Bleach -v- Our Lady Immaculate Senior School & The Department of Education and Science
1. CLAIM
This case concerns a claim by Ms. Josephine Bleach that the Board of Management of Our Lady Immaculate Senior School, Darndale and the Department of Education and Science discriminated against her on the gender ground in terms of section 6(2)(a) of the Employment Equality Act, 1998 and in contravention of section 8(1)(d) of the Act in relation to the selection process for promotion to the post of Special Duties Teacher. She also claims that by being ranked seventh in terms of Special Duties positions allocated, she has been victimised in terms of section 74(2) of the Act for having appealed the results of previous competitions.
2. BACKGROUND
2.1 In March 2000, there were vacancies in Our Lady Immaculate Senior School for seven Special Duties Teacher posts and there was also a vacancy for the post of Acting Deputy Principal. A Special Duties Teacher post is the most junior post of responsibility in the school management structure and a holder of such a post has responsibility for particular duties. The complainant applied for all seven Special Duties posts incorporating responsibility for seven different areas and for the post of Acting Deputy Principal.
2.2 There were nine candidates (two males and seven females) for the posts of Special Duties Teacher. The complainant was ranked seventh and the two male candidates were ranked first and second. The complainant claims that she was more senior and more experienced than the two male teachers who were ranked first and second and believes that her commitment, willingness, capability and interest in the positions was at least as great as that of the two male teachers. The complainant alleges that she was discriminated against on the gender ground in the selection process. She states that she is disadvantaged by being placed seventh as short term acting Assistant Principal (a higher post of responsibility) posts would be offered to the person who was ranked first. She submits that by being ranked seventh, she has been victimised for having previously appealed the results of earlier competitions.
2.3 The complainant referred a claim to the Director of Equality Investigations on 3 October 2000 under the Employment Equality Act 1998. On 6 March 2001, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act (The case had previously been assigned to another Equality Officer). A written submission was received from the complainant on 28 November 2000 and from the second named respondent on 5 January 2001. Notwithstanding that numerous requests were made by the Equality Officer, the first named respondent did not forward a submission. A preliminary hearing was held on 8 January 2002 to make arrangements for the provision of relevant information in relation to the claim. A submission was eventually received from the first named respondent on 17 June 2002 and a hearing in relation to the claim was held on 27 June 2002. As an issue arose at that hearing in relation to the constitution of the interview board, it became necessary to hear evidence from a third party witness. A supplementary hearing to hear evidence from that witness was held on 17 September 2002. Material (including the CVs of candidates) requested from the first named respondent was received on 15 October 2002. Following the receipt of written submissions on the matter of the employer of primary school teachers, a supplementary hearing in relation to that particular matter was held on 4 March 2003.
3. SUMMARY OF COMPLAINANT'S SUBMISSION ON THE SUBSTANTIVE MATTER OF DISCRIMINATION AND VICTIMISATION
3.1 The complainant claims that she has been discriminated against on the grounds of her gender in terms of sections 6(1) and 6(2) of the Employment Equality Act, 1998. She also claims that she has been victimised in terms of section 74(2) of the Act for appealing previous decisions of the Board of Management of the respondent school. She claims that she has been discriminated against by the respondents in relation to the following:
(i) the manner in which the Special Duties Teachers positions were filled by the respondents;
(ii) the respondent's failure to appoint the complainant to the first special duties position in accordance with her seniority, qualifications and experience, interest, willingness and capability;
(iii) the respondent's grading of less suitably qualified, less experienced and less senior teachers ahead of the complainant.
3.2 In March 2000, there were seven vacancies for Special Duties posts (a post of responsibility) and a vacancy for an Acting Deputy Principal position. The complainant applied for all seven Special Duties posts and for the post of Acting Deputy Principal. She submitted a C.V. in respect of her application and was interviewed on 29 March 2000. There were nine candidates (two males and seven females) for the posts of Special Duties Teacher. There were two candidates for the post of Acting Deputy Principal, the complainant and a male teacher. The Board of Management met on 3 April 2000 to ratify the appointments to the positions and a notice was placed on the notice board in the staff room the following day. The complainant was informed by letter dated 3 May 2000 that she was being offered the seventh Special Duties post in the area of Nature/Science and Audio/Visual equipment.
3.3 The complainant claims that she was discriminated against on the grounds of gender and is disadvantaged in respect of future short-term acting up positions by being placed seventh as a short-term acting up position to Assistant Principal would in the first instance be offered to the teacher who holds the Special Duties number 1 position. She also claims that she was victimised for having previously appealed, in good faith and on gender grounds, decisions of the Board of Management in relation to appointments to promoted positions.
3.4 The candidates were assessed under three headings in accordance with a
Department Circular (6/97) which applied to promotions at that time and dealt with revised in-school management structures in primary schools. The three headings under which candidates were assessed were:
(i) capability and willingness to undertake the duties attaching to the post;
(ii) length of service or experience in the school;
(iii) interest in a particular area within the list of duties.
The complainant claims that she was the most senior of all applicants for the Special Duties position and therefore should have received the most marks under the second heading. The complainant also claims that she was capable and willing to undertake the duties attaching to all posts and that she had an interest in all the areas within each of the lists of duties. She considers that her placement in seventh position does not adequately reflect her seniority, interest, willingness and capability to do the job.
3.5 The complainant claims that she was more senior and more experienced than the two male teachers who were ranked first and second and believes that her commitment, willingness, capability and interest in the positions was at least as great as that of the two male teachers. The complainant demonstrated her commitment, willingness, capability and interest continuously in the school and has an excellent track record in the school in relation to involvement in school activities, both curricular and administrative. She also believes that she answered in a competent manner the questions that were put to her at interview. She claims that there is a pattern of discrimination against females in appointments to posts of responsibility. She refers to competitions in 1998 and 1999 and submits that male teachers have been successful in obtaining a rank order higher than the female candidates. The complainant submits that the statistical evidence and the pattern of discrimination causes the burden of proof to shift to the respondents to prove that their failure to appoint her to the first Special Duties post can be justified on objective grounds other than gender.
Victimisation
3.6 The complainant is claiming that by being ranked seventh, in terms of Special Duties positions allocated (which places her at a disadvantage in relation to short-term Acting up positions), she is being penalised for appealing previous decisions of the Board of Management in relation to appointments to posts of responsibility. In September 1998, the complainant appealed the appointment of a male candidate to the Acting Assistant Principal's position resulting from a competition held in June 1998.
The complainant's appeal was upheld. In June 1999, the complainant appealed
appointments to the posts of Special Duties teacher and Acting Deputy Principal following interviews which were held in May 1999 and June 1999 respectively. The complainant's appeal was upheld. The complainant claims that the fact that she was ranked seventh in her application for a Special Duties post in the competition in 2000, having been ranked in the top two in June 1998 amounts to discrimination on the grounds that she appealed the outcome of the selection processes.
3.7 Following her first appeal of the selection process for the Assistant Principal post, on the basis that correct procedures were not followed and that she was discriminated against on grounds of her gender, she was ranked sixth in the next interview for Special Duties posts. She failed to be appointed to a post the next time and having appealed that decision, she was subsequently appointed to a position of Special Duties teacher, but given the most junior ranking, even though she is the most senior and the better qualified and experienced of all the candidates. She claims that this act of discrimination is part of a pattern of victimisation which began after the claimant appealed, on the basis of gender, the outcome of the selection process for Acting Assistant Principal in September 1998.
4. SUMMARY OF THE FIRST NAMED RESPONDENT'S SUBMISSION ON THE SUBSTANTIVE MATTER OF DISCRIMINATION AND VICTIMISATION
4.1 The first named respondent denies that the complainant was discriminated against either directly or indirectly on grounds of gender or otherwise in the conduct of the interview for the position of Deputy Principal and Special Duties post or in the manner in which the complainant was appointed to a Special Duties post ranked seventh.
4.2 The first named respondent submits that no or no sufficient evidence has been submitted by the complainant to discharge the burden of proof which is placed on her.
If, which is denied, she has discharged the burden of proof placed on her, then the first named respondent submits that there is evidence of the appointments made by them having been for objective and non-discriminatory reasons. The first named respondent accepts that they and not the second named respondent are the complainant's employers for the purposes of this case.
4.3 The first named respondent submits that the complainant's attempts to rely on the previous interviews and appointment processes and the outcome of same in making her case under the 1998 Act is improper and inconsistent with the Determination of the Labour Court in March 2001 that she was out of time other than in relation to the interview of March 2000. The complainant's view that there is a pattern of discrimination against females in the appointment of teachers to posts of responsibility within the school is a subjective view that is not supported by the facts or by any relevant statistical analysis.
4.4 The markings conferred on each of the applicants for each of the positions are consistent. The complainant's ranking did change sometimes in each of the competitions depending on the other candidates but her own marks were consistent. In relation to the complainant's claim that she was the more experienced and senior candidate, the first named respondent submits that all candidates were given full credit for seniority but were also assessed under the other two categories. Therefore, the fact that a less senior person who was male was ultimately appointed does not establish evidence of a pattern of gender discrimination.
4.5 In relation to the claim of victimisation, the first named respondent denies that the complainant was treated in any less favourable way as a result of having appealed previous selection decisions. It submits, without prejudice thereto, that there is no claim of victimisation or penalisation open to the complainant as there is no evidence of her having opposed any act which is unlawful under the 1998 Act. It submits that none of the complainant's appeal grounds relate in any way to her gender.
4.6 The first named respondent does not accept the complainant's contention that she was as well if not better qualified than the candidates who were ranked higher than her. The respondent submits that there are objective and non discriminatory reasons for the manner in which the complainant was ranked and in that regard, the respondent relies on the details of the questions asked to each candidate, the interview notes and the marking sheets of the interview board.
5. SUMMARY OF THE COMPLAINANT'S SUBMISSION ON THE ISSUE OF THE EMPLOYER OF PRIMARY SCHOOL TEACHERS
5.1 The INTO maintains that the Department of Education and Science is a joint employer of teachers in nationals schools for the following reasons:
(i) The Department of Education is a party to the contract of employment between the Board of Management and the teacher. The appointment of a teacher by a Board is subject at all times to sanction and approval by the Department and to the Rules for National Schools which are enforced by the Department and contain provisions (inter alia) for the discipline of teachers.
(ii) The EAT held in the case of Cecilia Mc Govern -v- The Department of Education UD554/1989 that the teacher was employed by the Board of Management, as agent for the Minister for Education.
(iii) The Labour Court held in the case of The Employment Equality Agency -v- The Department of Education that the Department was the employer for the purposes of the Anti-Discrimination (Pay) Act, 1974 because it:
'fulfils the major function of an employer in that it pays the remuneration of teachers in National Schools, including pensions and survivor's benefits and paid the remuneration of Mrs. Candon.'
(iv) Section 15(2) of the Education Act, 1998 states that 'A Board shall perform the functions conferred on it and on a school by this Act and in carrying out its functions the board shall -
(a) do so in accordance with the policies determined by the Minister from time to time,...'
(v) The Employment Equality Act, 1998 deems the employer in the case of agency workers to be the person liable for their pay. The logic of this definition at the least indicates that the paymaster has an employment role.
(vi) The 'Constitution of Boards and Rules of Procedure' for Boards of Management under the heading "The Appointment of Teachers" states that all appointments as teachers in the school shall be made by the Board of Management in accordance with the Rules for National Schools and subject to the prior approval of the Patron and of the Minister for Education.
(vii) A post of responsibility can only be offered to successful candidates subject to the sanction of the Department in accordance with its Circulars. In this case, the Department brought the Board of Management's attention to the fact that it had appointed too many teachers to posts of responsibility in December 1998 and it, therefore, refused to sanction the appointments.
(viii) The High Court case of Tobin v. The Secretary of the Board of Management of Mayfield Community School and the Minister for Education refers to the employment of vocational teachers. Different conditions apply to the employment of such teachers. Therefore, the Tobin case does not relate directly to primary schools. Mr. Justice Kearns conclusions in that case that the Minister was not the employer was made in the context of his finding that the 'requisite public law element' was present and he therefore did not consider further 'the extent to which the Minister may of necessity be involved by way of consultation, sanction or otherwise in the dismissal of a community school teacher.' He also stated that he made his decision on the material presented to him in that specific case.
(ix) The Labour Court case of Marian Shiels O' Donnell -v- The Board of Management of St. Baithin's N.S. and the Department of Education and Science concurred with the EAT decision in the Cecilia Mc Govern case referred to at (ii) above. In conclusion, the INTO maintains that the Labour Court finding in the Shiels O' Donnell case is the relevant decision where the matter of the employer of primary teachers is concerned.
6. SUMMARY OF THE FIRST NAMED RESPONDENT'S SUBMISSION ON THE ISSUE OF THE EMPLOYER OF PRIMARY SCHOOL TEACHERS
6.1 The first named respondent notes the judgment of the High Court case of Tobin and in particular the conclusion reached by Mr. Justice Kearns that the appellant was employed by the Board of Management of Mayfield Community School. The first named respondent also notes the decision of the Labour Court in Shiels O' Donnell which followed the decision of the EAT in Mc Govern.
6.2 The first named respondent cites section 24 of the Education Act 1998 which was referred to in the Labour Court decision in Shiels O' Donnell. Section 24(1) of the Act confers on a Board of Management the power to appoint teachers 'as the Board from time to time thinks necessary for the performance of its powers and functions under [the] Act.' Section 24(2) states that the number and qualifications of teachers employed in a school who are to be paid by monies proved by the Oireachtas are subject to the approval of the Minister for Education and Science with the concurrence of the Minister for Finance. Section 24(3) gives statutory power to the Board to appoint and dismiss teachers in accordance with the procedures agreed from time to time between the Minister, the patron, recognised school management organisations and any recognised trade union and staff association representing teachers or other staff as appropriate. Section 24(4) stipulates that pending the agreement of procedures referred to at 24(3), the procedures applied immediately before the commencement of the section shall continue to be applied. The first named respondent is of the view that the Education Act, 1998 makes it very clear that at the very least for the purposes of appointment and dismissal, the Board of Management of a recognised school is the employer.
6.3 The first named respondent also refers to the case of Gerard Moore v. The Board of Management of Holy Child National School (UD53/2000). Mr. Moore was a national teacher who sued the Board of Management and Patron for unfair dismissal. As part of its findings, the Tribunal rejected the argument that the Minister for Education and Science had any role to play in the dismissal of a teacher . The Circuit Court Judgment (29 July 2002) upheld the decision of the EAT and rejected the appeal. In the course of the hearing, Judge Mathews considered the role of the Minister for Education and Science in the dismissal of a teacher and found that the Minister had no role in that regard. In ruling the matter as he did, Judge Matthews effectively determined that the Board of Management was the employer.
7. SUMMARY OF THE SECOND NAMED RESPONDENT'S SUBMISSION ON THE ISSUE OF THE EMPLOYER OF PRIMARY SCHOOL TEACHERS
7.1 The Department of Education and Science states in its submission that it is not the employer of primary teachers and that teachers are employed at school level by the Board of Management which manages each individual national school. In this context, Rule 15(1) of the Rules for National Schools states that the Board of Management of a school is charged with the direct management of the school including the appointment of teachers. All appointments are made by the Board of Management and as such, the contract of employment is made between the Board of Management of the school, as employer, and the teacher.
7.2 It states that all appointments are subject to the approval of the Patron and of the Minister for Education and Science. It states that the Minister's function in the appointment of teachers is to sanction the appointment made by the Board of Management provided the person proposed is suitably qualified and that the appointment is in accordance with the Rules for National Schools. The Department has no other function in the actual appointment of primary teachers.
7.3 The Department's position is that the Minister is not the complainant's employer. The complainant is employed under a contract of employment with the Board of Management of Our Lady Immaculate Senior National School. The Minister is not party to the contact and is accordingly not properly a party to this complaint. The Minister's role in relation to teachers is confined to paying teachers' salaries and superannuation benefits, determining the terms and conditions of employment and determining the required level of teacher qualifications. The Board of Management of the school is primarily responsible for recruitment, selection, appointment, discipline and dismissal of teachers and in carrying out these functions, the Board does not act as agent of the Minister. Authority for the Department's position can be found in both statute and case law.
7.4 Section 24(3) of the Education Act, 1998 leaves no room for doubt that it is the Board of Management which has responsibility for appointing 'teachers and other staff' of a school. The Minister's role in this regard is confined to agreeing procedures along with the other partners in education and setting down, with the agreement of the Minister for Finance, the terms and conditions of employment. Like the other partners in education, the Minister does not have any power to set down these procedures unilaterally. Nor is he responsible for how these rules are applied. It is the Board of Management which is responsible for the appointment of teachers, including their appointment to special duties posts as in this case. In carrying out those functions, the Board does not act as agent for the Minister.
7.5 The case of Tobin v. The Minister for Education and Science concerned a challenge to his dismissal by a former teacher of Mayfield Community School. Although community schools, unlike national schools, are governed in accordance with a Deed of Trust and Instrument of Management, the relationship between the Board of Management and the Department is almost identical in relation to employment issues. The Department fully accepts the ruling of Mr. Justice Kearns in that case that the applicant was employed by the Board of Management and not the Minister.
7.6 The relationship between the State and schools is not confined to Statute. Its relationship derives from provisions in our Constitution. The State has a Constitutional obligation under Article 42.4 to provide for free primary education. It 'discharges this obligation by paying teachers in the national schools owned by the Churches, by making grants available for the renovation, repair and, at times, building of national schools, by paying for heating and for school books and by the provision of a proper curriculum and appropriate supervision.' - per Mr. Justice O' Higgins CJ in the Supreme Court ruling of Crowley v. Ireland [1980] IR 102. In the same case, Mr. Justice Kenny stated that the 'Constitution must not be interpreted without reference to our history and to the conditions and intellectual climate of 1937 when almost all schools were under the control of a manager or of trustees who were not nominees of the State. That historical experience was one of the State providing financial assistance and prescribing courses to be followed at the schools; but the teachers though paid by the State, were not employed by and could not be removed by it: this was the function of the manager of the school who was almost always a clergyman.' The same fundamental relationship continues to operate today.
7.7 In the instant case, it is difficult to see on the facts how the Minister could fairly be held to have acted in breach of the Employment Equality Act, 1998. The Board of Management advertises, selects and appoints the teacher for the post. The teacher enters into a contract to undertake the duties of the post to which he or she has been appointed. The Minister has no role in this process. Once appointments are made, the Board notifies the Department's Primary Payments Section in order that the teacher can be paid the post of responsibility allowance. In this case, the Minister had no knowledge that applications were being sought and interviews held until such time as the process had been completed and notification issued to the Department to include payment for these allowances to the successful appointees. Given the Department's lack of involvement in the selection process, it is not in any position to defend itself against complaints which should more properly be directed solely to the Board of Management.
8. CONCLUSIONS OF THE EQUALITY OFFICER
8.1 In the claim referred, I must consider whether or not the first and second named respondents discriminated against the complainant on the gender ground in terms of section 6(2)(a) of the Employment Equality Act, 1998 and in contravention of section 8(1)(d) of the Act in relation to the selection process for promotion to the posts of Special Duties Teacher. I must also consider whether by being ranked seventh in terms of special duties positions allocated, the complainant has been victimised in terms of section 74(2) of the Act for having appealed the results of previous competitions. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
Issue of the employer for the purposes of these proceedings
8.2 As a preliminary matter, I must consider the issue of the appropriate employer of primary school teachers. 'Employer' is defined in the Employment Equality Act, 1998 as meaning in relation to an employee, 'the person with whom the employee has entered into or for whom the employee works under .... a contract of employment'. The complainant submits that the Department of Education together with the Board of Management of each school is a joint employer of teachers in national schools. The Department of Education and Science states in its submission that it is not the employer of primary teachers and that teachers are employed at school level by the Board of Management which manages each individual national school and it submits that section 24(3) of the Education Act, 1998 leaves no room for doubt on the matter. The Board of Management also submits that the Education Act, 1998 makes it very clear that for the purposes of appointment and dismissal, the Board of Management of a recognised school is the employer.
8.3 The 'Rules for National Schools' and 'The Constitution of Boards and Rules of Procedure' for Boards of Management have been referred to and I have considered the non-statutory basis of these documents. First and foremost, I must have regard to the Education Act, 1998. Section 2 of the Act defines a school as 'an establishment which -
(a) provides primary education to its students and which may also provide early childhood education, or
(b) provides post-primary education to its students and which may also provide courses in adult, continuing or vocational education or vocational training, ...............'
The Act provides at section 24(3) that:
'A board shall appoint teachers and other staff, who are to be paid from monies provided by the Oireachtas, and may suspend or dismiss such teachers and staff, in accordance with procedures agreed from time to time between the Minister, the patron, recognised school management organisations and any recognised trade union and staff association representing teachers or other staff as appropriate.'
8.4 Section 24 of the Act came into operation on 23 December 1999 (S.I. No. 470 of 1999) and in my view, clarifies the matter that the employer of teachers, primary and secondary (save for vocational schools as section 24(9) provides that section 24 shall not apply to teachers or other staff of a school which is established or maintained by a vocational education committee) is the Board of Management. It clearly provides that a board of management shall appoint, suspend and dismiss teachers in accordance with procedures agreed between the education partners and teachers appointed are to be paid by monies provided by the Oireachtas. Section 24(5) clarifies that the role of the Minister in the appointment, suspension or dismissal of teachers is the same as the Patron, recognised school management organisations and any recognised trade union and staff association in that the appointment, suspension or dismissal of teachers by boards of management is in accordance with procedures agreed between the latter bodies. The functions of the Minister under the Act are detailed in section 7 and include, inter alia, providing a level and quality of education to each person resident in the State appropriate to meeting the needs and abilities of that person, determining national education policy, providing funding to each recognised school and monitoring and assessing the quality, economy, efficiency and effectiveness of the education system. The section does not include as a function of the Minister the day to day control of teachers and the duties to be assigned. Additionally, section 24(5) provides that the role of the Minister for Education with the concurrence of the Minister for Finance, is to determine the terms of conditions of employment of teachers and other staff of a school appointed by a board,. Section 24(6) provides that the Minister for Education with the concurrence of the Minister for Finance, shall determine the remuneration and superannuation of teachers which is to be paid from monies provided by the Oireachtas.
8.5 I have considered the High Court case of Tobin -v- The Minister for Education1 which concerned a judicial review application by a teacher in a community school seeking a quashing of his dismissal by the Board of Management. In the context of deciding whether that case had the necessary public law dimension to premise an application for Judicial Review, the Court considered whether the teacher was employed by the Board of Management or the Minister for Education. The applicant in that case considered that at all material times he was employed by the Minister for Education by virtue of his status as a vocational teacher. In this regard, he considered the Vocational Education (Amendment) Act, 1944 which contained a provision that the removal of a teacher from a vocational school can only be affected by the Minister and that when he sought information from the Department of Education concerning the terms and conditions of his appointment, the Department issued him with a memorandum and a Circular which suggested that he retained the status of vocational teacher and as such, was liable to be dismissed by the Minister.
8.6 Mr. Justice Kearns considered the Deed of Trust governing the management of community schools and referred to the essential characteristics of the Deed as identified by Costello J in the Campaign to Separate Church and State -v- The Minister for Education [1998] p331. He concluded that the Minister was fully involved in the running of Community Schools and whilst teachers are appointed by the Board, they must firstly be sanctioned by the Minister. Kearns J. noted that the Minister was the first party named in the Trust Deed and that he is involved and consulted in the efficient operation of the school and has a legal responsibility to ensure that the school is conducted in accordance with the Deed of Trust. He went on to hold that the Board of Management of the school was the employer. The Union on behalf of the complainant in this case submitted that the Tobin case does not relate directly to primary schools as it is a case concerning a vocational teacher rather than a primary teacher. The Vocational Education Act, 1930 refers at section 111 to the Minister prescribing scales of salaries for the 'various classes of teachers employed by vocational education committees.' It therefore clarifies that vocational teachers are employed by Vocational Education Committees. Whilst vocational schools are governed in accordance with a Deed of Trust and Instrument of Management, Iconsider that the Minister's role in the appointment of teachers is similar to that which applies to primary school teachers, i.e. whilst teachers are appointed by the Board, they must firstly be sanctioned by the Minister.
8.7 At an oral hearing in relation to the issue of the employer, the Union on behalf of the complainant referred to an Employment Appeals Tribunal Determination dated 30 July 1997 in the case of Ann Marie Sullivan -v- The Department of Education (Case No. PW2/97). The case concerned an appeal from a Decision of a Rights Commissioner pursuant to section 7 of the Payment of Wages Act, 1991 by a secondary school teacher relating to a claim that she had been paid an incorrect rate of Degree allowance since she commenced work. I note that the case cited related to remuneration and was prior to the commencement of section 24 of the Education Act, 1998. In support of its contention that the Board and Department are the joint employers of primary school teachers, the Union also referred to the Labour Court Decision in the Shiels O' Donnell case. The Labour Court in that case referred to sections 15(2), 24(2) and (3) of the Education Act, 1998 and it followed the findings of the Employment Appeals Tribunal in the Mc Govern case UD 554/1989 and considered the findings of the Tribunal consistent with the Board of Management 'Constitution of Boards and Rules of Procedure' which is a non-statutory based document. I note that the Mc Govern Determination issued prior to the enactment of
the Education Act, 1998 and that the Determination of the Labour Court in the Shiels O' Donnell case (1 July 2002) makes no reference to the High Court case of Tobin (21 March 2000).
8.8 The Board of Management of the school referred to the Circuit Court Judgment in the case of Gerard Moore -v- The Board of Management of Holy Child National School and the Bishop of Kildare and Leiglin delivered on 29 July 2002. The case concerned an appeal from a Determination of the Employment Appeals Tribunal that the dismissal of the appellant was not unfair within the meaning of the Unfair Dismissals Act, 1977 - 1993. Mr. Justice Mathews considered that:
".... the question I must concern myself with is simply this:
Was the decision reached by the Board the decision of a fair and reasonable employer and was it reasonable in all the circumstances of the case for the Board to come to the conclusion that there was a complete break down in the relationship between the Board and Mr Moore and no hope of a working relationship with him in the future?'"
Mr. Justice Mathews went on to hold that "..... the action taken by the Board of Management of the school was fair and reasonable in the particular circumstances prevailing .... " and the dismissal was not unfair. The Judgment in that case deals specifically with the question whether the decision of the Board of Management to dismiss a primary school teacher was the decision of a fair and reasonable employer and Mr. Justice Mathews stated that in the course of the appeal, one of the issues he dealt with was the role of the Minister for Education (if any) in the dismissal of a teacher. The Judgment in the Moore case was delivered post the commencement of section 24 of the Education Act, 1998.
8.9 Indeed, were it the case that the Education Act, 1998 had not been enacted, in accordance with the doctrine of precedent, I would be compelled to have regard to the judicial hierarchy of the cases cited and would be obliged to follow the Judgment of the superior Court, namely the High Court case in Tobin. In the event that that case could be distinguished on the facts and would not be an appropriate case to follow, the Judgment of the Circuit Court in Moore deals specifically with the employment of a primary school teacher. That Judgment also considered the role of the Minister in the dismissal of a teacher and was delivered post the commencement of section 24 of the Education Act, 1998. Taking into account section 24(3) of the Education Act, 1998, I consider that the employer of the complainant who is a primary school teacher is the first named respondent, namely, the Board of Management of the school. Indeed, the first named respondent accepts that they and not the second named respondent are the complainant's employers for the purposes of this case. Accordingly, when I refer to the employer throughout this decision, I am, in fact, referring to the first named respondent, namely, the Board of Management of the school.
Claim of discrimination on the gender ground in the selection process
8.10 I will firstly deal with discrimination on the gender ground in relation to the selection process for appointment to the Special Duties posts. There were nine candidates for the post, seven female and two male. In accordance with Circular 6/97 (Appendix B, Section 5), it was necessary for the Board of Management to post within the school its offer of a position to a particular teacher and such a notice was posted on 4 April 2000 setting out the seven posts being offered. Following considerable correspondence between the complainant and the Chairperson of the interview board in relation to the significance of being appointed to the Special Duties No. 7 position, on 28 June 2000, the complainant accepted the position being offered. Following the offers of the positions on 4 April 2000, seven appointments were made. The two unsuccessful candidates in the competition were female. The complainant alleges that the respondent operated a bias towards males in the ranking of the two male candidates in first and second position in the competition in March 2000 and that the first named respondent discriminated against her on the gender ground in the selection process. Section 6(1) of the Employment Equality Act, 1998 provides that discrimination shall be taken to occur where on any of the grounds mentioned in subsection (2), one person is treated less favourably than another is, has been or would be treated. Section 6(2) provides in relation to the gender ground that as
between any two persons, a comparison may be made where one is a woman and the other is a man. In addition to less favourable treatment, discrimination normally also involves a difference in treatment. The European Court of Justice has stated: "It is well settled that discrimination involves the application of different rules to comparable situations or the application of the same rule to different situations....'2
In this case, the complainant submits that she has been treated differently and less favourably on the basis of her gender in the selection process for the post of Special Duties Teacher.
8.11 Council Directive 97/80 EC of 15 December 1997 on the Burden of Proof in cases of Discrimination based on Sex, sets out the procedural rules to be followed in applying
the evidential burden in sex discrimination cases. Article 4.1 of the Directive provides that Member States shall take such measures as are necessary to ensure that where a complainant in discrimination proceedings establishes facts from which it may be presumed that there has been discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment. In the Preamble to the Directive, it is expressly recognised at Recital 18 that the European Court of Justice has held that the rules on the burden of proof must be adapted when there is a prima facie case of discrimination and that, for the principle of equal treatment to be applied effectively, the burden of proof must shift back to the respondent when evidence of such discrimination is brought. The Directive was transposed into Irish law on 18 July 2001 by the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001 {Statutory Instrument 337 of 2001}.
8.12 The procedural rules set out in Article 4 have been applied for some time in this jurisdiction and it is clear that a claimant must establish a prima facie case of discrimination before the onus of proof shifts to the respondent. The Labour Court has stated:
'The first question the Court has to decide is whether the [claimant] has established a prima facie case of discrimination.' 3
Prima facie evidence has been described as:
'.... evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.'4
The Northern Ireland Court of Appeal commented that:
'........ once the evidential burden has shifted, ..............., the question then is whether there is any evidence to justify the conclusion that the evidential burden has been discharged by the respondent.' 5
8.13 In the Southern Health Board v. Dr. Teresa Mitchell6 the Labour Court referred to the persuasive nature of the Judgement in Wallace and it being consistent with Article 4 of the Burden of Proof Directive and the case law of the ECJ on which it is based. It went on to consider the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
'.... "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that 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, and they are regarded by 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.'
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not discriminated against on grounds of sex. If the complainant does not discharge the evidential burden, the complaint cannot succeed.
8.14 I must now consider whether the complainant has established a prima facie case of discrimination on the gender ground contrary to section 8(1)(d) of the Employment Equality Act, 1998. Firstly, the complainant submits that there is a pattern of discrimination against females in the appointment of teachers to posts of responsibility. She submits that in June 1998, she and a male candidate came first and second for a Special Duties post but even though their specific ranking was not determined, the male candidate was offered the more senior Acting up Assistant Principal position. In a subsequent competition following appeals, interviews were held in December 1998 and the complainant was ranked sixth. A male teacher was ranked first and another male teacher was ranked joint third. The complainant submits that both males had less relevant experience and were less senior to her. The interview procedure was repeated in May 1999 and the male teachers were ranked higher than the female teachers. In the competition in May 2000, the male candidates were ranked first and second. The complainant also refers to interviews for the positions of permanent Assistant Principals where there were two successful candidates, a male and a female, however, the male candidate was ranked higher. The complainant submits that in all cases, the male teachers were successful in obtaining a rank order higher than the female candidates. The complainant submits that the statistical evidence and pattern of discrimination causes the burden of proof to shift to the respondent to prove that their failure to appoint the complainant to the first special duties post can be justified on objective grounds other than gender.
8.15 The first named respondent submits that the complainant's attempts to rely on the previous interviews and appointment processes and the outcome of the interviews in making her case under the 1998 Act is improper and inconsistent with the Determination of the Labour Court (REE/00/3 DECISION NO. 011 dated 29 March 2001) that she was out of time other than in relation to the interview of March 2000. I accept the respondent's contention in this matter and I consider that I do not have jurisdiction to investigate complaints of gender discrimination in relation to the earlier complaints. It is therefore not possible for me to determine whether the earlier competition results are evidence of a pattern of discrimination on the gender ground and the complainant cannot therefore rely on a pattern of discrimination to shift the burden of proof to the respondent.
8.16 The complainant contends that the two male candidates for the post had less experience and were less senior to her and that the ranking of the two male candidates in first and second position indicates a gender bias towards the male candidates. The criteria for assessment of candidates for the posts of Special Duties teacher as prescribed by Department of Education and Science Circular 6/97 were:
(i) capability and willingness to undertake the duties attaching to the post;
(ii) length of service or experience in the school;
(iii) interest in a particular area within the list of duties.
The complainant applied for all seven Special Duties posts and submits that as she was the most senior teacher, she should have received the most marks under the heading of length of service or experience in the school. At the hearing, the respondent clarified that length of service as opposed to experience in the school was used to assess candidates and agreed that the complainant was the most senior. It submitted that twenty years was taken as the base mark as the person with the longest service had twenty years and that the candidate ranked first had a fortnight less service than the complainant. The complainant and teacher A who was male (ranked first) both received full marks for length of service. Teacher C who was the male teacher ranked second received 19 marks for length of service indicating that he also had less service than the complainant. The complainant is therefore correct in her assertion that she was the most senior and had more service than the two males ranked first and second.
8.17 Copies of the CVs of eight of the nine candidates were made available on 15 October 2002 and the respondent's representative stated that it was taking its clients instructions in relation to the missing CV as a matter of urgency. Todate, I have not received a copy of the CV in question. I have examined the CV of the male candidate who was ranked first vis a vis the complainant's CV. The CV of the male candidate (Teacher A) is detailed in bullet point format under the headings of Involvement in Sports, Games Co-Ordinator, Physical Education, Achievements (Sporting), Achievements (Professional Role), Professional Intentions and Courses Completed. It does not specify which post or posts the candidate applied for and is undated. He was ultimately appointed to P.E. & Games and Transport Co-Ordinator. His CV does not clarify his teaching experience or his qualifications other than courses completed such as P.E. in the primary school, Drugs Awareness, Historical Dublin, the Teacher and the Law, Set Dancing, Art and Craft in the primary school and Teaching the Disadvantaged. On the basis of the information contained in the CV's, I consider that the complainant who held a Diploma in Religious Studies, a Diploma in Curriculum Studies and a Diploma in Management in Education in addition to the basic primary teaching degree was better qualified. It would also appear that the complainant's qualifications were relevant in the light of Circular 6/97 (section 2) which provides that the purpose of the revised in-school management structures in primary schools is inter alia, to:
'focus on the provision of opportunities for teachers to assume responsibility in the school for instructional leadership, curriculum development, the management of staff and the academic and pastoral work of the school,'
I note that the complainant's CV also outlines how the duties performed by her related to the management posts for which she was applying.
8.18 I have also examined a copy of the CV of the male candidate who was ranked second (Teacher C). His CV is detailed for the most part in bullet point format under the headings of Further Training, Teaching Career, Duties and Responsibilities in current position, Other Relevant Experience, Other Interests and Referees (one of whom is the principal of the school). Again, the CV does not specify which post or posts the candidate applied for and is undated. He was ultimately appointed to S.P.H.E., Overall Equipment Co-ordinator and Classroom Utilities. Whilst his CV gives details of his teaching career, it does not refer to his qualifications other than further training such as Listening Skills, Needs Assessment, Planning, Time Management, Communication Skills, Committee Effectiveness, Conflict Resolution, Developing and Maintaining Team, Facilitation and Presentation, Evaluation and Developing Individual Plans. On the basis of the information contained in Teacher C's CV, I consider that the complainant was better qualified.
8.19 The complainant also alleges that at the time of the competition in April 2000, she held an acting Special Duties post with responsibility for Social Personal and Health Education, Overall Equipment Co-ordinator and Classroom Utilities. At the hearing, the principal of the school stated that he did not find the way in which the complainant performed the job to be unsatisfactory. The complainant also stated that she received no indication that she was performing poorly. Accordingly, it does not appear that there was an issue in relation to the complainant's capability and willingness in relation to the post which she already held.
8.20 I note that candidates were marked under the three headings as prescribed by Department Circular 6/97. In relation to the questioning of candidates at the interview, the principal of the school who was a member of the interview board submitted on behalf of the respondent that questions were not necessarily asked under each particular heading. It submitted that there were some general questions and the interview board tried to get a question under Curriculum and non-Curriculum areas. The principal clarified that he drew up the list of questions on the basis of questions that should be asked and were asked in other interview boards. He submitted that the external assessor had also drawn up a list of questions but it was agreed that the board would use the principal's list. They then allocated different questions to different assessors. As the questioning of candidates did not specifically take place under the three assessment criteria, I consider that the questioning system applied would have rendered the assessment criteria somewhat redundant. I also consider that the failure to question candidates specifically under the three areas of assessment and the fact that the interview was carried out on the basis of questions drafted by one particular member of the board who was familiar with the candidates could have allowed for the operation of subjective prejudices based on gender.
8.21 On the basis that the complainant (i) had more service than the two male candidates ranked first and second, (ii) was better qualified than them and that her qualifications were particularly relevant for the purposes of the revised in-school management structures in primary schools, (iii) that there was no issue in relation to the complainant's performance of the acting Special duties post which she held, (iv) the respondent was unable to provide a copy of the CV of one of the candidates, (v) that candidates were not specifically questioned according to the predetermined assessment criteria, (vi) the list of questions was drawn up by a member of the interview board who was very familiar with the candidates and (vii) the fact that the two male candidates were ranked first and second with the females obtaining a lower ranking, I find that the complainant has established facts from which it could be presumed that there has been discrimination on the gender ground and has therefore established a prima facie case of discrimination. The onus of proof, therefore, shifts to the respondent to prove that the ranking of the male candidates in first and second place was based on objective non-discriminatory reasons unrelated to gender.
8.22 A copy of the list of questions with the complainant's responses as recorded by the principal was made available. I subsequently requested the provision of the original for inspection by me and the first named respondent's representative's letter of 14 October 2002 submitted that its client had carried out an exhaustive search of school records and was unable to trace the original documents requested by me which included the principal's original notes for the complainant. The original notes of the principal in respect of the other candidates were made available. The original of the list of questions with four comments made by the independent assessor in relation to the complainant's interview was also made available. A copy of the notes of the other candidates' interviews made by the independent assessor or of the Chairperson of the interview board for all candidates were not made available. In a request for clarification on the issue of taking notes at interview, the respondent's representative by letter dated 26 February 2002 stated "No interview notes were made by the other members of the interview board." At the hearing, I sought to clarify why the independent assessor made notes during the complainant's interview and not during the other candidates' interviews. The respondent then submitted that the independent assessor made notes during all candidates' interviews but that they went missing. It further submitted that there were a number of break-ins at the school and that the interview details were kept in three bundles. It is therefore submitted by the
respondent that during a break-in, the thieves stole the interview notes of one of the interview board members for all candidates except the complainant.
8.23 The statement of the respondent in its letter of 26 February 2002 is inconsistent with its statement at the hearing in that in the letter, it submitted that no notes were made by the other members of the interview board for the other candidates whereas at the hearing, it submitted that notes were made by the independent assessor in respect of all candidates but that the notes were stolen save for the notes he made in respect of the complainant's interview. At the hearing, the respondent submitted that it was decided in advance of the interviews that the other two board members would take notes and that the Chairperson would observe. The Chairperson submitted at the hearing that the only note that she took during the interviews was a note of the complainant's response to the question on whether she considered the interview to be fair. It is the respondent's case that the interview notes made by the independent assessor were stolen save for the notes in respect of the complainant's interview. I find this contention difficult to accept and I find the respondent's evidence in relation to the taking of notes at interview inconsistent.
8.24 I have already referred to the fact that the candidates were not specifically questioned according to the predetermined assessment criteria. At the hearing, I sought to establish how the marking system operated. It was submitted on behalf of the respondent that the interview board did not give marks for specific questions and that the interview board discussed each candidate's interview at the end of the interview and then individually marked candidates on their overall answers to all questions. At the hearing, the respondent clarified that the marks of the individual board members were totalled to come up with a final result for each candidate. The respondent made available copies of the marking sheets of the various assessors. I subsequently requested the originals to be made available for inspection. On 1 August 2002, the original marking sheets of the principal were made available, however, the respondent's representative submitted that it did not have the original marking sheets of the chairperson and the independent assessor. Subsequently, on 16 September 2002, the respondent's representative submitted that it's clients had advised that they had been unable to contact the Chairperson or independent assessor to ascertain if they had any of the original marking sheets. On 14 October 2002, the respondent's representative submitted that its client had carried out an exhaustive search of school records and was unable to trace any of the original documents requested by me.
8.25 The principal's marking sheets for the complainant and Teacher C (male appointed to Special Duties number 2 post) contain Tipp-exed amendments. At the supplementary hearing, the principal stated that he could not provide an explanation in relation to the Tipp-exed amendments. An examination of the complainant's original marking sheet as recorded by the principal indicates that the total mark was pencilled at some stage and subsequently erased, was recorded in ink and also shows Tipp-exed amendments to the total marks awarded for four of the posts applied for by the complainant. I note also that the complainant's marking sheet is the only one which shows a sub-total for the first two categories of assessment (Length of service and Capability and Willingness). An examination of the principal's marking sheet for Teacher A (male and appointed to the Special Duties No. 1 post) does not indicate any erasures of pencil or show any Tipp-exed amendments. I note that he received maximum marks under the first two categories of assessment and 19/20 for the final category of assessment. On an examination of the Tipp-exed original marking sheet for Teacher C, it can be ascertained that the principal's mark for interest in a particular area was clearly revised from 18 to 20 marks giving Teacher C an overall mark of 169 and an equivalent mark to Teacher D who was female. The final marking sheet showing the total marks awarded to each candidate by the interview board members was provided on 15 October 2002 and it indicates a total mark of 167 for teacher C who was male and who was appointed to the Special Duties No. 2 post and a total mark of 169 for teacher D (female) who was appointed to Special Duties No. 3 post. The total of 167 has number 2 circled beside it whilst on the following line, the mark of 169 has number 3 circled beside it. As the male candidate received less marks than the female teacher, it is unclear how he was ranked second.
8.26 I find it difficult to understand how any mistake in relation to ranking was not noticed by any of the three interview board members who had responsibility for totalling the marks and ranking candidates. On examining the principal's original marking sheet for Teacher C who was male, it appears that the mark for Teacher C was revised upwards to give him an equivalent mark to Teacher D who was female. The first named respondent clarified at the hearing that where two candidates had the same mark, the criterion of seniority would be taken into account which in this case would have allowed the respondent to rank the male teacher ahead of the female teacher. On the balance of probability, I find that the ranking shows a preference for the male teacher to be appointed to the Special Duties No. 2 post. I consider that an issue also arises in relation to the sub-totals on the principal's marking sheet for the complainant and in relation to the Tipp-exed amendments for which no explanation was provided by the respondent.
8.27 The complainant received marks of 10/20, 11/20 and 10/20 for interest in the area of SPHE, Overall Equipment Coordinator and Classroom Utilities in which she was already acting. The complainant received marks of 15/20, 15/20 and 16/20 for capability and willingness to undertake the duties attaching to the post in that particular area. In a request to the respondent as to why the complainant received relatively low marks under the heading of interest in an area where she was already carrying out these duties in an acting capacity, the principal stated that the complainant gave the same answer all the time that she would take it as it was at that time and improve on it and he confirmed that he did not find the way in which she performed the job to be unsatisfactory. The complainant confirmed that she was never informed that her performance was unsatisfactory. The Chairperson of the board stated that she could not recall the complainant's answers and the independent assessor stated that he would not have been aware that the complainant was acting in a post. However, I note that the complainant's C.V. which she submitted in respect of each of the posts that she applied for specifically refers under the headings of
'Teaching Experience' and 'Administrative Expertise' to her position as Acting Special Duties Assistant Teacher with responsibility for SPHE and Overall Equipment Co-Ordinator and Classroom Utilities. This begs the question whether the complainant's CV was considered by the independent assessor on the interview board.
8.28 I have considered:
- the inconsistencies in the respondent's evidence in relation to the taking of notes at the interviews,
- the respondent's statement in relation to the theft of all of the interview notes of one of the assessors save for the complainants,
- the issue as to whether one of the assessors considered the complainant's CV;
- the failure to provide this forum with the original of the principal's notes for the complainant when the original of his notes for all other candidates were provided;
- the failure to provide this forum with the original marking sheets for two of the assessors for all candidates notwithstanding that it had provided copies of the marking sheets;
- the sub-totals of two of the categories on the principal's marking sheet for the complainant and the Tipp-exed amendments to the original marking sheet for which no explanation was provided;
- the Tipp-exed amendments to the original of the principal's marking sheet for one of the male candidates which clearly had an impact on the outcome of the interview process in favour of the male candidate.
On the basis of these factors which have been detailed in the preceding paragraphs, I consider that a serious question arises in relation to the authenticity of the documents and evidence presented, that the respondent has failed to demonstrate transparency in the selection process and has not shown that the selection of candidates was based on objective non-discriminatory factors. I am, therefore, not satisfied that the respondent has rebutted the complainant's allegation in relation to a bias towards male candidates in the selection process and that she was discriminated against on the gender ground in the selection process. In the circumstances, I find that the respondent discriminated against the complainant on the gender ground in the selection process for appointment to Special Duties teacher.
Claim of victimisation in relation to the specific ranking of seventh position
8.29 The complainant claims that by being ranked seventh in terms of special duties positions allocated, she has been penalised for appealing previous decisions of the Board of Management in relation to appointments to posts of responsibility. By being ranked seventh, she is placed at a disadvantage in relation to short term Acting Up positions. I will now proceed to examine whether the complainant's specific ranking of seventh position amounted to victimisation within the meaning of the Employment Equality Act, 1998. Section 74(2) of the Act provides, inter alia, that victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith -
(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,
8.30 The first issue for consideration by me is whether the complainant in the present case has established a prima facie case of victimisation. I must therefore consider whether the claimant has adduced evidence to show she was penalised and secondly, whether the evidence indicates that the penalisation was solely or mainly occasioned by the complainant having in good faith opposed by lawful means an act which is unlawful under the Employment Equality Act, 1977 or the Employment Equality Act, 1998.
8.31 The respondent raised the issue of whether the complainant had taken action in accordance with section 74(2)(b) of the Employment Equality Act, 1998 and submitted that there was no evidence of the complainant having opposed any act which is unlawful under the Employment Equality Act, 1998 which could ground a claim of victimisation under section 74 of the Act. I will firstly consider this particular issue. On 8 September 1998, the complainant appealed the appointment of a male candidate to the post of Acting Assistant Principal to an independent arbitration board. There are two items listed in the complainant's appeal letter. The following is an extract from item number 2 of the letter:
" (2) ...... As I am a more senior member of staff, I feel the fact I am female and have taken maternity leave must account for why I was not promoted to the Acting A post. Also, given that each September male teachers are appointed to Temporary Positions, due to career breaks, in order to ensure a gender balance on the staff, I ask why the top management team, of a school with a majority female staff, will have a ratio of 4 males to 1 female. A male member of staff is deputising for a female member."
8.32 The respondent replied to the complainant's letter by letter dated 17 September 1998. In that response, the Chairperson of the Board of Management specifically refers to
the Employment Equality Act, 1998. The relevant paragraphs of the letter dealing with the complainant's appeal include the following statements "Time - out for maternity leave was not deducted from any point system. .... I must point out that the policy of the school is to ensure a gender balance on the staff insofar as possible......" The complainant again wrote to the respondent by letter dated 5 October 1998 and queried why a male candidate was appointed to the post of Acting Assistant Principal given that she was the most senior teacher. The complainant also stated that she: "would like to point out that all three female temporary teachers, who are in the school at present, had either done teaching practice or worked as substitute teachers in the school, before being employed as a temporary teacher. Only one of the present male temporary teachers had worked in the school prior to his appointment as a temporary teacher."
By letter dated 14 November 1998, the Chairperson of the Appeal Board informed the complainant that her appeal had been upheld. In accordance with Circular 6/97 which provides that other than agreed findings of the appeal board, no written record of the minutes of its proceedings shall be kept, the reasons for upholding the appeal are not stated in the letter.
8.33 Subsequently, the complainant attended an interview for Special Duties Teacher on 28 May 1999 and for Acting Deputy Principal on 2 June 1999. She was unsuccessful in her application for both positions. The complainant appealed both decisions by letter dated 3 June 1999. In that letter she states that she wished to appeal all the appointments to the Posts of Responsibility and in particular, the posts of Deputy Head and Special Duties Teacher. Her grounds of appeal are not numbered but are in bullet point format. The following is an extract from her letter of appeal:
"* I was asked the following question by [the principal] at the interview for Deputy Principal:
1. What did I think the staff thought of me?
2. What did I think that my family thought of me?
3. What did I do for recreation?
Apart from question 1., none of the others are remotely related to the requirements of the job of Deputy Head. As [the principal] had brought up the fact that I was on a personal leave day on the day of the interviews for the Special Duties Posts I felt obliged to say that I had taken the day to prepare for my son's First Holy Communion. On being asked question 3 I replied that I liked walking, reading and playing with my children. He replied "I'd hardly call that recreation". I felt such a remark to be inappropriate at an interview."
8.34 I note that that particular letter was addressed to the person who was the Chairperson of the interview board which is the subject of this claim. The respondent's response was written by the person who was the Chairperson of the interview board in issue and is signed in her capacity as "Acting Chairperson Board of Management". The response is dated 23 June 1999 and states:
"In relation to the interview itself; no question was asked at the interview, nor information sought in any form which might be construed as being discriminatory on grounds of sex or marital status. All questions asked at the interview related to the requirements of the particular post. [The principal] did not ask the questions that you listed. Rather he asked how would your colleagues describe you; how would your family describe you and how do you relax. All of these questions are on a list supplied by the C.P.S.M.A. to interview committees for principalships and as this interview was for the position of Acting Up Deputy Principal they were deemed appropriate by the interviewing committee. [The principal's] statement that you were on a personal leave day was made for the benefit of the interviewing committee as a commendation of you and your willingness to attend on a day off. Regarding the comment on recreation; I feel that you misinterpreted what was said and have taken the comment out of context. If you felt such a remark was inappropriate at an interview, you had opportunity to make your views known at that time."
8.35 The complainant by letter dated 26 June 1999 resubmitted her appeal and restricted the appeal to the posts of Acting Deputy Head and Special Duties Teacher on two grounds. Her letter again refers to the questions she was asked at the interview. By letter dated 21 December 1999, the complainant was informed that her appeal had been upheld. At the hearing of this claim, the INTO explained that it's advice to members in the past was to avail of the appeal mechanism where there was an issue in relation to equality. On the basis of the correspondence between the parties in relation to the earlier appeals which clearly refer to gender and marital status issues in the previous appointments, I find that the complainant opposed by lawful means an act which was unlawful under the Employment Equality Act, 1977 in accordance with section 74(2)(b) of the Employment Equality Act, 1998.
8.36 I must now consider whether the complainant was penalised. It is not disputed that a ranking in seventh position places the complainant at a disadvantage in relation to short term acting up positions to Acting Assistant Principal posts. The complainant appealed the outcome of previous interviews on two occasions and on each occasion, her appeal was upheld. As referred to above at paragraph 8.25, the principal's marking sheet for the complainant was the only marking sheet which showed a subtotal for the first two categories of assessment. Additionally, no explanation was given as to why there are Tipp-exed amendments on the marking sheet thus demonstrating a lack of transparency in the selection process and raising a question regarding the authenticity of the evidence presented. (Whilst there was Tipp-ex on one of the principal's marking sheet for one of the other candidates, (Teacher C), I consider that there was a particular reason for the amendment as set out at paragraph 8.26 above.) Additionally, as referred to at paragraph 8.27 above, an issue arises in relation to whether the independent assessor considered the complainant's CV given that he stated at the hearing that he was not aware that she held an acting Special Duties position at the time of the interviews notwithstanding that the complainant refers twice in her CV to the post that she held. On the basis that (i) the complainant appealed previous interview decisions which inter alia, raised equality issues, (ii) is in a disadvantaged position by being ranked seventh, (iii) an issue arises in relation to the complainant's markings and (iv) consideration of her CV at interview, I find that the complainant has established a prima facie case of victimisation in relation to being ranked seventh. The burden of proof therefore shifts to the respondent to rebut the complainant's claim of victimisation.
8.37 I note that in the competition which took place in May 1999, the person (Ms. C) who chaired the interview board was the same person who chaired the interview board, the results of which are in issue in the present case. I note that in the results of the earlier competition which were posted on 2 June 1999, the notice of appointment of the various candidates is signed by Ms. C in her capacity as 'Chairperson (Acting) Board of Management'. Similarly, in the results of the competition in issue, she again signs herself as 'Chairperson (Acting) B.O.M.' The chairperson, in correspondence between her and the complainant in relation to both competitions, including an appeal of the earlier competition continuously signs herself in the same capacity. At the hearing, the person who was the head of the Education Secretariat for the Dublin Archdiocese at the time of the interviews explained that he nominated Ms. C to be Chairperson of the Board of Management on two occasions. A request to nominate someone to the position of Chairperson of the Board of Management is made when the Chairperson is not available. It is therefore the case that the person who was Chairperson of the interview board in issue had a considerable connection with the school as Acting Chairperson of the Board of Management on two occasions. She was also on the interview board in May 1999 which was the subject of appeal by the complainant (and upheld) with the result that the competition had to be held again. The competition was held again in March 2000 and is the subject of the current proceedings. In the circumstances of Ms. C's participation in the earlier interview process which was appealed, I consider that it was quite unwise in the interests of transparency and natural justice for her to agree to act as Chairperson of the interview board for the same competition which was being held for the second time as a result of the complainant's appeal.
8.38 I note that Department of Education Circular 17/00 effective from October 2000 provides at section 17(c)(5) dealing with appeals that:
'Where an appeal has been upheld and the Board of Management is required to establish a second Selection Board, then the Chairperson of the Board of Management, the Principal Teacher and two independent assessors, neither of whom were involved in the original selection, shall comprise the second Selection Board. The two independent assessors shall be selected from the agreed panels of assessors.'
8.39 I note that the last question on the list which was drawn up by the principal and used at interview is the question 'Has this been a fair interview?'. At the hearing of the claim, the independent assessor stated that he was surprised at the complainant's answer to this question as she said that it would depend on the outcome. The Chairperson of the interview board also stated that she was also surprised and when I asked her how she remembered, she stated that it was the only note that she took. I consider that this question at the end of an interview is always wholly inappropriate as the candidate is compromised in answering the question. In this particular case, given the complainant's previous appeals in relation to the fairness for various reasons of other interviews, the question would have had more significance for her. Taking into account the particular significance of the question for the complainant and the statement by two of the interview board members that they were surprised at her response and more particularly, the statement by the Chairperson of the board that it was the only note of the interview that she took, I find on the balance of probability, that the complainant was singled out in relation to her treatment at the interview.
8.40 I have considered:
(a) that the person who was Chairperson of the interview board was also on the interview board in May 1999 which was the subject of appeal by the complainant with the result that the competition had to be held again in March 2000 and is the subject of these proceedings and
(b) the particular significance of the question for the complainant as to whether the interview was a fair interview and the statement by two of the interview board members that they were surprised at her response and more particularly, the statement by the Chairperson of the board that it was the only note of the interview that she took.
Additionally, I consider the following factors to be relevant to a claim of victimisation in relation to the complainant's specific ranking in seventh position as I consider that the respondent has not demonstrated transparency in relation to the complainant's particular ranking:
.
(c) the respondent's statement in relation to the theft of all of the interview notes of one of the assessors save for the complainants (detailed at paragraph 8.22 above);
(d) the failure to provide this forum with the original of the principal's notes for the complainant when the original of his notes for all other candidates were provided (detailed at paragraph 8.22 above).
In the circumstances, I find that the respondent has failed to rebut the complainant's claim of victimisation in relation to her specific ranking in seventh position in the competition for Special Duties Teacher in March 2000. On the balance of probability, I find that the penalisation of the complainant by being ranked seventh was solely or mainly occasioned by her having opposed by lawful means an act which was unlawful under the Employment Equality Act, 1977.
8.41 The complainant submitted that she was not interested in compensation and even though I consider that this is a case which merits compensation for stress in the light of the complainant's visible distress at the hearing, I must respect her wishes. As I have found in favour of the complainant regarding her claim of discrimination on the gender ground in relation to a bias towards male candidates in the selection process and regarding her claim of victimisation in relation to her specific ranking of seventh position, I must now consider an appropriate form of redress. As the evidence indicates a bias towards the male candidates ranked in first and second position, I consider that the complainant should be appointed to the Special Duties No. 1 post with effect from 4 May 2000 being the effective date of appointment of the male candidate ranked first. In this regard, I have considered that the post holders in issue are holders of additional responsibilities to their teaching role for which they are paid an allowance from monies provided by the Oireachtas.
9. DECISION
9.1 On the basis of the foregoing, I find that the respondent discriminated against the complainant on the gender ground in the selection process for appointment to the post of Special Duties Teacher. I also find that the complainant was victimised in relation to her specific ranking of seventh position.
9.2 In accordance with section 82(1) and (5) of the Employment Equality Act, 1998, I hereby order that:
1. the first named respondent rank the complainant in the Special Duties No. 1 post with effect from 4 May 2000, arrange to pay her through the Department of Education and Science the arrears of the allowance accruing and accord her the same status as was accorded to the person originally ranked first;
2. The first named respondent draft an Equal Opportunities Policy to take account of the provisions of the Employment Equality Act, 1998, if necessary, by liaising with the Equality Authority in relation to the matter and the policy to be displayed permanently in a prominent position within the school;
3. The Chairperson of the school and the principal, (including any new appointment to either of these positions) prior to sitting on any interview board, participate in a course on interviewing skills and obtain confirmation of their attendance on such course which should be retained in a safe place by the Chairperson of the Board of Management.
__________________
Mary Rogerson
Equality Officer
30 June 2003
1 21/03/2000 [1993] 124 JR
2 Gillespie & ors v. Northern Health and Social Services Board & ors C-342/93 [1996] ECR page I-0475 para 16
3 The Rotunda Hospital v. Noreen Gleeson DEE003/2000 18 April 2000
4 Dublin Corporation v. Gibney EE5/1986
5 Wallace v. South Eastern Education and Library Board (NI Court of Appeal) 1980 IRLR 193 para 15
6 DEE011 15 February 2001