DUNBAR (REPRESENTED BY THE EQUALITY AUTHORITY) AND GOOD COUNSEL COLLEGE, NEW ROSS (REPRESENTED BY THE JOINT MANAGERIAL BODY ASSOCIATION OF MANAGEMENT OF CATHOLIC SECONDARY SCHOOLS)
1. DISPUTE
This dispute involves a claim by Mr. George Dunbar that he was discriminated against on grounds of age, within the meaning of section 6(2)(f) of the Employment Equality Act, 1998 and in contravention of sections 6, 8 and 31 of that Act, when he was unsuccessful in his application for promotion to the post of Assistant Principal with the respondent following a competition in October, 2000. He further claims that he was victimised by the respondent within the meaning of section 74(2) of the Act.
2. BACKGROUND
2.1 The complainant commenced employment with the respondent as a teacher in August, 1980. He was appointed to a Special Duties post in 1998 and applied for the post of Assistant Principal in September, 2000. He was unsuccessful and the only other candidate (Mr. A), who is a colleague of the complainant, was appointed to the post by virtue of the fact that he was considered senior to the complainant in terms of service by the respondent. The complainant contends that this is not the case and argues that the selection process used by the respondent was contrary to the Employment Equality Act, 1998 as it was based on age. The respondent rejects these assertions.
2.2 The Equality Authority, on behalf of the complainant, referred a complaint under the Employment Equality Act, 1998 to the Office of the Director of Equality Investigations on 5 September, 2001. In accordance with her powers under the Act the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under the Act. Written submissions were received from both parties and a hearing took place on 17 September, 2002. A number of issues emerged at the hearing which required clarification and gave rise to further submissions and correspondence from the parties subsequent to the hearing. Final confirmation that the parties were satisfied the Equality Officer was in possession of all the relevant material from their perspective was received on 25 August, 2003.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant commenced employment with the respondent at the beginning of the school year 1 August, 1980. Mr. A also commenced employment with the respondent on the same date. Both were appointed to Posts of Responsibility on the same day - 1 August, 1986 and both were appointed to Special Duties Posts on 1 October, 1998 on foot of restructuring arrangements generally in the education sector. They were the only candidates in a competition for a vacancy at Assistant Principal level in October, 2000. The complainant contends that the determining factor which resulted in Mr. A's selection for the post over him was the former's higher placement on the school seniority list. He states that this list was created in February, 1999 and pre-dates the coming into operation of the Employment Equality Act, 1998. He contends that the list was therefore compiled in accordance with Department of Education and Science Circular 5/98, which provides at Appendix 2 that where candidates are ranked equal in terms of length of service, the candidates' date of birth shall determine seniority. The complainant further submits that Circular 5/98 was amended by letter from the Department dated August, 2000. This letter removed age from the calculation of seniority and set out new criteria for calculation of reckonable service for that purpose. He submits that the application of this revised system, which was effective immediately, placed both himself and Mr. A absolutely equal in terms of seniority.
3.2 The complainant also alleges that the respondent indirectly discriminated against him on grounds of age contrary to section 31 of the Act. He submits that the compilation of the seniority list within the school on the basis of age disadvantages candidates who are younger than the successful candidate because those candidates, including the complainant, cannot satisfy that provision. He further submits that the operation of such a practice cannot be justified as reasonable in the circumstances.
3.3 The complainant states he informed the Principal of the school on 26 October, 2000 that he considered the appointment of Mr. A to the position of Assistant Principal to be discriminatory on grounds of age. The complainant subsequently appealed the outcome of the competition to the Arbitrator in accordance with Circular 5/98. He contends that he was subsequently victimised by the Principal, in terms of section 74(2) of the Employment Equality Act, 1998. In particular, he refers to an incident on 15 November, 2000 when the Principal refused to sign a standard work related form for him, shouted at him and then walked away from him, when the complainant had approached him on the corridor. In addition, the complainant states that shortly after he had lodged his appeal with the Arbitrator, a notice appeared on the staff notice board advising that there was a delay in filling the post, although it did not refer to the complainant by name. The complainant states that this notice remained on the notice board for nearly six months and he was subsequently subjected to hostile and adverse comments from his colleagues in the course of a Branch Union meeting in May, 2001 because of this.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent denies that the complainant was discriminated against on grounds of age. It accepts that the determining factor in the selection process was Mr. A's seniority within the school. It also accepts that both candidates were appointed to the various posts on the same date and that Mr. A is older than the complainant. It states that the seniority list used for the purposes of the competition was dated February, 1999 and had been prepared on the basis of all the preceding lists which were originally drawn up under the terms of the Fifth Agreed Memorandum on Posts of Responsibility agreed between the relevant trade union, the school authorities and their representatives and the Department of Education and Science. It states that the appointment to the vacancy at Assistant Principal level in October, 2000 was determined in accordance with the terms of Circular 5/98 by virtue of their relative seniority. Both candidates were considered equally suitable for promotion by the Interview Panel.
4.2 The respondent states that both the complainant and Mr. A were originally employed in 1980 following interviews held at the end of June that year. The complainant was offered a position on 28 June, 1980 and confirmed acceptance of that offer in writing on 16 July. Mr. A was offered a position on 3 July, 1980 and confirmed acceptance of that offer in writing on 7 July. The respondent states that by virtue of the fact that Mr. A accepted the offer of employment before the complainant, he was placed ahead of him on the seniority list. Both employees signed their Probationary Contracts of Employment on 1 August, 1980. The respondent submits that the complainant has failed to establish a prima facie case of indirect discrimination.
4.3 The respondent denies that it victimised the complainant within the meaning of the Act. It states that when the complainant approached the Principal to complete a work related application form, he did so on the corridor outside a number of classrooms, including the complainants. It contends that the complainant was speaking in a loud voice, that the Principal was conscious others could hear him and he replied in a loud voice to stifle the conversation. The form was subsequently signed by the Principal later that day. The respondent states that the Principal was regularly stopped as he walked through the school for a variety of reasons. He always tried to be helpful when asked but this was not always possible. The respondent accepts that a notice was placed on the staff notice board in relation to the delay in filling posts in the school. It states the background to the notice was that the local trade union representative approached the Principal, informed him that teaching staff were asking questions about the delay in filling a number of posts, and asked that a notice explaining the delay be posted in the staff room and the Principal acceded to this request. No reference was made to the complainant. The Arbitrator's findings in respect of the complainant's appeal were not communicated to the school until 14 May, 2001, although the complainant was aware of the outcome from 22 March, 2001 and consequently, the notice remained on the board for that period.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me is whether or not Good Counsel College (i) discriminated against Mr. Dunbar on grounds of age, within the meaning of section 6 of the Employment Equality Act, 1998 and in contravention of sections 6, 8 and 31 of that Act, when it failed to appoint him to the post of Assistant Principal in October, 2000 and (ii) penalised him in circumstances amounting to victimisation within the meaning of section 74(2) of the Act. In reaching my decision I have taken into account all of the written and oral submissions made to me by both parties.
5.2 Section 6(1) of the Employment Equality Act, 1998 provides:
"For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated.".
Section 6(2) of the Act defines the discriminatory ground which includes, inter alia, the following:
"(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as "the age ground"),"..
Section 8(1) of the Act provides:
"In relation to --
(a) access to employment,
(b) conditions of employment,
(c) training or experience for or in relation to employment,
(d) promotion or re-grading, or
(e) classification of posts,
an employer shall not discriminate against an employee ......."
5.3 It is established caselaw of this Tribunal that in all cases of alleged discrimination the complainant must, in the first instance, establish primary facts from which it can be inferred that s/he suffered discriminatory treatment. This approach has also regularly been adopted by the Labour Court1. When such a prima facie case has been established the onus shifts to the respondent to rebut the inference of discrimination. This approach has its origins in issues of gender discrimination and is now part of Irish law with the coming into force of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 20012.
5.4 The respondent states that both candidates for the post were equally suitable and that their respective placement on the seniority list in the school was the determining factor in the selection process. It states that their respective placement on the seniority list was originally established because Mr. A accepted an offer of employment in July 1980 a number of days before the complainant did so. It also states that the seniority list used for the purposes of the competition was one dated February, 1999 and that this list had been prepared on the basis of all the preceding lists which were originally drawn up under the terms of the Fifth Agreed Memorandum on Posts of Responsibility. I find these comments conflicting in that only one method or the other could have been used to determine the most recent seniority list. Nonetheless, I propose to examine both statements.
5.5 The respondent stated in the course of its written submissions and its oral evidence at the hearing that in 1980, the then Principal placed Mr. A above the complainant because the former had accepted an offer of employment before the complainant had and his determined their respective seniority within the school, but it never became an issue because both were promoted and upgraded simultaneously through their careers. However, in the course of its final written submission to the Equality Officer, the respondent stated that as both candidates were considered suitable for promotion and both were equally qualified by virtue of equal service, the school had to find a way of deciding who was in fact senior. It therefore made a deliberate decision at the time of the competition (October, 2000), to examine the respective dates of the original offer and acceptance of employment in 1980 by both candidates and found that as Mr. A was first to accept the offer of employment, he was senior to the complainant. The respondent was unable to demonstrate that the approach which it asserts it adopted, is covered by any Departmental Circulars or other official procedures. I note that it is also contrary to the guidelines published by ASTI, which proposes that where two candidates cannot be separated as regards seniority, the final decision should be by drawing lots. I accept the respondent's argument that these are only guidelines from ASTI but in the event of no formal alternative, such a course may have been considered instead of the respondent effectively dismissing it out of hand. In light of the foregoing, I have concluded, on balance, that the relative seniority of the candidates was not determined by the method submitted by the respondent, either in 1980 or 2000.
5.6 The respondent also states that the seniority list used for the purposes of the competition was originally drawn up under the terms of the Fifth Agreed Memorandum on Posts of Responsibility. The criteria included in this Memorandum are the same as those included in the Department's original Circular 5/98. The defining criterion in both documents to decide seniority between two or more candidates, in circumstances where the other criteria has failed to separate them, is the date of birth of the candidates. This approach was not unlawful until 18 October, 1999 when the Employment Equality Act, 1998 came into force. No other guidelines or instruction were available to the respondent prior to the Department's letter in August, 2000 and I am satisfied therefore that the original seniority list(s), on which the list used for the competition were based, distinguished between the complainant and Mr. A by virtue of their respective dates of birth. This factor was removed from the formula for calculating seniority when the Circular was revised by the Department in its letter dated August, 2000. The respondent states that when it revised the seniority list on foot of this letter it did not result in any change in the respective seniority of the complainant and Mr. A. I do not accept this is the case. In my view, application of the revised terms to the seniority list would result in both the complainant and Mr. A having absolutely equal seniority. This point is acknowledged by the respondent in its submission of 25 February, 2003. I am satisfied that the seniority list used for the competition was therefore tainted by the application of historical information related to the ages of the complainant and Mr. A, which had been used to determine their seniority within the school. In light of the above I am satisfied that the complainant has discharged the burden of proof required of him (as set out at paragraph 5.3 above) in respect of the selection process and that the respondent has failed to rebut that allegation of discrimination. In light of this finding I do not propose to examine the allegations of indirect discrimination made by the complainant.
5.7 I shall now turn to the complainant's allegation of victimisation. Section 74(2) of the Act defines victimisation as follows:
"For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith --
(a) sought redress under this Act or any enactment repealed by this Act for discrimination ....,
(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,
(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or
(d) given notice of an intention to do anything within paragraphs (a) to (c)."
There is agreement between the parties that a discussion took place between the complainant and the Principal in relation to signing a form and that during this conversation voices were raised. I note that the form in question was signed by the Principal later that day and that the relationship between them was back to normal within days and remains amicable. I do not consider this incident to constitute victimisation of the complainant contrary to the Act. The second alleged incident of victimisation concerns the display of a notice on the staff notice board. The respondent states that this notice was prompted by a request from the local trade union representative because enquires had been made of him by teaching staff as to the delay in filling posts in the school and I accept this was the case. I also accept that it was reasonable for the school to keep other staff informed of developments and that such a practice would be the norm. A copy of the notice was furnished to me and it is accurate to state that there is no reference to the complainant contained in it. Nonetheless, I believe that other staff members were fully aware that the complainant had referred his appeal to the Arbitrator. I am also satisfied that the Principal was aware from the day after the results of the competition had been communicated to the complainant that he (the complainant) considered the selection process was discriminatory on grounds of age.
5.8 As I stated in the previous paragraph, I accept the Principal's explanation as to why he acceded to the request for such a notice. Nonetheless, the outcome of this notice, coupled with the long delay in the Arbitrator's findings becoming available - an issue which was not pursued by the respondent - was that the complainant suffered hostility from his colleagues, particularly during a union meeting in May, 2001, solely because he had sought to exercise his legal rights. In my view the posting of the notice for six months was emotive and contributed to the behaviour of his colleagues at that meeting. Consequently, I find that he was penalised in circumstances amounting to victimisation within the meaning of section 74(2) of the Act. The fact that the Principal did not intend this to be the case does not detract from this finding. However, I note the complainant was advised of the Arbitrator's findings on 22 March, 2001, about two months before the respondent was notified due to some error on the Arbitrator's part, and he did not raise the matter with the respondent. I find this odd in the circumstances and believe that had he done so he could have alleviated a lot of stress for all concerned and I have taken this fact into account in assessing the level of redress.
6. DECISION OF THE EQUALITY OFFICER
6.1 In view of the foregoing I find that the respondent:
(i) discriminated against the complainant on grounds of age within the meaning of section 6 of the Employment Equality Act 1998 and in contravention of sections 6 and 8 of that Act;
(ii) penalised the complainant in circumstances amounting to victimisation within the meaning of section 74(2) of the Act.
6.2 I understand that the complainant was appointed to a position of Assistant Principal with the respondent subsequent to the hearing. I therefore order, in accordance with section 82 of the Act:
(i) that the complainant's appointment is backdated to the same date as that of Mr. A and that all associated employment rights and benefits which would have accrued to the complainant in the relevant period are afforded to him;
(ii) that the respondent pay the complainant €6,500 by way of compensation for the distress suffered by him as a result of the discrimination;
(iii) that the respondent amend all seniority lists in its possession to reflect the fact that the complainant and Mr. A are equal in terms of seniority;
(iv) that the respondent take immediate action, with the relevant organisations, to identify how it should proceed in future where two or more candidates are equal in terms of seniority following the application of the appropriate Circulars etc. and that it should adopt this as its policy on that issue
(v) that the respondent take immediate action to ensure that all seniority lists in its possession are consistent with the Employment Equality Act, 1998.
_____________________________________
Vivian Jackson
Equality Officer
18 November, 2003
1 Revenue Commissioners v O'Mahony & Othrs EDA 033 and Flexo Computer Stationery Ltd v Coulter ED/03/10
2 S.I. 337 of 2001