the Employment Equality Act, 1977 and contrary to
Section 9 in terms of Section 2 and Section 3 of
that Act.
3.8 The Agency seeks as a remedy that adequate compensation
be paid to the claimant in respect of the discriminatory
treatment and that the respondents ensure in future that
teaching posts are not classified on the basis of sex.
4 SUMMARY OF THE SUBMISSION MADE ON BEHALF OF THE
DEPARTMENT OF EDUCATION
4.1 The Minister for Education claims that the complaint
made by the claimant does not come within the scope or
ambit of the Employment Equality Act, 1977.
4.2 The Minister for Education claims that she was not the
employer of the applicant within the meaning of Section
3, Paragraph 1 of the Employment Equality Act, 1977 and
therefore the employment or non employment of the
claimant has no application or relevance to the Minister
for Education.
6
4.3 The Minister for Education claims that she has not,
whether by act or omission or otherwise been guilty of
discrimination against the claimant within the meaning
of the Employment Equality Act, 1977 or at all.
4.4 The Minister for Education claims that she has not
sanctioned, authorised, or permitted whether by herself
her servants or agents or otherwise any act of
discrimination against the claimant within the meaning
of the Employment Equality Act, 1977 or otherwise.
4.5 The Minister claims that she is not a party to the said
scheme of redeployment which is the result of an
agreement between the religious/clerical authorities of
Catholic secondary schools and the Association of
Secondary Teachers of Ireland.
4.6 The Minister claims that the redeployment of the
claimant is a matter solely for the Administrator of the
scheme for Redeployment of Secondary school teachers in
accordance with the scheme and such acts in pursuance or
in purported pursuance of the operation of the scheme
are solely the responsibility of the said Administrator
and the authorities of the school concerned for which
7
they and not the Minister her servants or agents are
liable if at all.
4.7 The Minister for Education maintains that no employment
or prospective employment relationship existed between
the claimant and the Minister for Education and the
Minister is not properly a party to this claim.
4.8 Consequently the Minister claims that no claim properly
lies against the Minister in respect of any act or
omissions of herself, her servants and agents or in
respect of any alleged act of discrimination said by the
claimant to have been committed by other parties for
which the Minister is not in law responsible and
consequently the claimant is not entitled to any relief
as against the Minister for Education.
5 SUMMARY OF THE SUBMISSION MADE BY THE ADMINISTRATOR OF
THE REDEPLOYMENT SCHEME FOR CATHOLIC SECONDARY SCHOOLS
5.1 The Administrator claims that under the terms of this
scheme he is not an employer and does not exercise the
functions of an employer. By reason of the fact that
the Administrator is neither a employer nor a
8
prospective employer of the claimant Marie Caffrey
Hanrahan he claims that he does not come within the
ambit of Section 2 or Section 3 of the Employment
Equality Act, 1977.
5.2 The Administrator further claims to have no function
under the Scheme to do anything in relation to
employment which could constitute discrimination and he
denies that he comes within the ambit of Section 9 of
the Employment Equality Act, 1977.
5.3 The Administrator claims that he has not discriminated
against the claimant in any manner whatsoever, and each
and every particular or discrimination alleged is hereby
denied as if set forth and traversed seriatim.
5.4 The Administrator claims to rely on the terms of the
redeployment scheme and on the practices adopted in
relation to that scheme.
5.5 The Administrator refers in particular and without
prejudice to the preceding paragraph and expressively
denies that the redeployment scheme was intended to
create or does create legal relations or enforceable
9
rights and obligations, whether between the claimant and
the Administrator or between the Administrator and the
school in question namely St. Vincent's College,
Castlenock.
5.6 The Administrator with reference to the submission made
on behalf of the claimant denies that he is empowered to
appoint or that he did appoint or withdrew the
appointment of the claimant. He further denies that he
permitted St. Vincent's College, Castlenock, to withdraw
an offer of employment to the claimant.
5.7 The Administrator claims that he did not discriminate
against the claimant on the grounds of the claimant's
sex or marital status. The Administrator did not deny
the claimant access to employment at St. Vincent's
College, Castlenock, nor did he impose on her
discriminatory conditions regarding transfer or
redeployment.
5.8 The Administrator makes the point that the claimant's
claim against him as respondent does not come within the
ambit of the Employment Equality Act, 1977.
10
5.9 The Administrator claims that the only employment
relationship that existed or was in prospect was that
between the claimant and St. Vincent's College,
Castleknock, that the Administrator is not properly a
party to this claim and consequently the claimant is not
entitled to any relief as against the administrator.
Further the Employment Equality Agency is not entitled
to any relief as against the administrator.
6 SUMMARY OF THE SUBMISSION MADE ON BEHALF OF THE
PRINCIPAL/BOARD OF GOVERNORS OF ST. VINCENT'S COLLEGE,
CASTLENOCK
6.1 The College maintains that it has not discriminated
against the claimant as contended.
6.2 The College argues that the claimant's application for
inclusion on the redeployment panel and her acceptance
thereon required her agreement to the terms and
conditions thereof. It argues in this regard that the
Administrator of the Redeployment Scheme is the person
charged with the giving of approval to the making of
appointments from the redeployment panel to schools and
an assignment to a school under the said scheme derives
11
from a decision by the Administrator (and the sanction
of the Department of Education) and is binding on the
applicant. Thus it is the Administrator who determines
the suitability or otherwise of a teacher for
appointment from the Redeployment Panel.
6.3 The College maintains that the Redeployment scheme
permits a school to bring an appeal against a decision
of the Administrator as happened in this case. An
appeal was brought by St. Vincent's College in May 1991
to the Administrator, against the claimant's
appointment. This appeal was upheld by the
Administrator who subsequently appointed Mr. A. to the
said post with the sanction of the Department of
Education.
6.4 The College claims that it is not in breach of the
provisions of Section 2 or Section 3 of the Employment
Equality Act, 1977 because of the arguments already made
in paragraphs 6.2 and 6.3 above and also because of the
following
(a) Access to the said post was a matter for
Administrator/Department of Education and not the
college.
12
(b) The College did not impose any conditions on
the
claimant regarding her transfer/redeployment as
alleged or at all.
(c) The appointee's suitability for the post
derived
from his dedicated service to the College for over
ten years and his range of subjects including
mathematics, also his availability for extra
curricular activities including Dormitory
Supervisory Duties and the coaching of Rugby.
6.5 The College also argued that the claimant has not
provided any basis for her complaint of discrimination
and maintains that it is unclear what precise case is
being made against this respondent.
7 Equality Officer's Conclusions
7.1 In investigating this case I have taken into account all
the evidence available to me i.e. all the written
submissions made by the parties and further oral
submissions made in the course of a hearing attended by
them.
13
7.2 The Agency claims that the claimant was discriminated
against by the Department of Education, the Adminstrator
for the Redeployment Scheme for Catholic schools and St
Vincent's College Castleknock when she was not offered
an appointment in St Vincent's College, Castleknock in
May 1991.
7.3 The Minister for Education, argues that neither she nor
the Department of Education is the employer or the
proposed employer of the claimant and consequently no
claim can properly be brought against her or the
Department. While the Department pays the salaries of
the teachers it says that it only concerns itself with
their qualifications and experience, and whether or not
they are within "the quota" for the particular school.
It argues that although it pays the teachers' salaries
that it does not appoint them and is not their employer.
Both also argue that as there no employment or
prospective employment relationship existing between
them and the claimant that they are not properly a party
to this claim.
The Administrator of the Redeployment Scheme for
Secondary teachers also argues that he is not an
14
employer and points out that he has not the power to
make appointments or conversely to disallow appointments
made by the College. The Administrator argues that his
function is to facilitate both parties i.e. the schools
and the teachers. He says that the scheme that he
operates is not a statutory scheme and is not intended
to create legal relations.
The College argues that it is the Administrator who
determines the suitability or otherwise of a teacher for
appointment from the Redeployment Panel. It also argues
that the scheme allows for a school to bring an appeal
against a decision of the Administrator as happened in
this case. It argues that it did not impose any
conditions on the claimant regarding her transfer and
claims that the appointee's suitability for the post
related to his range of subjects including Leaving Cert
mathematics, also his availability for extra curricular
activities.
7.4 The matter for consideration here is whether or not the
claimant was discriminated against when the initial
offer of appointment in St Vincent's College in 1991 was
not proceeded with, and further, whether or not the
respondents to the claim discriminated against her by
15
classifying a post by reference to sex.
7.5 I note that the claimant was included on the panel of
teachers for redeployment by virtue of paragraph 1.9 of
the scheme which says;
"In exceptional circumstances, a teacher who holds
a permanent post, .... may apply to the
Administrator for inclusion on the panel...
and because the claimant was on this panel she was
notified of a vacancy in the college by the
Administrator. The college was also notified and
interviewed her for the post. However she was not
offered a formal contract of employment by the college.
7.6 I note that the college argues that it made an appeal to
the Administrator concerning the nomination of the
claimant because she did not meet the college's
requirement for a teacher of mathematics to Leaving
Certificate level. It pointed out to him that if the
claimant were appointed then Mr A. (a temporary teacher
who was subsequetly appointed) who taught mathematics to
this level would have to be dismissed as the biology and
chemistry vacancy would be filled by the claimant and no
longer be available for him.
16
It further argues that in February 1991 when this
vacancy was notified to the Administrator, a teacher
from Cappagh was nominated for the post. When that
teacher was withdrawn following an appeal by her school
the college assumed that Mr A. could be appointed. The
nomination of the claimant was not notified to the
school until 21th May 1991. Normally all these
appointments are finalised early in May each year.
Because of the time lapse the college had assumed that
it could go ahead and fill the vacancy with the
temporary teacher. Consequently it appealed this
nomination to the Administrator because of this delay in
finalising the appointment, because of the need to have
a Leaving Cert mathematics teacher and because there was
a suitable temporary teacher with the required subjects
and who had 10 years service in the school and
additionally carried out the duties of house master. The
Administrator agreed to this appeal and gave approval to
the college to appoint the temporary teacher. He
retained the claimant on the panel and offered her two
further nominations to vacant posts.
7.7 The claimant alleges that because a male was appointed
to the post in question that she was discriminated
17
against on the grounds of her sex. I have considered
this allegation. I note that the claimant had intimated
at interview that as she had not taught mathematics for
some years she was only prepared to take it on at first
year level and work it up over the coming years.
I consider, in relation to the subjects taught by both
by the claimant and the appointee that the College did
not discriminate against the claimant on the basis of
her sex. The college had a requirement for a teacher of
mathematics to Leaving Certificate Level and the
claimant did not have the relevant recent experience
necessary for this.
7.8 I note that the claimant alleges that the scheme should
have been binding on the parties. The Administrator
argues that his function is to match vacancies in
schools with suitable teachers from the redeployment
panel.
I note that in relation to this vacancy the
Administrator accepted two appeals, one from a school in
Cappagh which did not want to lose a teacher and one
from this college. The Administrator found another
vacancy some weeks later for the claimant which she
refused and a further one in 1992 which she accepted.
18
From the foregoing I consider that the Administrator
carried out his function of matching vacancies with
teachers on the redeployment list in a manner so as to
facilitate all parties.
7.9 As I have found that the claimant did not have the
required subject to fill the vacancy in St Vincent's
College due to her subject range I consider that the
allegation that the college discriminated against the
claimant in relation to section 17 of the Employment
Equality Act does not arise.
8. Recommendation
8.1 In view of my conclusions in paragraph 7 above I am
satisfied that the claimant was not discriminated
against when St Vincent's College did not proceed with
the Administrator's nomination of her for a post.
__________________
Mary Solan Avison
Equality Officer
15th May 1996
19
20