1 DISPUTE
EMPLOYMENT EQUALITY ACT, 1977
EQUALITY OFFICER'S RECOMMENDATION NO. EE 11/1996
P A R T I E S
The Employment Equality Agency
A N D
Department of Education
{Represented by the Chief State Solicitor}
The Administrator of
Redeployment Scheme for Catholic Secondary Schools
{Represented by BCM HANBY WALLACE}
Worker concerned Ms. Marie Caffrey Hanrahan
File No. EE 03/92
1.1 This recommendation concerns a reference by the
Employment Equality Agency under Section 20 of the Act
for an investigation of an allegation that Ms Marie
Caffrey Hanrahan was discriminated against on the basis
of her sex contrary to the terms of the Employment
Equality Act, 1977 when the Administrator of the
Redeployment Scheme withdrew her nomination for an
appointment to St. Vincent's College, Castleknock in May
1991.
2 BACKGROUND
2.1 The worker concerned is a qualified teacher who applied
for a transfer under the redeployment scheme for
Catholic Secondary schools. She was notified of a
teaching post in St. Vincent's College, by the
Administrator of this redeployment scheme under the
terms of the scheme. The college appealed and the
Administrator withdrew the nomination. The worker was
subsequently advised that the post was covered by
Section 17 of the 1977 Employment Equality Act.
2.2 The Agency alleges that the Administrator of the
Redeployment Scheme and the Department of Education
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procured discrimination against this worker on the
grounds of her sex by denying her access to employment
in St. Vincent's College and also by classifying 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 a complaint under section 19 of the Act to the
Labour Court. The complaint under Section 19 of the Act
has been dealt with under Equality Officer's
Recommendation No EE 10/1996. The Labour Court also
referred this further complaint to an Equality Officer
for investigation and recommendation.
3 SUMMARY OF THE EMPLOYMENT EQUALITY AGENCY'S SUBMISSION
3.1 The Agency claims that the worker concerned is a
Secondary teacher and has been teaching since 1973. She
taught from 1978 to 1992 in the C.B.S. School in Arklow
in Co. Wicklow. Her subjects are Senior Biology, Senior
Chemistry, General Science, Physics and Religion. The
Agency claims that she lives in Naas, County Kildare and
thus she has a journey of sixty miles each day to work
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which is a round trip of one hundred and twenty miles.
3.2 The Agency says that in 1991 the worker 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 worker is a well qualified
teacher with a masters degree in science and
considerable teaching experience.
3.4 The Agency claims that Ms Marie Caffrey Hanrahan was
offered a teaching post in St. Vincent's College, on the
20th May, 1991, in accordance with the scheme. The
Agency says that the Principal of this college, appealed
on the 24th May, 1991 against her appointment. He made
this appeal to the Administrator of the Redeployment
Scheme.
3.5 The Agency claims that 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 worker to that
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school and stated that the principal was now free to
appoint Mr.A., his preferred choice.
3.6 On the same date the worker 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 claims that the Department of Education
and/or the Administrator of the Redeployment Scheme
permitted St. Vincent's College, Castleknock to withdraw
the offer of employment to this worker on the grounds
that the nature of the employment in question brought it
within the scope of Section 17 of the 1977 Act and it
was therefore excluded from the principle of equal
treatment. The Agency argues that by applying the
Scheme in this manner, the respondents procured St.
Vincent's College to discriminate against the worker by
denying her the post in question, a post which is not
exempted from the principle of equal treatment by
Section 17.
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3.9 The Agency alleges the Administrator of the Redeployment
Scheme and the Department of Education procured
discrimination against the worker 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
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.
3.9 The Agency seeks as a remedy that adequate compensation
be paid to the worker 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 DEPARTMENT OF EDUCATION'S SUBMISSION
4.1 The Minister for Education claims that the complaint
made by the Agency does not come within the scope or
ambit of the Employment Equality Act, 1977.
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4.2 The Minister for Education claims that she was not the
employer of the worker concerned within the meaning of
Section 3, Paragraph 1 of the Employment Equality Act,
1977 and therefore the employment or non employment of
the worker has no application or relevance to the
Minister for Education.
4.3 The Minister for Education claims that she has not
whether by act or omission or otherwise been guilty of
discrimination against the worker 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 worker 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.
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4.6 The Minister claims that the redeployment of the worker
is a matter solely for the Administrator of the scheme
for the 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 school authorities concerned for which 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 worker and the Minister for Education and that 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
Agency to have been committed by other parties for which
the Minister is not in law responsible and consequently
the worker is not entitled to any relief as against the
Minister for Education.
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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
prospective employer of Ms 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, or otherwise, in relation to procuring
or attempting to procure any person to do, in relation
to employment, anything which constitutes discrimination
and the Administrator 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 worker in any manner whatsoever and each and
every particular or discrimination alleged is hereby
denied as if set forth and traversed seriatim.
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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
rights and obligations, whether between the worker and
the administrator or between the administrator and the
school in question namely St. Vincent's College,
Castleknock.
5.6 The Administrator with reference to the submission made
by the Agency denies that he is empowered to appoint or
that he did appoint or withdrew the appointment of the
worker. He further denies that he permitted St.
Vincent's College, Castleknock, to withdraw an offer of
employment to the worker.
5.7 The Administrator claims that he did not discriminate
against the worker on the grounds of her sex or marital
status. The Administrator did not deny the worker
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access to employment at St. Vincent's College,
Castleknock, nor did he impose on her discriminatory
conditions regarding transfer or redeployment.
5.8 The Administrator makes the point that the Agency's
claim against him as a respondent does not come within
the ambit of the Employment Equality Act, 1977.
5.9 The Administrator claims that the only employment
relationship that existed or was in prospect was that
between the worker and St. Vincent's College,
Castleknock, that the Administrator is not properly a
party to this claim and consequently the worker 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 Equality Officer's Conclusions
6.1 In investigating this case I have taken into account all
the evidence available to me i.e. the written
submissions made by the parties and further oral
submissions made in the course of a hearing attended by
them.
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6.2 The Agency claims that the Department of Education and
the Adminstrator for the Redeployment Scheme for
Catholic Secondary Schools procured discrimination
against Ms Marie Caffrey Hanrahan (hereinafter referred
to as the worker) when St Vincent's College, Castleknock
was allowed not to proceed with an appointment to a
teaching post in May 1991.
6.3 The Minister for Education, argues that neither she nor
the Department of Education is the employer or the
proposed employer of the worker and consequently no
claim can properly be brought against her or the
Department. The Department argues that although it pays
the teachers' salaries that it does not appoint them and
says that its concern is their qualifications and
experience, and whether or not they are within "the
quota" for the particular school. It is not their
employer. Both also argue that as there no employment
or prospective employment relationship existing between
them and the worker 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
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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.
6.4 The matter for consideration here is whether or not the
worker 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 procured discrimination against
her by classifying a post by reference to sex.
6.5 I note that the worker was included on the redeployment
panel of teachers under 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 worker was on this panel she was
notified of a vacancy in the college by the
Administrator. The college was also notified and
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interviewed her for the post. However she was not
offered a formal contract of employment by the college.
The college appealed this notification to the
Administrator, under the terms of the scheme, against
appointing the worker, because she did not meet the
college's requirement for a teacher of mathematics to
Leaving Certificate level. I note that it also pointed
out that this appointment would cause other problems in
relation to a temporary teacher employed by the college
who taught Mathematics to the required level and also
biology and chemistry. In its appeal to the
Administrator the college pointed out that it would have
to dismiss him as there would be no post available for
him when the biology and chemistry post was filled and
argued that he had the required subjects, 10 years
service in the school and additionally carried out the
duties of house master. The college also appealed on
the basis of the delay in notifying it of this worker as
it had understood that when a teacher from Cappagh was
nominated for the post in February 1991 and then
withdrawn following an appeal by her school the college
assumed that Mr A. (the appointee) would be appointed.
The nomination of the worker was not notified to the
school until 21th May 1991. Normally all these
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appointments are finalised early in May each year.
6.7 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 requirement
for a Leaving Certificate mathematics teacher and
because it had a suitable temporary teacher with the
required subjects. The Administrator agreed to this
appeal and gave approval to the college to appoint the
temporary teacher. The Administrator retained the worker
on the panel and offered her two further nominations to
vacant posts.
6.8 The Agency alleges that the respondents procured
discrimination against the worker on the grounds of her
sex, because she was denied access to employment in St.
Vincent's College, because discriminatory conditions
regarding transfer/redeployment were imposed on her and
that the post was classified by reference to sex.
6.9 I have examined these allegations. I note that the
worker said when interviewed for St Vincent's that as
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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 ensuing years. The college had a
requirement for a teacher of mathematics to Leaving
Certificate Level and I note that the worker did not
have the relevant recent experience necessary for this.
I consider, in relation to the subjects taught by both
by the worker and the appointee that there was no
discrimination against her on the basis of her sex.
6.10 In relation to the Agency's claim that discriminatory
conditions regarding transfer/redeployment were imposed
on the worker by the respondents I note the scheme for
the redeployment of lay teachers is established in the
context of an agreement between the Association of
Secondary Teachers, Ireland and the relevant
Religious/Clerical Authorities on Boards of management
and appropriate home/school links. The Administrator
carries out his function in line with the terms of this
scheme. I note that the terms of the scheme at para 4.5
state that
" Having established that a particular vacancy is
suitable for a particular teacher, the Administrator
shall, without delay, inform the management of the
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school concerned that the vacancy is deemed suitable for
a named teacher. The Administrator shall inform
simultaneously the management of the school from which
the teacher is being redeployed". The Administrator did
this and also notified the worker. The Administrator
did not enter into a contract with the worker and the
college appealed the Administrator's decision prior to
issuing a contract to her. The main grounds of appeal,
as I have already outlined above, were because the
worker did not have senior Mathematics which was a
necessary subject and a secondary issue, the need to
have a teacher who could perform the duties carried out
at that time by the teacher she would replace if she
were appointed. The Administrator accepted the appeal
made by the college concerned and permitted the college
to appoint another teacher (a male). The Administrator
then nominated the worker for appointment to another
school. I do not consider that the respondents procured
discrimination against the worker when the Administator
did not insist on the College proceeding with the
appointment.
6.11 In relation to the allegation that the post was
classified in relation to sex I note that the school
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referred to Section 17 of the 1977 Act in its appeal to
the Administrator. Having regard to the submissions
made by the respondents in this case I consider that the
main reason that a contract was not entered into with
the worker was because she did not have the required
subject. This reference to Section 17 of the Act (which
the college did not include in the submission to defend
itself against the complaint referred to in Para 2.3
above, Rec EE 10/1996 refers) was in my opinion merely
an additional arguement to ensure that success of its
appeal to the Administrator. As I have found that the
worker did not have the required subject to fill the
vacancy in St Vincent's College I consider that the
allegation that the respondents procured discrimination
against the worker in relation to section 17 of the
Employment Equality Act does not arise.
6.12 I note also that the Agency argues that the decisions of
the Administrator 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.
Para 8.3 of the redeployment scheme states;
The Administrator shall have sufficient authority to
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make decisions following a full investigation of
representations made to him/her in relation to any
proposed appointments...
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 worker which she
refused and a further one in 1992 which she accepted.
From the foregoing I consider that the Administrator
carried out his function of matching vacancies with
teachers on the redeployment list in a manner to
facilitate all parties.
6.13 I note that the Department of Education submitted to
this investigation a document which purported to be an
extract of minutes of a meeting held on the 16th May
1991 where references to instances of possible
discrimination were made in relation to events occuring
prior to that date. I am satisfied that the appeal
complained of by the Agency (and the subject of this
investigation) was made on the 24th May 1991. As this
issue under investigation occurred after the date of
that meeting, I consider that this document does not
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relate to it and accordingly I do not propose to
consider it in relation to this investigation.
7. Recommendation
7.1 In view of my conclusions in paragraph 6 above I am
satisfied that the worker 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
20
15th May 1996
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