FULL RECOMMENDATION
SECTION 77, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : A BOYS' SECONDARY SCHOOL (REPRESENTED BY ARTHUR O'HAGAN SOLICITORS) - AND - A FEMALE TEACHER OF RELIGION (REPRESENTED BY BCM HANBY WALLCE) DIVISION : Chairman: Mr Duffy Employer Member: Mr Keogh Worker Member: Mr O'Neill |
1. Alleged unfair dismissal under Section 77 of the Employment Equality Act, 1998
BACKGROUND:
2. The complainant claims to have been dismissed from her employment with the respondent in circumstances which amount to discrimination and/or victimisation for the purpose of Section 77(2) of the Employment Equality Act 1998 (the Act).
The complainant commenced employment with the respondent as a temporary wholetime teacher of religion in August, 1995. Her employment was consequent upon the long term absence of a permanent wholetime teacher from the school. By letter dated 8th September, 2000, the complainant resigned her employment after the teaching hours allocated to her were reduced from 21 per week to 5 per week.
The complainant, together with another teacher at the school, had instituted proceedings against the respondent under the Employment Equality Act, 1977, alleging sexual harassment by students at the school. Both teachers also claimed to have been penalised for having brought those proceedings.
That case was investigated by an Equality Officer who issued his Recommendation in January, 2001. That Recommendation was appealed to the Court and in respect of which appeal Determination No. DEE021 was issued simultaneously with this Determination. By agreement between the parties, the evidence adduced at the hearing of that appeal, in so far as is relevant, has been taken into account in considering the instant case.
Labour Court hearings took place on the 29th of June and the 20th of September, 2001.
As well as the extensive submissions of the parties, the Court was also provided with a complete file of correspondence passing between the respondents and the Department of Education and Science in relation to the allocation of teaching hours to the respondents in the school years 1999-2000 and 2000-2001. The Court was also assisted greatly by the evidence of the Principal Officer of the Post Primary Section of the Department of Education and Science in relation to the events surrounding those allocations.
From all of the information provided the following factual background can be ascertained.
Academic Year 1999/2000.
By letter dated the 30th April, 1999, the respondents wrote to the complainant stating that the Department of Education and Science had confirmed that the permanent teaching post previously held by a full time teacher would "cease to exist on August 1st due to a reduction in pupil numbers". The letter went on to inform the complainant that the Board of Management was unable to offer her that teaching post in 1999/2000. The respondents indicated that the school was appealing the decision of the Department to abolish the post and that if the appeal was successful the Board of Management would consider her for the position.
The complainant responded pointing out that she had been employed for the previous five years and contended that the question of "considering her for the position" did not arise. The school contended that the nature of her employment was such that she was employed on a series of short-term contracts which were subject to renewal. The complainant had never previously been required to re-apply for her post.
The complainant set out in writing a case for the retention of her post, which was supplied to the respondents for forward transmission to the Department of Education and Science. The Assistance General Secretary of ASTI, the complainant’s trade Union, also wrote to the Department supporting the school's case for the retention of the previous hours allocation in respect of the complainant.
The Department of Education and Science acceded to the request for the allocation of 21 hours per week in respect of the complainant and it appears that the respondents were so informed on the 21st July 1999. At that stage, the complainant was under notice that her employment would terminate on the 1st August, 1999. Yet, the respondents did not inform the complainant that her job had been saved. This information was, however, communicated to the Union in response to its representations.
It would appear that by that stage the relationship between the complainant and her Trade Union on the one part and the respondents on the other had so deteriorated that correspondence was being conducted through solicitors in relation what would normally be regarded as industrial relations issues.
On the 21st July, 1999, (the date on which the Department of Education made known its decision to allocate the required teaching hours to the school) the Solicitors acting for the complainant wrote to the respondent’s Solicitors effectively demanding that the complainant’s employment be continued. They threatened injunction proceedings if they did not receive an immediate positive response.
The respondent did not reply to that letter. On the 27th July, the complainant’s Solicitors again wrote indicating that unless they received confirmation by 5 pm on that evening that the complainant’s employment would not be terminated on 1st August, they would apply to the High Court for an interlocutory injunction restraining her dismissal. In the event, the confirmation sought was received from the school’s solicitors at 5.41pm on the 27th July.
The respondents wrote to the complainant on the 9th August advising her that her employment would continue for the next academic year and asking her to sign a new contract, which excluded the provisions of the Unfair Dismissals Act, 1977. Further correspondence ensued in relation to the school's right to change the contractual terms. However, by the 27th of August the claimant had decided to sign the contract.
It would appear that the respondents were concerned at the fact that the complainant came to know that the Department of Education and Science had effectively sanctioned the continuation of her post. This is evident from a letter written by the respondents to the Secretary of the Department dated 25th August, 1999. In this letter, the respondents claims not to have been informed of the decision on the 22nd July, 1999. They go on to state that this privileged information was communicated to a third party or parties well in advance of that date. The Department replied on the 6th September, 1999, pointing out that the Principal of the respondents had been advised of the decision on the 21st of July, and that the ASTI was subsequently informed in response to its representations in the matter.
Events of 2000/2001
On the 3rd April, 2000, the complainant wrote to the respondents expressing concern in relation to her employment situation for the following academic year. The respondents replied on the 5th April stating that the concessionary hours might not issue from the Department of Education and Science for some weeks, if not months. They went on to instruct the complainant that in further she should communicate directly with the School Principal in his office in the presence of the School Secretary. The complainant replied by letter dated 11th April, 2000, and sought confirmation that the respondents had in fact sought a curriculum concession for religious education. The complainant received no reply to this letter until the 28th July, 2000, when she was informed that only 5 hours per week had been allocated.
In May, 2000, the manner in which the Department of Education and Science had communicated its decision in relation to the allocation of teaching hours for religious education the previous year was again raised by the respondent. In a letter to the Department dated 9th May, 2000, the respondents sought to avoid a repeat of what occurred in July, 1999, when the allocation of teaching hours was made specific to the complainant. This letter is significant. In relevant part it reads as follows:
- "In relation to religious education, Ms Shine telephoned me at home to inform me that the 21 hours were being approved for [the complainant] in the RE department.
As you are aware it is a matter for the school authorities to decide who should be appointed or reappointed to this EPT post.
The Board would appreciate a thorough investigation of this matter as a matter of urgency so that problems of this nature may be avoided in the present academic year".
By letter dated 18th May, the respondents wrote to the Department revising their previous application in respect to the allocation of teaching hours overall. In this letter, the respondents referred to a telephone call from the Department suggesting that they were two teachers over quota for 2000/2001 and that the allocation of teaching hours would have to be revised. The respondents further stated that they wished to amend their application for concessionary hours and that the priority was now to ensure that the maximum hours are sanctioned for physical education, bearing in mind that the school has only one post in this key area. They went on to say that they had revised their requirement for religious education hours to 5 hours per week.
The Department approved the allocation of hours requested by the respondents and they were so informed by letter dated the 19th of July 1999. Again, the complainant was not informed of the position at that stage.
On the 26th July, 2000, the respondents made further representations to the Department seeking additional hours to cover the classes taken by a member of staff who had been promoted to Vice Principal. There was further correspondence in this matter dated 31st July in which the respondents made a strong case for additional hours in the teaching of English. In this letter they went on to say that the allocation of 167 hours for religious education and 735 hours for physical education is entirely adequate. It appears this application for additional hours was successful.
On the 28th July, 2000, the complainant was informed that her teaching hours had been reduced to 5 hours per week. Correspondence then ensued between the her Solicitors and the school.
By letter dated the 18th August, 2000, the complainant's Solicitor wrote to the Solicitor for the respondents. They pointed out that the complainant could not survive on the number of teaching hours allocated to her. They also referred to the fact that the school had advertised for three additional posts despite effectively suppressing the complainant’s post. There was no reply to this letter.
On the 30th August, 2000, the complainant approached the School Principal and enquired as to whether he would be inviting her to teach for more than 5 hours per week. The Principal refused to discuss the matter, and told the complainant she had Solicitors and to let them deal with the matter.
In the meantime the ASTI became involved. The Assistant General Secretary of the Union approached the Department and was advised that if an application were made for additional hours for religious education, it would be looked upon favourably. This was apparently communicated to the Chairman of the Board of the respondents, and the Principal was invited to write to the Department seeking the additional hours. He did so by fax dated the 31st August, 2000, (the day before the school was due to open for the new academic year)
The application was hand written on a fax cover sheet.
The Principal Officer of the Department told the Court that no case had been made (other than the request) as to why the school had altered its previous position, and that at that stage it would have been difficult to find the additional hours. In the event, the request was not acceded to.
Burden of Proof.
The burden of proof borne by parties in cases involving discrimination on grounds of gender is now regulated by the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001.
Article 3(1) of the Regulations, which transposed Article 4 of Council Directive 97/80/EC of 15th December 1997, provides as follows
- "3(1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that there has been direct or indirect discrimination in relation to him or her, it shall be for the other party concerned to prove the contrary"
- "[A] claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
It is only if these primary facts are established to the satisfaction of the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
On the evidence before, it the Court is fully satisfied that there is sufficient factual material from which it may be presumed that there has been discrimination in relation to the complainant in the manner in which her hours of work were reduced. In particular, the Court is satisfied that a reasonable employer, acting bona-fide in a matter affecting an employee's continued employment, would not have behaved as the respondent did in relation to the complainant.
The Court is further satisfied that the reduction in the weekly working hours allocated to the complainant from 21 to 5 constituted a dismissal as defined by Section 2(1) of the Act.
In these circumstances, the evidential burden is on the respondents to provide a reasonable explanation for their conduct unconnected to the proceedings taken by the complainant under the Act of 1977. No such reasonable explanation has been provided to the satisfaction of the Court. As the presumption of discrimination had not been rebutted the complainant is entitled to succeed.
DETERMINATION:
The Court holds that the complainant herein was constructively dismissed in circumstances amounting to victimisation within the meaning of Section 74(2)(a) and (b)of the Act. The Court further determines that the appropriate redress is an award of compensation. The Court measures the amount which is fair and reasonable in all the circumstances at euro 13,000. An order will be made against the respondent in that amount.
Signed on behalf of the Labour Court
Kevin Duffy
29th January, 2002______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.