DEC-E2005-007 Full Case Report

Ms Margaret O’Neill (Represented by the Equality Authority) -vs- Board of Management, St Gabriel’s National School (Represented by Arthur O’Hagan, Solicitors)

1. DISPUTE
   
   1. The dispute concerns a complaint that the Board of Management, St Gabriel’s National School, Ballyfermot discriminated against the complainant on the grounds of her marital status, family status and age contrary to the provisions of the Employment Equality Act, 1998 in the filling of a Deputy Principal position at the School.
      
2. BACKGROUND
   
   1. The complainant was employed as a teacher at the respondent school. The school held a competition to fill a Deputy Principal position at the school in September, 2000. The complainant was interviewed for the position and was unsuccessful. She appealed this outcome through the arbitration procedure and repeat interviews were held in February, 2001 however the outcome remained the same. She believes that she was discriminated against on the grounds of her marital status, family status and age in the conduct of the competition.
   2. The Irish National Teachers Organisation referred a complaint to the Director on behalf of the complainant on 22nd March, 2001. In accordance with her powers under section 75 of the 1998 Act, the Director delegated the case to Raymund Walsh, an Equality Officer, for investigation, hearing and decision on 18th April, 2001 and for the exercise of other relevant functions of the Director under Part VII of the Act. The Equality Authority informed the Equality Officer on 20th June, 2001 that the complainant had applied to it for representation and advised on 12th November, 2001 that representation had been granted. Submissions were sought from both parties and the Equality Authority furnished a submission on 19th April, 2002. The respondent’s legal representative, citing various delays, furnished a submission on 16th April, 2003 and a hearing of the complaint was held on 24th June, 2003. The parties submitted further material subsequent to the hearing and comments were exchanged up to 19th January, 2004. It was necessary to enter further correspondence with the parties in November, 2004 in order to confirm the date on which the complainant was notified of the outcome of the first interview as this could have a bearing on my jurisdiction to issue findings in relation to the conduct of the first interview. This correspondence concluded on 12th January, 2005.
      
3. SUMMARY OF THE CLAIMANT’S CASE
   
   1. The complainant, who was 48 years of age at the time, was employed as a teacher at St Gabriel’s National School and had 27 years service. She was appointed to a Post of Responsibility in 1998. The school advertised a position of Deputy Principal in September, 2000. The complainant applied for the position and attended for interview on 22nd September but was unsuccessful. The interview panel comprised the School Manager who chaired the panel, the Principal and an independent member. The complainant states that she was taken by surprise at the interview when the chairman asked her ‘considering that you have been teaching for 27 years, why would you now be bothered with the hassle of the job of Deputy Principal’. When the complainant referred to her attendance at a course on Education Management at Trinity College in 1999 the independent member commented that the course had been undertaken ‘only last summer’. The complainant believes these comments were a clear reference to her age and that the panel felt she had left it too late in life to seek such a post. The successful candidate who is under 30 years of age had 7 years service at the time of the competition while both candidates had held posts of responsibility for two years. The complainant believes that she was the more experienced of the two and that she was discriminated against on the age ground when she was turned down for the position.
   2. The complainant successfully appealed the outcome of the competition to an Arbitration Board. The Arbitration Board, which did not give reasons for its decision, directed that the candidates be re-interviewed for the position. The complainant and the earlier successful candidate were the only two candidates the second time round and the same candidate was successful on the second occasion. The complainant makes the point that two of the interview board members were the same i.e. the School Manager and the Principal and believes that an ageist ethos which was evident in the first interviews continued into the second. There were two new independent members on the second interview board however the complainant argues that she was not consulted in relation to their selection and questions their independence. The complainant argues that age bias at the school is evidenced by the appointment of younger candidates over older ones in recent years with a consequent change in the age profile at the school, particularly at management levels.
   3. The Equality Authority refers the Equality Officer to O’Mahony et al v Revenue Commissioners¹ and to a range of other caselaw which I do not consider necessary to mention here in seeking a finding of discrimination on the age ground against the respondent. A discriminatory question relating to age was found to have been asked of one of the complainants at interview in the above mentioned case.
      
4. SUMMARY OF RESPONDENT’S CASE
   
   1. The respondent states in the first instance that any complaint in relation to the conduct of the first interview held on 22nd September, 2000 is outside the jurisdiction of the present investigation as the complaint, which was referred on 22nd March, 2001, was referred a day after the expiry of the six month time limit set out in the 1998 Act and no application was made by the complainant to the Director that exceptional circumstances prevented the timely referral of the complaint.
   2. Without prejudice to its position as outlined above in relation to the first interview, the respondent states that the alleged comment was not made in the manner indicated and adds that it has appointed older candidates in the past although younger candidates were available. Subsequent to the hearing the respondent provided details of the ages of teaching staff at the school for each year from 1997 onwards. The respondent also provided copies of interview notes and states that it is clear from the notes that no ageist ethos pervaded the interviews as alleged.
   3. The respondent states that the independent members of the second interview board were nominated by the Education Secretary of the Archdiocese of Dublin in accordance with standard practice and not by the respondent and states that it would have been entirely inappropriate to consult the complainant in relation the independent nominees as suggested by her. The respondent states that the complainant did not object to the make up of the second interview board at the time and, referring to the Supreme Court in Corrigan v The Land Commission² , states that she cannot later object to its constitution when she did not get the desired result. The respondent rejects the suggestion that the complainant was unfairly disadvantaged by the introduction of new rules between the first and second interview which enabled the successful candidate to gain additional service marks for a period during which she was on leave of absence. The respondent states that the new rules were introduced by the Deptartment of Education and Science and applied to all such schools.
   4. The respondent provided marking sheets from each interview panel for each candidate and the marking sheets also included some interviewers’ notes. The respondent also provided a list of the criteria used and a list of questions to be asked of each candidate at the second interview. The respondent states that it was the view of the interview board that the successful candidate performed significantly better than the complainant in relation to “willingness to participate in the school’s management structure by undertaking the additional responsibility specified in the list of duties and in relation to capability to perform the duties attaching to the post” and this is reflected in the marking sheets. The respondent states that the complainant has failed to discharge the burden of proof and has failed to produce any evidence that she was the more suitable candidate for the position other than that she had the longer service. The respondent refers to the Labour Court in Dublin Institute of Technology v A Worker³ where it found that the complainant had failed to demonstrate prima facie evidence of discrimination at interview. The respondent suggests that the complainant’s reliance on length of service as a basis for preferential treatment is itself discriminatory on the age ground.
      
5. CONCLUSIONS OF THE EQUALITY OFFICER
   
   1. The matter for consideration is whether or not the respondent discriminated against the complainant on the grounds of her marital status, family status or age in terms of Section 6(2) of the Employment Equality Act, 1998 and contrary to Section 8 of that Act. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties to the case. It was clear from the evidence presented that the complainant made no substantive argument in relation to the marital status or family status grounds which were not mentioned in the Equality Authority submissions and that the complaint was one of discrimination on the age ground only. The respondent has argued that any complaint in relation to the first interview i.e. the interview held on 22nd September, 2000 is out of time as the complaint, referred on 22nd March, 2001, was one day outside the six month time limit laid down in the Act. Section 77(5) of the 1998 Act (prior to its amendment in 2004) states:
      
      (5) Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
      
      I note that the decision of the interview board was communicated to the complainant at a meeting of the Board of Management on 25th September, 2000. I am satisfied that the notification of 25th September, 2000 constitutes a more recent occurrence of the alleged discriminatory treatment and that the interview of 22nd September, 2000, on that account alone, would fall within the jurisdiction of this investigation. I am further satisfied that the interview of 8th February, 2001 and subsequent decision of the Board of Management not to appoint the complainant, both of which fell well inside the six month period preceding the referral, constituted further and more recent events in a chain of events which are the subject of the complaint before me. In my conclusions below I will find that the complainant was asked a discriminatory question at the initial interview but that the complainant has failed to establish prima facie evidence of discriminatory treatment in relation to the events which followed. While I found that no discrimination took place in relation to the most recent alleged occurrence, I am satisfied that nothing in Section 77(5) precludes a finding of discrimination in relation to an earlier connected event, which formed part of the original complaint, although it took place more than six months prior to the date of the referral.
   2. The principle of burden of proof as set out in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001 (SI 337 of 2001) is well established in equality caselaw in relation to gender complaints and has been similarly applied by Equality Officers in non-gender complaints which pre-date the 2004 Act. The Labour Court in Flexo Computer Stationery Ltd v Kevin Coulter in relation to the burden of proof in non-gender cases stated :
      
      "It is now established in the jurisprudence of this court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that contained in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (SI no 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v Southern Health Board [2001] ELR 201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If the two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed."
      
      It is for the complainant in the first instance to establishprima facie evidence from which it may be presumed that discrimination has taken place.
   3. Having accepted that the complaint in relation to the first interview was referred in time, I will now consider the conduct of the first interview. The complainant has stated that she was asked a discriminatory question (See 3.1 above) by the chairman of the interview board. Although the respondent’s submission states that no such question was asked, the chairman stated at the hearing that he did recall asking a question along the lines quoted but stated that the purpose of the question was to put the candidate at ease. He realised from the complainant’s reaction that he had made a mistake but reiterated that as far as he was concerned there was no ageist connotation in the question. He stated that ideally he would like to see the candidate with the longer service get the job and added that a 60 year old candidate was previously appointed to the position from an interview panel which he chaired. He also referred to a candidate in her late 50’s being appointed to an A post (post of responsibility). The Equality Authority referred to O’Mahony et al v Revenue Commissioners, Equality Tribunal (ibid) where this Equality Officer concluded that a similar question was discriminatory on the age ground and this finding was upheld by the Labour Court on appeal⁴. The weight of other evidence in that case was supportive of a finding of discrimination on the age ground on a range of other issues however insofar as the discriminatory question is concerned, I consider it relevant. It is clear from the chairman’s own evidence that the complainant reacted unfavourably to the question and coming at an early stage in the interview, I am of the view that the question could have impacted on the complainant’s performance at interview, although this was not claimed in the complainant’s exhaustive appeal submission to the arbitrator where she states she clearly demonstrated her capability to carry out the duties of Deputy Principal in her application and interview. Whatever the intention behind the chairman’s question, it is established in equality caselaw on age discrimination that such questions will be deemed discriminatory. In relation to the first interview therefore, I am satisfied that the complainant has established prima facie, that discrimination took place when she was asked a discriminatory question and I find accordingly.
   4. The complainant successfully appealed the outcome of the first interview to an arbitrator however the arbitrators findings were not made available. The complainant and the successful candidate were subsequently re-interviewed. When I found that a discriminatory question was asked at the first interview I left open the possibility that this may have adversely impacted on the complainant’s performance at interview. In such a case I would order, where possible, that the complainant be re-interviewed by a different interview board and I refer to my decision in Hughes v Aer Lingus⁵ in this regard. The situation was somewhat different in that case to the extent that the respondent was dealing with a large number of applicants for a large number of posts and several interview boards were established. In the present case the second interview board comprised two of the same members from the first interview board and the complainant believes that any bias present at the first interview would be carried into the second interview. I am satisfied however that the presence of two new independent members provided a satisfactory degree of balance on the second interview board.
   5. Having examined the marking sheets and comments from the two interview boards and having further heard the evidence, particularly of the independent members on the second board, I am satisfied that there was no evidence that they were influenced by the complainant’s age but that they had clear reservations with regard to the complainants performance at interview and her answers to certain questions. I note that the complainant’s CV comprises four pages of textual description of her various qualities and achievements before details of her formal education and training are listed and I can understand how such lengthy pursuit of detail could militate against a candidate in the short time available at interview.
   6. In relation to the age profile of teachers at the school, I note that the average age of the twenty serving teachers in 2002 was 29 as against the average age in 1997 of about 41 years. I note that the average age of new entrants in recent years has been about 24 years of age (no figures for the ages of applicants were provided). The respondent furnished details of promotions over the last seven years and I note that the last appointments to Deputy Principal and Assistant Principal posts in 1998 were aged 61 and 58 respectively. I note that only 6 of the 20 teachers serving in 2002 had been with the school in 1997 so clearly there has been a high level of turnover in the intervening period and this might explain the drop in average age of teachers at the school. The respondent also argued at the hearing that the school was located in a disadvantaged area and that this militated against the recruitment of older teachers however the Authority objected to this new evidence being introduced, particularly as it was not supported by any statistical evidence. I note the ages of the last appointments to the grades of Deputy and Assistant Principal and I do not consider the above figures to be supportive of the complainant’s contention that there is deliberate policy of discrimination against older teachers at the school.
   7. The complainant has argued that the new rules for the calculation of marks for service as promulgated by the Department of Education and Science in the period between the first and second interviews had the effect of giving the successful candidate an additional benefit at the second interview arising from discriminatory treatment at the first interview. I note however that the additional 3 marks which the successful candidate was awarded in respect of one year’s leave of absence (excluded at the first interview) was less than the difference between the two candidates i.e. appointee 209 marks, complainant 200 marks. I note also that the school had no role in the determination of the marking scheme in respect of years of service. I must conclude therefore that the award of additional service marks to the appointee at the second interview was not discriminatory.
   8. In conclusion therefore I find that the complainant was asked a discriminatory question related to the age ground at the first interview however I am satisfied that the complainant has failed to establish prima facie evidence in relation to the conduct of the second interview which is sufficient to create an inference that discrimination on the age ground took place.
      
6. DECISION
   
   1. On the basis of the foregoing, I find that the Board of Management, St Gabriel’s National School, Ballyfermot d id discriminate against the complainant on the grounds of her age in terms of Section 6(2) of the Employment Equality Act, 1998 contrary to the provisions of Section 8 of that Act when she was asked a discriminatory question at interview for the position of Deputy Principal on 22nd September, 2000.
   2. I order that the respondent pay to the complainant the amount of €5,000 in compensation for the distress that she has suffered in the matter. The parties are referred to the provisions of Section 7 of the Finance Act, 2004 which exempts from income tax, certain awards unrelated to pay made on or after 4th February, 2004, in respect of the infringement of an employee’s statutory rights. The above award constitutes compensation for the effects of breach of the complainants’ rights under the 1998 Act including the distress caused and does not include any element of lost income.

Raymund Walsh ,
Equality Officer
7 February, 2004

¹O’Mahony et al v Revenue Commissioners, Equality Tribunal DEC-E-2002-018,
²Laurence Corrigan v Irish Land Commission, Supreme Court 1977 Irish Reports 317 SC,
³Dublin Institute of Technology v A Worker, Labour Court DEE994,
⁴Labour Court ADE/02/9 Determination No.033,
⁵Hughes v Aer Lingus, Equality Tribunal, DEC-E-2002-049