McGinn(Represented by the INTO) V Board of Management St. Anthony's Boys National School, Kilcoole, Co. Wicklow(Represented by Ms. Kimber B.L. instructed by Arthur O'Hagan, Solicitors) and Department of Education & Science
1. DISPUTE
1.1 This dispute concerns a claim by Ms. Margaret McGinn that the Board of Management of St. Anthony's Boys School, Kilcoole, Co. Wicklow discriminated against her in terms of Sections 6(1), 6(2)(a) and 6(2)(b) of the Employment Equality Act, 1998 and in contravention of Section 8 of that Act when she was asked a discriminatory question at interview and failed to be appointed to the position. The complainant also alleges that she was subjected to victimisation by the respondent in terms of Section 74(2) of the 1998 Act. By letter dated 18th July, 2003 the complainant withdrew her claim of discrimination on the grounds of marital status.
1.2 The complainant referred a complaint to the Director of Equality Investigations on 27th November, 2001 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the case to Gerardine Coyle, Equality Officer on 12th February, 2002 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were received from all parties to the claim and a joint hearing took place on 18th June, 2003. Further information and submissions were received from the parties and a second hearing took place on 5th May, 2004. Subsequent to this hearing further information was received from all parties and the last information was received from the Union on 4th June, 2004.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 It is the complainant's contention that she has been discriminated against on grounds of gender in terms of Section 6 of the Employment Equality Act, 1998 and in terms of the European Equal Treatment Directive (76/207E.C.) arising from the manner in which she was treated in relation to the following:
- The manner in which the position of Principal of St. Anthony's Boys National School was filled by the respondents;
- The respondent's failure to appoint the complainant to the position of Principal Teacher for which she was the most suitably qualified and experienced candidate; and
- The respondent's appointment of a less suitably qualified and experienced male candidate to the position of Principal Teacher instead of the complainant.
It is the complainant's submission that her evidence discharges any burden of proof that may be found to rest on her to prove that she has been less favourably treated on grounds of gender. In the alternative the complainant submits that there is sufficient evidence in this case for the burden of proof to be shifted to the respondents to prove that the complainant was not discriminated against on grounds of her gender. The complainant seeks appointment to the position of Principal of St. Anthony's Boys National School and financial compensation for the distress and loss she has suffered as a result of the discriminatory treatment by the respondents.
3.2 According to the complainant she is a qualified national teacher who has taught in the respondent school since September, 1978. The position of Principal arose following the retirement of the post holder in the Summer of 2001. The complainant notes that she has 23 years teaching experience, all of which were in the respondent school. She states that she has first hand experience of teaching all grades in the school and has extensive experience of management in the primary sector. In this regard the complainant notes that she was promoted to the post of Special Duties teacher (formerly Grade B post) and she has been a member of the School's Board of Management as a Teacher's representative. According to the complainant she has accumulated several qualifications in addition to her teaching qualification including a Higher Diploma in Education and several certificates relating to the teaching of areas of the curriculum in primary schools e.g. Health Education, Dance and Movement in Education and Teaching French as a foreign language. The complainant states that she has an excellent teaching record and she has obtained excellent assessments of her teaching by various inspectors. It is the complainant's submission that she has a record of active involvement over the past 18 years in the development of music in the school specifically the formation of the School Choir. The complainant says that she has actively promoted the use of Information and Communication Technology within the school and she has created the class web page. According to the complainant she has been commended in her work in terms of her effectiveness and vision and she has demonstrated commitment to extra curricular activities through her extensive involvement in musical activities in the local community.
3.3 The complainant notes that the procedures for the appointment of Principal teachers provides, inter alia:
- that the post shall be advertised in a daily newspaper;
- that a Selection Board shall be constituted and shall comprise the Chairperson of the Board of Management of the school and at least two independent assessors;
- that the Selection Board shall establish criteria for the assessment of the applications and shall decide upon the applicants to be called for interview;
- that records of the criteria and of the interviews shall be kept by the Chairperson of the Selection Board;
- that care must be taken to ensure that the criteria do not lead to discrimination against any applicant and that "no question shall be asked nor information sought in any form from a candidate which might be construed as being discriminatory";
- that professional qualifications, teaching experience, other relevant experience and references should be taken into account; and
- that the Board of Management shall appoint the teacher subject to the approval of the Patron of the School and the sanction of the Minister for Education and Science.
3.3 According to the complainant the post of Principal was initially advertised in the Irish Independent on the 25th April, 2001 and the complainant attended for interview on 29th May, 2001. It is the complainant's contention that the confidentiality of the interview process was breached by the Chairperson of the Board of Management when the School's Fund-raising and Social Committee was informed of the names of two applicants for the post. The complainant also contends that she was subsequently discriminated against by the Selection Board in the course of the interview and thereafter by the Chairperson of the Board of Management in the school. The complainant submits that during the interview which took place on 29th May, 2001 she was questioned about her suitability to be appointed to the post in light of her gender and in terms of whether a female principal in a Boys School would pose a problem from a role model point of view in light of the few males in the education sector. The complainant says that whilst she was commended on her "wonderful" performance by the Chairperson of the Board of Management the complainant submits that this particular line of questioning by the Chairperson constituted discrimination on the grounds of gender and demonstrated a predisposition on the part of the Board of Management to appoint a male teacher to the position of Principal. The complainant contends that this discriminatory question would not have been asked of male candidates.
3.4 Following the interview the complainant was informed that she had not been successful in her interview. Subsequently on 6th June, 2001 the complainant notes that the Chairperson of the Board of Management visited the school staff room during the mid morning break and met with the teachers. He explained to the teachers how the successful candidate was selected and he gave details of the selection process. According to the complainant the Chairperson named five candidates who had been interviewed, outlined which candidate was selected by each of the interviewers as their choice for appointment to the post of Principal and itemised reasons why individual teachers were not selected. In relation to the unsuccessful female candidate (i.e. the complainant) the Chairperson said "Bean maith í ach bean sa phost i scoil lán buachaillí, ní bhéadh sé sin oiriúnach" (She is a good woman but a woman in the position in an all boys school would not be appropriate). According to the complainant he also stated that the person chosen to be Principal had been his first choice of candidate for the position. The complainant states that she was reaffirmed in her belief that the Board of Management had discriminated against her on the grounds of her gender. The Union, on behalf of the complainant, wrote to the Department of Education and Science and the Board of Management on the matter. It is the complainant's contention that the contents of the response from the Chairperson of the Board of Management affirms that discrimination on the basis of gender had occurred in the selection process.
3.5 Following the challenge to the interview a new interview panel was established to re-interview candidates for the position of School Principal. Interviews were arranged for 20th July, 2001 and the complainant attended on that day for interview. Then on 26th July, 2001 the complainant was informed by the Chairperson of the Board of Management that the post had to be re-advertised as the rules and procedures for the appointment of the Principal Teachers had allegedly been breached. The complainant contends that on 14th September, 2001 the new Chairperson of the Board of Management gave a public endorsement to the eventually successful candidate at a time when interviews for the post of Principal were pending. According to the complainant a third interview for the Principal position was held on 20th October, 2001 and the complainant was informed by letter dated 22nd October, 2001 that she was unsuccessful in her application. The complainant states that the original candidate proposed following the first set of interviews was affirmed in the position of Principal.
3.6 The complainant submits that the reason for her non-appointment following the interviews on 20th July and 20th October, 2001 was that the discrimination which had occurred during the first set of interviews continued and that as a result she was not appointed. The complainant maintains that the membership of the Board of Management had not changed and that notwithstanding a new Chairperson, the Selection Board and the Board of Management must have been influenced by the overt discriminatory approach of the first interview. It is therefore her claim that she has been discriminated against arising from all three interviews and as a result was not appointed to the Principal position in the school. The complainant asserts that the outcome of the third interview, the appointment of the original successful male candidate, is indicative of the discrimination on the part of the respondent from the outset. It is the complainant submission that the Selection Board did not give due regard to her experience, qualifications and suitability for the post. The complainant contends that she should have scored higher than the successful appointee at interview and should have been appointed to the post. The complainant does not accept that the subsequent re-interviews provided redress for the original discrimination.
3.7 It is the complainant's submission that the conduct of the first interview negatively affected her in that she was obliged to complain about the discriminatory comments of the Chairperson of the Board of Management concerning his preference for a on-female Principal and that she was placed in an invidious position in the succeeding interviews. According to the complainant she was deprived of the positive managerial support to which the quality and duration of her service to the School might have entitled her and this positive endorsement was not available to her at the second and third interviews, hence placing her at a disadvantage. It is the complainant's further assertion that her challenge to the first interview was a challenge to the Patron body for Catholic Schools in the Diocese of Dublin which is responsible for sanctioning the appointment of Principals within the Diocese and therefore adverse attention was brought to her candidature.
3.8 The complainant states that she is concerned that her career prospects may have been adversely affected by virtue of her challenge to the gender discrimination following the original interview on 26th May, 2001. She is also concerned at the change in treatment of her by local clergy with regard to her voluntary work as organist and director of the Boys School Choir for Sacramental and Christmas services. The complainant says that she has voluntarily performed these roles for 18 years and has always been named, acknowledged and thanked by the clergy, but since her challenge to the original interview, this has all changed. In this regard the complainant states that on 15th February, 2002 at the confirmation ceremony she was not included in the list of people thanked even though she had been the organist for the ceremony and this she notes was a change from previous practice. At a celebratory meal following the ceremony the complainant says that her name was again omitted from the after dinner speeches. There had been four teachers involved in the preparations for the ceremony and the three other teachers were named and thanked for their contribution to the day. According to the complainant, not only was this personally upsetting and publicly embarrassing for her, it was also professionally damaging given that it took place in the presence of management and staff of the Girls National School with whom she liaises throughout the year. Although the complainant received an apology from the Principal Teacher and a subsequent acknowledgement of her work with the Choir, the complainant is of the opinion that personal and professional damage has been done to her by the withdrawal of the clergy's usual expression of acknowledgement for her work.
3.9 The complainant contends that given the general trend in the Republic of Ireland of appointing male teachers to the post of Principal Teacher it must be concluded that the failure to appoint her to the post of Principal Teacher amounted to discrimination on the grounds of gender. The complainant further submits that her failure to be appointed is indicative of a discriminatory and prejudicial attitude on the part of the respondents which is also reflected in the pattern of appointments to the position of Principal Teachers in Ireland and is consistent with traditional perceptions that male teachers are more suitable for appointment as Principal Teachers of primary schools. According to the complainant the following statistics (supplied by the Department of Education and Science on gender breakdown of Principal Teachers at 31st December, 2000) bear out this point:
1691 male principals
1623 female principals
The complainant notes that male teachers comprise only in or about 20% of the primary teaching population and female teachers comprise approximately 80% and says that clearly the proportion of male teachers who are appointed to the position of Principal Teacher is significantly higher than their female counterparts. The complainant says that this clear distinction in terms of the proportion of male and female teachers appointed confirms that the traditional pattern of appointments of male and female teachers to the post continues. It is the complainant's contention that this pattern is indicative of traditional and stereotypical perceptions that male teachers are more suitable to the post of Principal Teacher and is contrary to the 1998 Act. Without prejudice to the argument that the complainant was discriminated against on the grounds of gender she also submits that the statistical evidence causes the burden of proof to shift to the respondents to prove that their failure to appoint the complainant to the position of Principal Teacher can be justified on objective grounds other than her gender.
3.10 It is the complainant's contention that the Department of Education and Science is a party to the contract of employment between the Board of Management and the teacher. According to the complainant the appointment of a teacher by a Board of Management is subject at all times to sanction and approval by the Department of Education and Science, to the Rules for National Schools and more recently to the Education Act, 1998. In this regard Section 23(1) of the Education Act, 1998 states:
"A board shall, in accordance with procedures agreed from time to time between the Minister, the patron, recognised school management organisations and any recognised trade union or staff association representing teachers, appoint to the school in a whole-time capacity a person to be Principal of that school subject to such terms and conditions as may be determined from time to time by the Minister with the consent of the Minister for Finance".
In addition, Section 24 of the 1998 Education Act provides:
"The numbers and qualifications of teachers and other staff of a school, who are to be paid from monies provided by the Oireachtas, shall be subject to the approval of the Minister, with the concurrence of the Minister for Finance. A board shall appoint teachers and 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 staff associations representing teachers or staff as appropriate".
The complainant states that the Education Act, 1998 places the Minister and the Department of Education and Science in a central role vis-à-vis the administration of schools specifically including the appointment, suspension and dismissal of teachers/Principals. It is the complainant's contention that the Department of Education and Science performs key functions which are essential to the employment of teachers, including authorising Boards of Management in the first instance to fill vacancies, sanctioning teacher appointments as specifically provided in the Rules and Constitution of Boards of Management, the payment of teachers, involvement in negotiation and approval of teachers' conditions of employment and also, the disciplining of teachers, as provided for in the Rules for National Schools and the Education Act, 1998.
3.11 The complainant refers to a Determination of the Employment Appeals Tribunal in the case of Cecilia McGovern v Department of Education and Science1 in which it
was claimed that the claimant had a three headed employer namely the Board of Management, the Department of Education and Science and the Minister for Education. According to the complainant the Board of Management made the appointment but all appointments were subject to the Minister's and the Department's Rules for National Schools. The complainant states that the Department of Education and Science decided on the duties of the National Teacher and also decided on the description to be put on the appointment. In this case the Employment Appeals Tribunal held, inter alia, that the teacher was employed by the Board of Management, as agent for the Minister for Education and that the Department of Education and Science had an overall supervisory function and the ultimate say in the appointment of the teacher. The complainant further notes that in a Determination of the Labour Court2 to an appeal of a Recommendation of an Equality Officer3 the Labour Court contended that the Department was the employer for the purpose 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 Ms. Condon".
The complainant notes that the position is equally the same under the Payment of Wages legislation and says that there are various determinations upholding the teacher's right to pursue the Department of Education and Science as employer in relation to issues of salary and pay.
4. SUMMARY OF THE FIRST NAMED RESPONDENT'S SUBMISSION
4.1 The first named respondent notes that the complainant claims that she has been discriminated against on the grounds of gender in terms of Section 6 of the Employment Equality Act, 1998 and in terms of the European Equal Treatment Directive arising from the manner in which she alleges she was treated by the respondents in relation to the manner in which the position of Principal Teacher of St. Anthony's Boys National School was filled by the respondent, the respondent's failure to appoint the complainant for the position of Principal Teacher of St. Anthony's Boys National School and the respondent's appointment of an allegedly less suitably qualified and experienced candidate to the position of Principal Teacher instead of the complainant. The first named respondent denies that it is guilty of any discrimination pursuant to Section 6 of the Employment Equality Act, 1998 or otherwise.
4.2 According to the first named respondent the complainant claims discrimination in the manner in which an interview was conducted with her on or about 29th May, 2001. As a result the complainant's trade union wrote to the respondents by letter dated 21st June, 2001 making allegations of discrimination pursuant to the Employment Equality Act, 1998. The first named respondent notes that in that letter the trade union representative specifically referred to an alleged breach of the Employment Equality Act, 1998 and called upon the second named respondent to investigate alleged breaches of procedure without prejudice to the complainant's rights under the Employment Equality legislation. In those circumstances the first named respondent says that the complainant and her trade union were aware of the complainant's entitlements pursuant to the 1998 Act at that time and presumably were aware of the time limits imposed on the complainant by that legislation. The first named respondent notes that the complainant attended for two further interviews for the Principal position on 20th July and 20th October, 2001. On 22nd October, 2001 the
complainant was informed in writing that her application was unsuccessful and that the position had been filled.
4.3 The first named respondent submits that, following this interview, the complainant seeks to make the case that the reason for her non-appointment following the interviews on 29th May, 20th July and 20th October, 2001 was:
"That the discrimination which had occurred during the first set of interviews continued and that as a result she was not appointed". The first named respondent states that the Equality Officer has no jurisdiction to deal with any matter relating to the interview of May, 2001 as no claim was brought within six months of that interview as the complaint was obliged to do pursuant to Section 77(5) of Employment Equality Act, 1998. The first named respondent contends that Section 77(6) of the 1998 Act is not relevant as the complainant has not adduced any evidence of exceptional circumstances that might justify the extension of the six month period to twelve months.
4.4 Without prejudice to the foregoing the first named respondent denies that any discrimination on grounds of gender took place in the course of the interview that took place on 20th October, 2001 or in the fact that the complainant was not appointed to the position of Principal Teacher for St. Anthony's Boys National School or in fact that another candidate was appointed to that position. The first named respondent states that it is satisfied that the successful candidate was superior to the complainant and was deemed to be so on the basis of a fair and non-discriminatory interview. According to the first named respondent the complainant was specifically asked, during the course of her interview, if she was happy with the manner in which the interview was conducted and she replied in the affirmative. In these circumstances the first named respondent contends that it is not now open to the complainant to make allegations or discrimination arising from the manner in which that interview was conducted and/or from the fact that she was not appointed to the position of Principal.
4.5 According to the first named respondent the same questions were asked of the complainant as were asked of all other candidates including the successful appointee. The first named respondent states that each of the candidates was assessed in a similar manner and without regard to gender. Furthermore the criteria applied by the Selection Board were agreed upon beforehand and were objective, relevant and non-discriminatory. In supporting its case that there was no discrimination on grounds of gender the first named respondent relies in particular on the fact that another female candidate was listed as suitable for appointment to the position of Principal Teacher although the successful appointee was listed ahead of her.
4.6 The first named respondent states that it does not have any notes from the interview that took place on 20th October, 2001 as these notes were mislaid. However it did submit comprehensive notes for the interviews which took place on 20th July, 2001. The first named respondent relies on the Determination of the Labour Court in Dublin Corporation v J. McCarthy4 where the Court found that the interview board in that case "did not maintain adequate notes on the performance of the candidates" but nevertheless the Court concluded "that the result was a fair and objective assessment of the overall suitability of the candidates". In that case the Labour Court overturned the recommendation of the Equality Officer that the complainant should be appointed to a comparable position to that for which she had unsuccessfully interviewed.
4.7 The first named respondent notes that the complainant has relied on the alleged general "trend" in Ireland of appointing male teachers to the post of Principal on the basis of the present statistical breakdown of Principal Teachers by gender. It is the first named respondent's submission that a more sophisticated analysis of the statistics provided by the complainant would be required in order to establish that the statistics in themselves provide either evidence of discrimination or sufficient evidence to shift the burden of proof to the respondents to prove that the complainant was not subjected to unlawful discrimination. According to the first named respondent the complainant has not adduced any evidence of the number of female applicants for the position of Principal at the time of the appointment of each of the male principals referred to by her. The first named respondent states that the complainant has not provided any analysis as to when these men were appointed to the position of Principal. The first named respondent relies on the decision of the Equality Officer in the case of Turley-McGrath v Donegal VEC5 where the relevant statistics were examined on the basis of the percentages of men and women who actually applied for promotion rather than the number of male and female senior appointees. Applying that point to the facts of this case where there were both male and female candidates the first named respondent does not accept that the statistical evidence adduced by the complainant is in any way relevant to her contention that she has been a victim of unlawful discrimination.
4.8 The first named respondent reserves its position and its right to make further submissions on the issue of an appropriate remedy should the Equality Officer find that the complainant has been discriminated against on the grounds of her gender. However the first named respondent states that it would not be appropriate for the Equality Officer to direct the respondent to make a position of Principal available to the complainant. In this regard the first named respondent relies on the decisions of the High Court in the cases of The State (Cussen) v Brennan6 and Minister for Education v Letterkenny RTC7 which the first named respondent says are binding on the Equality Officer. The first named respondent asks that this claim be dismissed as it is satisfied that no act of discrimination was perpetrated by it against the complainant.
5. SUMMARY OF THE POSITION TAKEN BY THE SECOND NAMED RESPONDENT
5.1 The second named respondent states that the Minister for Education and Science is not the complainant's employer. She is employed under a contract of employment with the first named respondent and the second named respondent is not a party to this contract. Hence it is the second named respondent's contention that it is not properly a party to this complaint. The second named respondent says that it 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. Alternatively the first named respondent 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. According to the second named respondent authority for this position can be found in statute and case law.
5.2 The second named respondent cites Section 24(3) of the Education Act, 1998 as an authority for its contention that the first named respondent has responsibility for appointing "teachers and other staff" of a school. In carrying out this function the second named respondent states that the first named respondent does not act as an agent of the Minister nor has the Minister any role in the appointment of the second named respondent which is the statutory responsibility of the Patron of the school in accordance with Section 14(1) of the Education Act, 1998.
5.3 The second named respondent cites the High Court judgement in the case of Tobin v Minister for Education and Science8. This involved a challenge to his dismissal by a former teacher of Mayfield Community School. While community schools, unlike national schools, are governed in accordance with a Deed of Trust and Instrument of Management the second named respondent states that the relationship between the Board of Management and the Department is almost identical in relation to employment issues. The second named respondent notes that having reviewed the operation of the Deed as regards who is the employer of teachers in community schools Mr. Justice Kearns concluded "... I am satisfied that the Applicant was employed by the First and Second named Respondents [i.e. the Chairman and Secretary of the Board of Management] and that they, not the Third named Respondent [i.e. the Minister] purported to dismiss him".
5.4 The second named respondent submits that the relationship of the State and schools is not confined to statute and notes that it derives from the provisions in our Constitution where the State has a Constitutional obligation under Article 42.4 to provide for free primary education. As set out in the Supreme Court ruling in the case of Crowley v Ireland9 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". The second named respondent also notes that Mr. Justice Kenny in talking about the Constitution and the intellectual climate of 1937 in the Crowley case held that "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". According to the second named respondent this same fundamental relationship continues in operation today.
5.5 The second named respondent states that it did not act in breach of the Employment Equality Act, 1998 as 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 of Management notifies the Department's Primary Payments Section in order that the teacher can be paid the appropriate principal's allowance. In this case the Minister had no knowledge that applications were being sought and interviews held for the post of Principal until the first interview process had been completed.
5.6 In June, 2001 the Union, on behalf of the complainant, wrote to the Chairperson of the Board of Management of St. Anthony's Boys National School and the second named respondent to raise issues in relation to the interview for the principal position. The Chairperson of the Board of Management advised the second named respondent that the post of Principal had been re-advertised. According to the second named respondent this is the only involvement it had in this case apart from inputting the details regarding the teacher appointed to the post on the database and ensuring that the person satisfied the criteria for appointment to the post.
6. SUMMARY OF SUBMISSION FROM COMPLAINANT - VICTIMISATION
6.1 While the complainant did not specify victimisation on her referral form it is her contention that the Equality Officer is fully entitled to make a determination regarding the victimisation aspect of this claim. It is the complainant's contention that her claim of discriminatory treatment must encompass victimisation as victimisation itself is a form of discrimination. The complainant states that, pursuant to Section 76 of the 1998 Act she submitted from ODEI 3 to the respondent for a response. No response was forthcoming and the complainant alleges that, as a result, she was hampered in not receiving the requisite information to supplement her submission. The complainant further notes that, on the eve of the first hearing of this claim, she received for the first time a copy of a letter sent by the Chairman of the Board of Management and Chairman of the first interview board to the second named respondent. She alleges that this letter reflected a prejudicial attitude towards her following which she experienced the withdrawal of recognition for her work.
6.2 The complainant contends that she was victimised as a result of her challenge to the initial interview for the position of Principal in the respondent organisation and this victimisation continued throughout the appointment process and subsequently. The complainant sets out the following examples:
(a) On 26th June, 2001 the then Chairman of the Board of Management wrote to the second named respondent and described the complainant's complaint as "spiteful". He also referred to the fact that she had been ranked fifth in the competition and the complainant notes that this was factually untrue. The complainant alleges that this attitude towards her meant that she was victimised on an ongoing basis. Furthermore the complainant alleges that damage was caused to her reputation and good name by virtue of this unanswered letter remaining on file in the organisation of the second named respondent. The complainant notes that the author of this letter, while no longer Chairman of the Board of Management of the first named respondent, still holds an influential position as local curate and Chaplain of the School. In these roles, she claims, his judgement and opinion carry weight.
(b) The complainant states that, for over twenty years, she has been extensively involved in the annual preparation of pupils from the school for Confirmation and Communion ceremonies in the parish. The complainant prepares the musical arrangements and choirs for the ceremonies. Over the years she has received public accolade from the altar for her preparatory work for these events. This did not, however, happen in 2002 and the complainant alleges that the reason for the change was because she had pursued a claim under the Employment Equality Act, 1998. At the Confirmation ceremony in February, 2002 the complainant notes that all other teachers, involved in the preparations, were named and thanked with the exception of herself. She states that this was noted by colleagues, students and parents who approached her afterwards about not having been publicly thanked and subsequently made representations on her behalf. As a result of these representations a tribute was paid to her in the following edition of the School Newsletter. The complainant notes that this again happened at the Communion ceremony in May, 2002 and a note of thanks was placed in the School Newsletter. Later in December, 2002 the complainant states that she was omitted from the mention of thanks even though she had trained the boys choir for the carol service. It is the complainant's conclusion that the unfair and discriminatory attitude which existed against her, on foot of her claim of discrimination, could not but have permeated to the full Board of Management and that the prospects of being appointed to the Principalship of the School were adversely affected as a result. Furthermore he complainant notes that, at the second interview for this position, each member of the interview panel commenced the interview by expressing their concerns at how difficult it must have been for her to present again for interview. It is the complainant's contention that the Selection Board was appraised of what had happened after the first set of interviews.
6.3 The complainant contends that the above demonstrates that she was victimised as a result of her claim of discrimination and she submits that prima facie evidence has been presented in order to shift the burden of proof10. Further Statutory Instrument 337/2001 confirms that where facts are established by or on behalf of a person for which it may be presumed that there has been direct or indirect discrimination in relation to him or her, it shall be for the other party concerned to prove the contrary. The complainant states that her adverse treatment was connected with her challenge, made in good faith, to oppose the unlawful discriminatory treatment sustained by her arising out of the first interview. According to the complainant this treatment continued throughout 2002 notwithstanding the fact that she had a claim before the Equality Tribunal. The complainant cites from the Equality Officer Decision in the case of McCarthy v Dublin Corporation11, upheld by the Labour Court12 in which the Equality Officer stated as follows:
"the victimisation of a person for having, in good faith, taken a claim under the Employment Equality legislation is very serious as it could have the impact of undermining the effectiveness of the legislation and is completely unacceptable".
6.4 The complainant, in her submission, refers to the Equality Officer Decision in the case of Bleach v Our Lady Immaculate Senior School and the Department of Education and Science13. She notes that the Equality Officer in concluding that victimisation had occurred identified a number of factors "relevant to a claim of victimisation" namely a lack of transparency in the appointment process, inconsistencies in the respondent's evidence in relation to a range of matters including the interview notes and the theft of various documentation. The complainant submits that these factors apply equally to her claim. The complainant notes that, in the Bleach case, the Equality Officer found that the question "has this been a fair interview" to be "... wholly inappropriate as the candidate is compromised in answering the question". According to the complainant this question was put to her at the end of her second interview.
7. SUMMARY OF THE SUBMISSION ON VICTIMISATION FROM THE FIRST NAMED RESPONDENT
7.1 According to the respondent the Equality Tribunal has no jurisdiction to make any determination in respect of victimisation in this claim. The respondent submits that the complainant is out of time in relation to any claim of victimisation noting that the Employment Equality Act, 1998 sets out a strict time limit of six months for the making of a claim of redress in respect of discrimination or victimisation and the respondent contends that the Equality Tribunal must exercise its jurisdiction within these time limits. The respondent rejects the complainant's submission that victimisation is itself a form of discrimination and notes that the 1998 Act quite clearly separates both acts and clearly views them as separate forms of complaint. Hence the respondent argues that the referral of a complaint of discrimination does not and cannot be said to include a claim of victimisation. The respondent further states that the complainant clearly did not refer a complaint of victimisation when she completed her referral form ODEI 1 and in form ODEI 3 the respondent notes that the complainant did not state that she was being victimised. In relation to her submission dated 7th May, 2002 the respondent states that the complainant did not make any reference to having suffered victimisation even though the events relating to the alleged victimisation had already taken place.
7.2 The respondent submits that the strict time limits are set out in the 1998 Act by the Oireachtas in line with Article 37 of the Constitution and therefore the Equality Tribunal, as a creature of statute exercising limited judicial functions, must comply with these time limits. According to the respondent a strict approach has been taken by the Equality Tribunal to time limits and extensions beyond six months have only been allowed in the most exceptional circumstances. The respondent states that between forms ODEI 1 and 3 the complainant was invited on three separate occasions to indicate whether or not she was making a claim for victimisation. On all three occasions, the respondent contends that, the complainant expressly stated that she was not making a claim in relation to victimisation. The respondent notes that these forms were completed by the complainant having had the benefit of professional advice. It is the respondent's submission that to allow the complainant to amend her claim during the course of the first oral hearing to admit a ground which she has expressly rejected when formulating her claim is to allow her to subvert the time limits set out in the 1998 Act.
7.3 The respondent rejects any argument that the complainant was hampered from fully formulating her claim due to lack of information as the respondent states that the allegations of victimisation relate to matters and activities entirely within the complainant's knowledge. The letter from the Chairperson of the Board of Management and the Chairperson of the first interview board is, according to the respondent, merely an expression of an opinion and is not a new act of victimisation and does not disclose any new acts of victimisation of which the complainant was unaware. The respondent further notes that the complainant in her submission dated 7th May, 2002 does not state that she was been victimised even though she does mention the incident which she alleged took place on 15th February, 2002. According to the respondent if the complainant had experienced victimisation as part of her complaint of discrimination she was required to set out same in a claim to the Equality Tribunal within six months of the date of the last act of victimisation. As the complainant did not make such a claim for redress for victimisation the respondent states that it is not now open to her to alter her complaint to include victimisation when she has expressly excluded it. The respondent submits that, had the complainant wished to make a complaint of victimisation, the correct procedure for so doing was to make a separate and additional complaint of victimisation as was done by the complainant in the case of Jacqui McCarthy v Dublin Corporation14.
7.4 The respondent states that the initiation of a claim for redress cannot be allowed to be a running claim in which new grounds of complaint are added as and when new events take place or as and when new grounds of complaint occur to a complainant.
Such an approach to a claim for redress is, the respondent says, contrary to the spirit and purpose of the time limits as expressly set out in the 1998 Act and contrary to the principle of finality in litigation. To allow a complainant to alter her case as they go along is contrary to all principles of fairness and justice and the rights of the respondent to defend themselves in relation to a complaint. The respondent submits that the Equality Officer's power to draw inferences is in relation to issues of the burden of proof and the value of evidence and not for the purpose of adding a new ground of complaint to a claim. In conclusion the respondent states that the Equality Tribunal has no jurisdiction to determine this element of the claim.
7.5 The respondent states that if the Equality Officer finds that she does have jurisdiction to make a determination in relation to the issues of victimisation it denies that the complainant was victimised as alleged or at all.
8. CONCLUSIONS OF THE EQUALITY OFFICER
8.1 This issue for decision in this claim is whether or not the complainant was discriminated against by the respondents on the grounds of gender in relation to the appointment competition for the position of Principal. The issue of victimisation must also be addressed. In making my decision in this claim I have taken into account all of the submissions (both written and oral) made to me by the parties. It is my intention to deal with the issues in this claim under the following headings:
- Appropriate Employer
- Discriminatory Treatment
- Victimisation
- Allegation of Collusion
- Other Issues
Appropriate Employer
8.2 The complainant has argued that the Board of Management of the School and the Department of Education and Science are properly named respondents in this claim. The Department of Education and Science (the second named respondent) contends that it is not an appropriate respondent in this claim and that the Board of Management of the School (the first named respondent) is in fact the complainant's employer and should, therefore, be the only named respondent in this claim. At the first hearing of this claim the first named respondent concurred with this view. Both the complainant (see paragraphs 3.10 and 3.11 above) and the second named respondent (see Section 5 above) have made their arguments in this regard. This issue of the appropriate employer has been addressed in detail by a colleague at paragraphs 8.2 to 8.9 in the case of Bleach15. In her decision she held 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". I concur with my colleague's findings and consider that it is not necessary for me to repeat the arguments as set out in that Decision. For convenience these arguments are set out in Appendix A to this Decision. Accordingly I find that the first named respondent is the complainant's employer for the purposes of this claim.
Discriminatory Treatment
8.3 The facts of this claim are that the complainant applied for the post of Principal in the respondent organisation. She was invited to attend for interview on 29th May, 2001. Following this interview she was informed that she was unsuccessful in her application. A male candidate had been selected for the position. The complainant alleged that she had been asked a discriminatory question at interview and, through her Union, she complained to the first and second named respondents. According to the second named respondent the Rules of Procedure for this competition had been breached inasmuch as the first named respondent had failed to notify the second named respondent of the names of all the candidates for interview and to have received confirmation that all of these candidates were eligible. Consequently the first named respondent decided to undertake the selection process again and the complainant was called for interview for a second time on 20th July, 2001. A female candidate (not the complainant) was selected for the position. The person who was successful in the first interview was placed last by the second interview panel. On 26th July, 2001 the complainant was informed that the post had to be re-advertised as the procedures had again been breached. Hence a third competition took place and the complainant was called for interview on 20th October, 2001. On 22nd October, 2001 she was informed that she was unsuccessful in her application. The person, successful in the first interview, was again successful in the third interview and was appointed to the position. It should be noted that three different interview panels interviewed the candidates for this position.
8.4 In its submission the first named respondent argued that the Equality Officer had no jurisdiction to deal with any matter relating to the interview of May, 2001 as no claim was brought within six months of that interview. I note that the claim referred by the complainant was received by the Equality Tribunal on 27th November, 2001 and the first interview for the position of Principal took place on 29th May, 2001. I am, therefore, satisfied that the complainant has brought her claim in relation to the first interview within the six months time limit as set by Section 77(5) of the Employment Equality Act, 1998.
8.5 At the first interview for this position the complainant alleges that she was asked a discriminatory question. According to the complainant the Chairperson of the Interview Board asked her about "her suitability to be appointed to the post of Principal in light of her gender and in terms of whether a female Principal in a Boys School would pose a problem from a role model point of view". At the second hearing of this claim Fr. Clarke, the Chairperson of the first interview board denied that he had asked a discriminatory question and stated that the complainant had twisted what he had said. Fr. Clarke stated that the question which he asked was "how would the complainant cope with being the first female Principal in the School". According to Fr. Clarke this is a small country school which always had a male as its Principal. He said that to have had a female Principal would have been a major event in a rural community. Fr. Clarke noted that this question was put to all female candidates for the position and he held that it was a valid question in the context in which it was made. Fr. Clarke confirmed that this question had been agreed by the interview board members in advance of the interviews. I note that by putting this question Fr. Clarke breached Rule 5(vii) of the Rules of Procedure which specifically states that "questions put should not give the impression that the Board has a preconceived view of the suitability of either a man or a woman for a particular post". An extract from the Rules of Procedure is set out in Appendix B. The then Education Secretary of the Dublin Diocese Fr. O'Connor also attended the second hearing of this claim and accepted that the putting of this question to the complainant was a breach. I am satisfied that this was a discriminatory question as it could only be put to female candidates for the position. The interview board should not have been concerned with the perception of a female Principal in the School. Rather the task before the interview board was to select the best candidate for the position based on objective rather than subjective factors.
8.6 In her submission and at the hearings of this claim the complainant outlined in detail the incident which occurred in the staff room on 6th June, 2001. The first named respondent did not deny that the incident occurred or indeed any of the details outlined by the complainant. I am, therefore, satisfied that on 6th June, 2001 Fr. Clarke visited the School and in the staff room he explained to 13 teachers who were present at the time, including the complainant, how the successful candidate was selected and he gave details of the selection process. Fr. Clarke indicated that the successful candidate had been his first choice for the position. He also stated that the complainant had been placed last of all candidates interviewed. This clearly misrepresented the facts. In relation to the complainant he stated "she is a good woman but a woman in the position in an all boys school would not be appropriate". This statement by Fr. Clarke is clear evidence that he did not view it appropriate to have a female as Principal of the School. Hence females who applied for this position were clearly at a disadvantage because of their gender. Having put a discriminatory question to the complainant I am satisfied that Fr. Clarke proceeded to exacerbate the stress imposed on the complainant by this question when he stated to her and her colleagues that it would not be appropriate for her to hold this position because she is female. I would also deem this to have been a serious breach of confidentiality in the process and I note that the Education Secretary of the Dublin Diocese accepted that this too was a breach.
8.7 Having found that the complainant was asked a discriminatory question the next issue to address is whether or not the complainant would have been successful in the competition but for the discriminatory question. In deciding on this issue it is necessary to examine the procedures adopted and the documentation submitted in relation to the interviews.
Procedures
8.8 There are prescribed procedures for the appointment of Principal teachers. These procedures were agreed by the Department of Education and Science, the Managerial Representatives of the Boards of Management and the INTO. Attached in Appendix B are the procedures for selection, interview and appointment of teachers as set out in the Boards of Management of National Schools - Constitution of Boards and Rules of Procedure. These Rules of Procedure applied at the time of the interviews held in this case. At Rule 3.A.(iii) the Chairperson of the Board of Management shall forward the shortlist of names of applicants to be called for interview to the Department of Education and Science and under Rule 3.A.(iv) the Department will return to the Chairperson of the Board of Management the names of all applicants who are eligible for appointment in accordance with Rule 76 of the Rules for National Schools. At the time of the first interviews Fr. Clarke was Chairperson of the Board of Management and in accordance with the Rules of Procedure (Rule 3.A.(i) at Appendix B) he acted as Chairperson of the interview board. I note that Fr. Clarke did not forward the list of candidates to be called for interview to the second named respondent. He did not retain a copy of the records of the criteria for assessment of applicants and the notes of the interviews as required by Rule 6(iii) (see Appendix B).
8.9 In relation to the second interview Fr. Hurley the then Chairperson of the Board of Management opted not to Chair the interview board. This position was assumed by Fr. Farnan, who was temporarily made the Chairperson of the Board of Management. I note that in relation to this second interview Fr. Hurley faxed the details of candidates being called for interview for the position to the second named respondent. This document is dated 16th July, 2001 and presumably it was faxed that day. However Fr. Hurley had no authority to do this as he was not the Chairperson of the Board of Management at the time and he had waived his right to be the Chairperson of the Selection Board. Rather Fr. Farnan was appointed to the position of Chairperson of the Board of Management on a temporary basis from 16th July to 23rd July, 2001 inclusive. Under the Rules (Rule 3.A.(iii) at Appendix B refers) it states that "Following the meeting of the Selection Board, the Chairperson of the Board of Management shall forward the shortlist of names of applicants to be called for interview to the Department of Education and Science". A Selection Board comprises the Chairperson of the Board of Management and at least two assessors independent of the Board of Management. Therefore it should have been Fr. Farnan, as a member of the Selection Board and Chairperson of the Board of Management who should have forwarded the shortlist of names of applicants to be called for interview to the Department of Education and Science for an eligibility check. I note that Fr. Farnan retained the criteria for assessment of applicants and the interview notes and these were supplied to me. At the second hearing of this claim the second named respondent stated that it had not confirmed the eligibility of the candidates for interview to the first named respondent in advance of the interviews hence it held that the Rules of Procedure had been breached and consequently a third interview had to be held.
8.10 I note that Fr. Downes was asked to act as Chairperson of the third interview board and he was temporarily made Chairperson of the Board of Management (from 19th October to 21st October, 2001 inclusive) to enable him to undertake this task. From records supplied to me Fr. Hurley as Chairperson of the Board of Management forwarded the list of names to the Department of Education and Science for an eligibility check. This was done in September, 2001 long before the Selection Board for the interviews was appointed. Again if we follow Rule 3.A.(iii) this task should have been undertaken following the meeting of the Selection Board at which the criteria for the assessment of the applications was established and a decision taken as to which applicants to call for interview. As Fr. Downes was to act as Chairperson of the interview board he had to be temporarily appointed Chairperson of the Board of Management and in this role he should have forwarded the candidate details to the Department of Education and Science for an eligibility check. This did not happen, hence the procedures in the third interview process were also breached. Fr. Downes did not retain the criteria for assessment of applicants and the interview notes for the third interview but one of the interview board members did have his notes and these were made available to me. Failure by the Chairpersons of the first and third interview boards to retain criteria for assessment of applicants and notes of interviews was a breach of Rule 6(iii) of the Rules of Procedure (see Appendix B).
8.11 It is clear from the above that in all three interviews the rules were breached. At the second hearing of this claim the second named respondent stated that if the rules were breached it could not appoint the person being recommended for appointment to the position until the selection process had been carried out without any breaches of the rules. In relation to the first interview there was a clear breach of the rules as Fr. Clarke, the then Chairperson of the Board of Management and Chairperson of the interview board, did not forward candidate names to the second named respondent for an eligibility check. In relation to the second set of interviews the second named respondent, on receipt of the names of candidates from Fr. Hurley, would not have known that Fr. Hurley was not the Chairperson of the Management Board at the time or that he was not going to be Chairperson of the interview board. This would have come to the attention of the second named respondent when it received two requests for the ratification of the person successful in the second interview, one from Fr. Clarke dated 21st July, 2001 who was no longer Chairperson of the Board of Management and one from Fr. Farnan dated 20th July, 2001. Given the rules it is clear that the person requesting the second named respondent to undertake eligibility checks is also the person who would ask the second named respondent to ratify the appointment of the successful candidate at interview. At the second hearing of this claim the second named respondent indicated that the reason the procedures were breached for the second interviews was because it had not notified the first named respondent of the eligibility of candidates in advance of the interviews. The reason this had not happened was because the person in the second named respondent organisation who checked eligibility was on annual leave at the time and the evidence supported this. I note that the request was made by fax and it clearly indicated when the interviews were scheduled. In these circumstances I find it surprising that the check was not done by someone else in the absence of the person who normally performed the task.
8.12 In relation to the third interview Fr. Hurley as Chairperson of the Board of Management forwarded the list of candidate names to the second named respondent for eligibility checks in September, 2001. Fr. Hurley expressed his wish not to be the Chairperson of the interview board and consequently Fr. Downes was made temporary Chairperson of the Board of Management from 19th October to 21st October, 2001 inclusive to enable him to act as Chairperson of the interview board. In accordance with the rules Fr. Downes should have forwarded the list of candidate names to the second named respondent for eligibility checks. Again the second named respondent would not have known that Fr. Hurley was not acting as Chairperson of the interview board. However following the interviews the second named respondent received correspondence which stated that Fr. Downes had been the Chairperson of the interview board. It would then have known that the rules had again been breached and it should not have ratified the appointment of the successful candidate.
8.13 The second named respondent wrote to the first named respondent on foot of the breach of procedures in relation to the first interviews and clearly stated that "the appointment could not be sanctioned until the Department is satisfied that the appointment procedures have not been breached". It is very clear from the correspondence that the first named respondent was very concerned at the fact that the successful candidate at the first interview was not selected as the successful candidate at the second interview and the possibility of a legal challenge. There was no formal documentation from the second named respondent that the procedures had been breached in relation to the second interviews. However at the second hearing of this claim the person, in charge of the area in the second named respondent organisation at the time, indicated that he had a vague recollection of a telephone call between himself and the Education Secretary of the Dublin Diocese in which he informed the Education Secretary that the procedures had been breached and that the interview process would have to be undertaken again. Despite it being a vague recollection, he states that he has a clear recollection that he made the telephone call to the Education Secretary of the Dublin Diocese. I note that the fact that the procedures were breached or that the Education Secretary was informed by phone was not documented on the appropriate files in the respondent organisation. Furthermore one has to question why the second named respondent contacted the Education Secretary of the Dublin Diocese about the breach of procedures rather than the Chairperson of the Board of Management of the School. The lack of evidence in relation to the alleged breach of procedures at the second interview is very unsatisfactory.
8.14 At the second hearing of this claim the Education Secretary of the Dublin Diocese stated that the persons appointed as Chairpersons of the second and third interview boards (i.e. Fr. Farnan and Fr. Downes) were told by him that the complainant had made a complaint of alleged discrimination following the first interview for the Principal position. Fr. Farnan confirmed to me that he did know of the complaint by the complainant and that the name of the successful candidate at the first interview was common knowledge as it was in the public domain. I note that the complainant has contended that she was at a distinct disadvantage because the interview board members were aware that she had complained and I am satisfied that this was the case.
Documentation
8.15 The outcome of each of the interviews was as follows:
| Placing | 1st Interview May, 2001 | 2nd Interview July, 2001 | 3rd Interview October, 2001 |
|---|---|---|---|
| 1 | Male | Female (2nd in May) | Male (1st in May & 4th in July) |
| 2 | Female | Complainant | Female (2nd in May and 1st in July) |
| 3 | Male | Male | Male |
| 4 | Complainant | Male (1st in May) | Complainant |
| 5 | Male | Male | |
| 6 | Male |
At the first hearing of this claim the respondent stated that the application and CVs for the candidates for each of the three interviews were not available. It was unclear whether they had been returned to candidates or lost. There were no criteria for assessment of candidates or interview notes for the first interview. The first named respondent stated that they had been lost. The criteria for assessment and interview notes were made available for the second interviews. One of the interviewers in the third interviews had retained his notes of the interview. These notes, submitted to me, included the criteria for assessment, the questions put to candidates and the marks awarded to candidates under each of the criteria and comments on each candidate. In the second interview and for the details of interview received for the third interview it is difficult to comment on the marks awarded as I have been unable to compare the complainant's CV with that of the other candidates. However it is worth noting that in the third interviews the total marks which could be awarded to any candidate was 65 and of those almost one third were discretionary relating to overall impressions. It is not acceptable that such a high mark is given to discretionary criteria and this would leave the first named respondent exposed to the charge of possible discrimination.
8.16 In terms of the placing of candidates at each of the three interviews I note that at the first interview, prior to any allegations of discrimination being made, the complainant was place fourth out of five candidates for the position. I further note that another female candidate was placed second. According to Fr. Clarke, who chaired the first interview, the question which was put to the complainant, and which I am satisfied was discriminatory, was also put to the other female candidate. Hence the complainant while treated less favourably than the successful male candidate was treated the same as the other female candidate and this other female candidate was placed higher than the complainant in the order of merit. It is noteworthy that this female was placed first at the second interview and second at the third interview and in both instances at a higher ranking to the complainant. On this basis I find that, despite the lack of transparency in the procedures in this case, the complainant would not have got the position of Principal but for the discrimination. Had a female not been placed higher than the complainant in the various interviews my finding in this regard would have been different as there was a discriminatory question asked at interview, a total lack of transparency, a breach of confidentiality in the process and numerous breaches of the Rules of Procedure.
8.17 I note that the complainant has argued that she was indirectly discriminated against in relation to her non-appointment to the Principal position. In this regard she has stated that there is a general trend in appointing male teachers to the post of Principal and from this it must be concluded that the failure to appoint her to the post of Principal amounted to discrimination on the grounds of gender. She further stated that the failure to appoint her is indicative of the discriminatory and prejudicial attitude on the part of the respondents which is also reflected in the pattern of appointments to the position of Principal teachers and is consistent with traditional perceptions that male teachers are more suitable for appointment as Principal Teachers of Primary Schools. The complainant submitted statistics to support this contention (see paragraph 3.9 above). I note that the Labour Court in the case of South Eastern Health Board v Brigid Burke16 held that "statistical anomalies ... may constitute evidence of apparent sex discrimination unless justified by objective factors unrelated to any discrimination based on sex". This case can be distinguished inasmuch as a female was placed higher than the complainant in all three interviews. Hence another female was deemed to be more suitable than the complainant for the post of Principal on three occasions.
Victimisation
8.18 At the first hearing of this claim I noted that the complainant or the Union, on her behalf, had not referred a claim of victimisation in this case. I indicated to the parties that I had reason to believe (from the complainant's submission) that there may be a claim of victimisation and I afforded both parties an opportunity to make submissions on the issue of victimisation. The complainant was asked to make her submission first and this was copied to the respondents for a response. These submissions have been summarised in Sections 6 and 7 above. I note that the first named respondent has argued that I am not entitled to investigate the issue of victimisation at this stage and that it is outside the strict time limits imposed by Section 77(5) of the Employment Equality Act, 1998. I disagree with the first named respondent in this regard and note that the complainant in her submission, received on 8th May, 2002 referred to an incident of victimisation which occurred on 15th February, 2002. While the complainant did not use the word victimisation in describing the incident it is clear that she is alleging victimisation and her reference to it is within the six months of the date of occurrence. I adopted this approach in my decision in the case of Amrabure v IBM International Holdings BV17 in which I noted that the complainant had not referred a claim of victimisation but that I considered that it was appropriate for me to investigate the claim of victimisation having regard to the High Court ruling in the case of Long v The Labour Court18.
8.19 According to the complainant every year she prepares the musical arrangements and choirs for the Confirmation and Communion ceremonies in the school. Prior to 2002 the complainant states that she was always, without exception, publicly acknowledged during the course of these ceremonies. However at the Confirmation ceremony on 15th February, 2002 the complainant alleges that she was the only one of four teachers who was not named and thanked for her contribution to the ceremony. The complainant was extremely upset by the exclusion of her name which was noted by colleagues, pupils, parents and the community in general. She alleges that her distress was compounded by the fact that several people approached her to know why she had not been thanked. At a celebratory meal after the event the complainant's name was again omitted from the after dinner speeches. The complainant states that this was embarrassing and professionally damaging as management and staff from the Girls National School, with whom she liaises throughout the year, attended this function. Following representations by colleagues and members of the Parish a tribute was paid to the complainant in the school newsletter. However this happened again in May, 2002 at the Communion ceremony when the complainant was not thanked by Fr. Clarke, who had acted as Chairperson of the first interview board and was Chaplain to the School. Again she received a note of thanks by way of the Parish newsletter. The complainant further alleges that her name was omitted from mention of thanks by Fr. Clarke in December, 2002 although she had trained the boys choir for the carol service. These allegations of victimisation have not been denied by the first named respondent. I consider them to be serious incidents of victimisation in this claim and clearly occurred because the complainant had made a complaint of alleged discrimination in relation to the first interview for the position of Principal.
8.20 On the day before the first hearing of this claim the second named respondent submitted a response it had received from Fr. Clarke when it wrote to the first named respondent on foot of the Union's complaint about the discriminatory question at interview. In his letter Fr. Clarke indicated that the position would be re-advertised.
He further stated as follows:
"Regarding the spiteful and in many ways inaccurate complaints of the unsuccessful applicant, may I make just two points. Firstly the two independent Assessors who assisted with the appointment are among the most experienced and competent in the Diocese. Secondly, the fact that they judged [the complainant] fifth of the five people interviewed, may have coloured her perception of events. Finally, the Legal Department of the Department of Education advise me that I have not breached any regulations and should I wish that I consult a Solicitor! I really do not wish to go down that road and trust that the re-advertisement of the post will meet with overall approval. However, [the successful candidate's] understandable disappointment is something I deeply regret".
At the second hearing of this claim Fr. Clarke stated that he suffered from depression and that the complainant was spiteful in making a complaint as he presumed that she knew about his condition. The complainant denied any knowledge of his condition. In relation to the inaccurate complaints by the complainant Fr. Clarke stated that it was the complainant's perception that the question was bias and this was misplaced as he had acted honourably. I have found that the question put to the complainant at her first interview was discriminatory and I do not accept that her perception of the question was misplaced. This letter was written by Fr. Clarke after the complainant had made her complaint. She cannot be precluded from including this as victimisation just because she was not aware of its existence until the day before the first hearing in this claim on 18th June, 2003.
8.21 At the second hearing of this claim Fr. Hurley, Chairperson of the Board of Management of the first named respondent had to be excused early. As a result I afforded the parties the opportunity to raise any issues specific with Fr. Hurley before he had to leave. A number of issues were raised and dealt with by him. However I note that after he left the complainant stated that Fr. Hurley, as Chairperson of the Board of Management, had asked her in January, 2002 to step down from the Board of Management as her presence on the Board of Management was awkward given the complaint that she had made. The complainant had been elected as the teacher representative on the Board of Management. The first named respondent undertook to put this allegation to Fr. Hurley following the hearing and to respond thereafter. In its response the first named respondent stated that Fr. Hurley denied the allegation. He indicated that he had asked the complainant to meet him at his house on 10th January, 2002 as he felt that his house was a more appropriate meeting place in the circumstances than the School. According to the first named respondent Fr. Hurley states that the first meeting of the newly elected Board of Management scheduled for 15th January, 2002 was due to discuss the claim made by the complainant and he wished to notify the complainant in advance of this fact and request her to absent herself from that part of the meeting. The first named respondent states that Fr. Hurley is clear that there was absolutely no question of the complainant being asked to resign her position on the Board of Management.
8.22 In response to this the Union, on behalf of the complainant, does not accept the version of events as outlined by the first named respondent. According to the Union the complainant received a telephone call in early January, 2002 from Fr. Hurley requesting her to meet with him and at his request she called to his house on 10th January, 2002. It is the Union's contention that Fr. Hurley stated, that as her claim was proceeding it would not be possible for her to remain on the Board of Management. The complainant informed Fr. Hurley that she was the democratically elected teachers' representative and, therefore, it would not be appropriate for her to step down. According to the Union the complainant told Fr. Hurley that where a matter was being discussed by the Board of Management which affected a member of the Board then it was procedure for that person to absent him/herself from the meeting for the duration of such discussion. The Union says that Fr. Hurley accepted this approach. On a point of clarification the Union states that the meeting of the Board of Management on 15th January, 2002 was not the first meeting of this particular Board of Management as it had sat from November, 2000 to November, 2003 where, at that time, the term of a Board of Management was three years.
8.23 It is regrettable that the complainant did not raise this issue with Fr. Hurley before he had to leave the second hearing of this claim. Having said that there is a clear conflict between the Union and the first named respondent on this issue. In circumstances such as this it is for me to decide, on the balance of probabilities, which version of events is more credible. In deciding on the balance of probabilities I have had regard to Fr. Hurley's involvement in this claim as set out below:
- his indication that he did not want to act as Chairperson of the Interview Boards yet he undertook to forward candidate names to the second named respondent for eligibility checks in respect of the second and third interviews.
- Fr. Hurley was Chairperson of the Board of Management when the successful candidate at the first interview was in attendance at a retirement function for the outgoing Principal in September, 2001. This function was with parents and teachers and the successful candidate at the first interview was neither a parent or a teacher in the respondent school.
- After the third interviews the meeting of the Board of Management was held in Fr. Hurley's house.
- Fr. Hurley signed the Notification of Permanent Appointment form declaring to the second named respondent that the procedures in relation to the third interview had been complied with even though Fr. Hurley had no involvement with the actual interviews.
Given the above I find that the complainant's version of events in this regard are more credible.
Allegation of Collusion
8.24 During the second hearing of this claim the Union alleged that there had been collusion between the Education Secretary of the Dublin Diocese, Fr. Clarke and Fr. Hurley in this case. The first named respondent rejected this and the Education Secretary of the Dublin Diocese took grave exception to such an allegation being made. Lets look at the facts. The Education Secretary of the Dublin Diocese said, at the second hearing in this claim, that Fr. Clarke's last act as Chairperson of the Board of Management of the respondent school was to impart details about the first interview to the complainant and her colleagues in the school staff room on 6th June, 2001. He said that after that Fr. Hurley became Chairperson of the Board of Management. There is no written notification appointing Fr. Hurley. However the Education Secretary of the Dublin Diocese pointed to the memorandum from Monsignor O'Shea dated 2nd July, 2001 stating that "a new Chairperson is being appointed" and the "present Chairman will not again be burdened with these types of responsibility" as clear evidence of this fact. One has then to question why the Board of Management of the first named respondent met in Fr. Clarke's house to discuss the outcome of the second interviews and why Fr. Clarke took it upon himself to notify both the Education Secretary of the Dublin Diocese and the second named respondent of the outcome of the second interviews on 21st July, 2001 when he was no longer Chairperson of the Board of Management. Furthermore it is only in this letter of 21st July, 2001 to the Education Secretary of the Dublin Diocese that Fr. Clarke requests to be relieved of his duties. While the Education Secretary of the Dublin Diocese had stated that Fr. Clarke was no longer Chairperson of the Board of Management of the respondent school since 6th June, 2001 it is clear that Fr. Clarke was not notified of this fact and he clearly acted as Chairperson of the Board of Management up until 21st July, 2001 when he stated "... I cannot but conclude that my position on the Board, as indeed any future involvement with the school, is untenable. Accordingly, I request that I be relieved of these duties forthwith".
8.25 The Union states that the successful candidate at the first interview was brought to the school in June, 2001 and presented to parents as the incoming Principal. Later that month he was invited to the Graduation Mass. Then on 14th September, 2001 the successful candidate at the first interview attended the retirement function for the outgoing Principal which took the form of a Church celebration and a function with parents and teachers. The Union contends that this was not appropriate as the successful candidate was neither a teacher or a parent in the respondent school. One has to wonder why, in the interests of fairness, the successful candidate at the second interview was not also at this function. At this time Fr. Hurley was Chairperson of the Board of Management and there is evidence that he, in his capacity as Parish Priest, nominated a new Chairperson to conduct the second interviews. It could fairly be assumed that Fr. Hurley was also involved in the nomination of a Chairperson for the third interview. After the third interviews the meeting of the Board of Management was held in Fr. Hurley's house rather than at an independent venue. Fr. Hurley, despite not being involved in the October, 2001 interviews, signed the Notification of Permanent Appointment form on 18th December, 2001 declaring that the procedures laid down in the Rules of Procedure had been complied with in respect of the appointment of the successful candidate following those interviews. I note that there was great haste in notifying the successful candidate at the first and third interviews, which was again contrary to the Rules of Procedure (Rule 6(i) applies) but this same speed did not happen after the second interview.
8.26 The allegation of collusion was made by the Union and rejected by the first named respondent and the Education Secretary of the Dublin Diocese. I have set out the facts in relation to this allegation given that it was raised before me. As an Equality Officer investigating allegations of discrimination and victimisation it is not for me to make a finding in relation to allegations of collusion.
Other issues
8.27 At the end of the second interview for the position of Principal the complainant was asked if she felt that the interview had been fair. I understand why the complainant was asked this question given that the interview board members were aware that she had made a complaint about the first interview. However I concur with my colleague in the Bleach19 case when she found that this type of question was unacceptable and inappropriate and had more significance for the complainant given that she had complained about the fairness of a question put to her at the first interview.
8.28 It is necessary for me to refer to the undue delays in completing the investigation in this claim. The claim was referred in November, 2001 and it is now mid 2004 before a decision has issued. A log of how this claim proceeded from its receipt in the Equality Tribunal to the issue of this Decision is set out in Appendix C. It is notable that it took 7 months for the first named respondent to make its submission on the allegation of discriminatory treatment. The second named respondent, while invited to make a submission, did not make one but submitted a letter stating that it was not a proper respondent in this claim and this letter was received some 8½ months after the request was made.
8.29 It is also necessary for me to refer to the fact that the first named respondent's legal representatives attended the first hearing in this claim unaccompanied by any member of the respondent organisation. In attendance at that hearing were the two independent assessors on the third interview board. The first named respondent's legal representatives were unprepared for the hearing and were unable to answer many of the questions put to them by me in the course of my investigation. As a result I had to invoke the provisions of Section 95 of the Employment Equality Act, 1998 to request the attendance of certain people from the first and second named respondent organisations to attend the second hearing of this claim to enable me to fully investigate this claim.
8.30 I have investigated many cases of alleged discrimination and victimisation under Equality Legislation since 1995. In this case I consider it is warranted to state that this has been the worst claim of victimisation I have ever encountered. There was a blatant disregard for the complainant and a disrespect for the investigative process of the Equality Tribunal based on the delays caused by the first named respondent, the failure by the first named respondent to attend the first hearing of this claim and the lack of preparation of the first named respondent's legal team at that hearing.
9. DECISION
9.1 Based on the foregoing I find that the Board of Management of St. Anthony's Boys National School, Kilcoole is the proper employer in this claim and not the Department of Education and Science.
9.2 I find that Ms. McGinn was discriminated against at the first interview for the position of Principal of the respondent school when she was asked a discriminatory question at interview. I further find that the level of stress experienced by Ms. McGinn as a result of this discriminatory question was exacerbated by the comments of the first named respondent at a staff meeting following the interview. I find that this was also a serious breach of confidentiality.
9.3 I do not find that Ms. McGinn would have been appointed to the position of Principal but for the discriminatory question as another female was placed higher than her in each of the three interviews that candidates undertook for the position.
9.4 I find that the Board of Management of St. Anthony's Boys National School, Kilcoole and the Department of Education and Science both breached the Rules of Procedure for Boards of Management of National Schools. These Rules of Procedure were drawn up by the Department of Education and Science, Managerial Representatives of the Boards of Management and the INTO.
9.5 In accordance with Section 82 of the Employment Equality Act, 1998 I hereby order the Board of Management of St. Anthony's Boys National School, Kilcoole -
(a) to pay the complainant the sum of €10,000 by way of compensation for the breach of her right to equal treatment under the Employment Equality Act, 1998 and the serious stress and distress suffered as a result of the discriminatory question and the subsequent reference to the inappropriateness of appointing her to the post of Principal which was made to her and her colleagues.
(b) to pay the complainant the maximum award equivalent to two years salary by way of compensation for the victimisation she experienced as a result of referring a claim of discriminatory treatment to the Equality Tribunal. Based on figures supplied by the Union this amounts to €117,362. However the amount paid to the complainant is to reflect her actual salary at the time payment of this award is made.
(c) to pay the complainant interest on the full amount of the award at (a) above at the rate which is applicable under Section 22(1) of the Courts Act, 1981 and in respect of the period beginning 29th May, 2001 and ending on the date of payment.
(d) to pay the complainant interest on the full amount of the award at (b) above at the rate which is applicable under Section 22(1) of the Courts Act, 1981 and in respect of the period beginning 26th June, 2001 and ending on the date of payment.
The reason for the large awards in this claim is to reflect the seriousness with which I view the victimisation, the repeated breaches of procedures by the respondents, the repeated destruction of relevant interview notes and the fact that damaging untruths were told about the complainant to her colleagues and to the second named respondent. Furthermore there is a need for the award to have a deterrent effect under the EU law.
I further order
(e) both the Education Secretary of the Dublin Diocese and the Board of Management of St. Anthony's Boys National School to acknowledge in writing to the complainant that she was unlawfully discriminated against by the first named respondent and to extend to her a full apology in writing for all the hurt (in terms both of the interview and the subsequent victimisation) she experienced as a result of applying for this promotion competition and to give a commitment that she will not be victimised in future.
(f) the Board of Management of St. Anthony's Boys National School to write to the relevant staff of the respondent school and explain that the complainant had been a worthy candidate but had not received a fair interview due to gender discrimination under the provisions of the Employment Equality Act, 1998. In this letter to acknowledge that the statement by Fr. Clarke that the complainant was ranked last in the interview on 29th May, 2001 was inaccurate. (The complainant is to notify the Board of Management in writing of the names of the staff members who were present in the staff room on 6th June, 2001).
(g) the Board of Management of St. Anthony's Boys National School to write to the Department of Education and Science requesting that the letter dated 26th June, 2001 signed by Fr. Clarke be removed from the Department's file. A copy of the letter of request along with a copy of the response from the Department of Education and Science is to be given to the complainant.
(h) that all persons who act, or may act in the future, as interviewers on interview boards for positions in National Schools should receive comprehensive training before so doing. This training should be set out in modules to include the Rules of Procedure and the implications of Employment legislation. As part of this training a legal professional with a working knowledge of the Employment Equality legislation should attend the course to explain the provisions of the legislation and its implications.
I recommend that
(i) the Department of Education and Science, the Managerial Representatives of the Boards of Management and the INTO to agree on a body to enforce the Rules of Procedures for Boards of Management. Ideally this should be the function of the Department of Education and Science or an independent professional body.
(j) the Department of Education and Science, the Managerial Representatives of the Boards of Management and the INTO review the manner in which Selection Boards are appointed with a view to achieving greater independence and the possibility of appointing outside professional independent Chairpersons.
____________________
Gerardine Coyle
Equality Officer
10th June, 2004
APPENDIX A
Extract from the Bleach Decision
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 Education 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, I consider 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.
APPENDIX B
Extract from the Rules of Procedure of the Boards of Management of National Schools
3. Selection Board
A. Principal Teachers
(i) A Selection Board shall be constituted and shall comprise the Chairperson of the Board of Management and at least two assessors independent of the Board of Management, to be appointed by the Patron after consultation with the Chairperson. At least one of the members shall be a woman and at least one a man.
(ii) The Selection Board shall meet within a reasonable period after the closing date for the receipt of applications. It shall establish criteria for the assessment of the applications, having regard to the Rules for National Schools and the requirements of the particular post, and shall decide upon the applicants to be called for interview. Records of the criteria for assessment of applications and of the interviews shall be kept by the Chairperson of the Selection Board.
(iii) Following the meeting of the Selection Board, the Chairperson of the Board of Management shall forward the shortlist of names of applicants to be called for interview to the Department of Education and Science.
(iv) The Department will return to the Chairperson of the Board of Management the names of all applicants who are eligible for appointment in accordance with Rule 76 of the Rules for National Schools.
(v) The advice of the Department in regard to the professional competence of the eligible applicants will be available to the Selection Board on request.
(vi) The terms of Section 15(b) shall apply to all members of the Selection Board.
(vii) If the Chairperson of other member of the Selection Board stands in a relationship to a person who is a candidate for employment in the school, s/he shall withdraw from the Selection Board and the Patron shall nominate another Chairperson or member in his/her place.
(viii) Failure to disclose any relationship material to the selection may invalidate the process.
5. Interviews
(i) If there are three eligible applicants or fewer all eligible applicants shall be called for interview by the Selection Board. Otherwise, at least three eligible applicants shall be called for interview.
(ii) Each applicant called for interview shall be given at least seven days' notice and a specific interview time outside school hours.
(iii) Calls to interview should normally be issued within three weeks of the latest date for receipt of applications.
(iv) The venue for the interviews should be comfortable and appropriately furnished for a meeting between a group of adults, and should include a comfortable waiting area.
(v) All questions at interviews shall relate to the requirements of the particular post and of the Rules for National Schools.
(vi) No question shall be asked nor information sought in any form from a candidate which might be construed as being discriminatory on grounds of sex or marital status, e.g. questions in regard to sporting interests and skills which would favour men rather than women applicants or vice versa.
(vii) In the selection of staff for boys only and girls only schools special care should be taken to ensure that both male and female applicants are given equal opportunity to present themselves as suitable and that questions put should not give the impression that the Board has a preconceived view of the suitability of either a man or a woman for a particular post.
(viii) Having interviewed such applicants as present themselves, the Selection Board shall submit a written report to the Board of Management, nominating the applicant whom it considers most suitable for appointment.
(ix) A list in order of merit of other candidates who are also deemed suitable shall be retained by the Selection Board for use in the event of the post not being filled by that nominee.
(x) The Board of Management shall appoint the teacher so nominated unless it has good and sufficient reason not to do so, in which instance the matter shall be referred to the Patron, whose decision in this matter shall be accepted by the Board.
(xi) The Chairperson shall seek the approval of the Patron and the sanction of the Minister for Education and Science for the appointment.
6. Notification of applicants
(i) Having received approval and sanction in accordance with 5(xi), the Board shall notify the teacher of his/her appointment and enter into the appropriate agreement with the teacher on the agreement form to be provided by the Department of Education and Science.
(ii) As soon as the Board of Management has received notification of the teacher's acceptance of the post, all unsuccessful candidates shall be notified.
(iii) Records of the criteria for assessment of applicants and of the interviews shall be kept by the Chairperson of the Selection Board.
APPENDIX C
Log of the Investigation of this Claim
| 27th November, 2001 | Claim referred to the Equality Tribunal |
|---|---|
| Equality Tribunal corresponded with parties re: Mediation | |
| 12th February, 2002 | Claim assigned to Equality Officer for investigation and Decision |
| 13th February, 2002 | Submission sought from complainant's representative |
| 8th May, 2002 | Submission received from complainant's representative |
| 10th May, 2002 | Submission passed to respondants for a response |
| 4th December, 2002 | Submission received from first named respondent. Equality Officer notified parties of a date for hearing (8th April, 2003) |
| 21st January, 2002 | Response from the second named respondent |
| 25th March, 2003 | Request from first named respondent to defer hearing. A new hearing date of 18th June, 2003 agreed |
| 18th June, 2003 | First hearing took place |
| 19th June, 2003 | Equality Officer issued request for further information from the parties and for a submission on victimisation from the complainant's representative. |
| 18th July, 2003 | Additional information receiver from the complainant's representative |
| 10th September, 2003 | Additional information received from the second named respondent's representative |
| 19th September, 2003 | Victimisation submission received from complainant's representative |
| 22nd Septembet, 2003 | Victimisation submission copied to the respondent's representative for a response |
| 20th November, 2003 | Additional information received from the first named respondent |
| 21st November, 2003 | Equality Officerset second hearing of this claim for 8th April, 2004 |
| 15th December, 2003 | Request from complainant's representative for the hearing to be deferred |
| 6th January, 2004 | New hearing date of 5th May, 2004 notified to parties |
| 12th January, 2004 | Victimisation submission received from the first named respondent's representative |
| 24th February, 2004 | Equality Officer requested attendance of certain people in accordance with her powers to do so under Section 95 of the 1998 Act. |
| 5th May, 2004 | Second hearing in this claim |
| 6th May, 2004 | Requested additional information from parties |
| 11th May, 2004 | Received response from the second named respondent |
| 21st May, 2004 | Received response from the first named respondant |
| Received response from the complainant's representative |
1Employment Appeals Tribunal - UD554/1989
2Labour Court Determination - Clery's and Company (1941) Ltd v ITGWU - DEP 3/1984
3Equality Officer Recommendation - The Department of Education v The Employment Equality Agency - EP19/1984
4Labour Court Determination - DEE986
5Equality Officer Recommendation - EE4/96
6High Court [1981] IR 181
7High Court [1995] ILRM 438
8High Court - 21st March, 2000
9Supreme Court [1980] IR 102
10Equality Officer Recommendation - Our Lady's Hospital for Sick Children, Crumlin v A Worker - EE18/1995 Labour Court Determination - University College Dublin v Six Female Workers - EEO 5/1983
11Equality Officer Decision - DEC-E2001/015
12Labour Court Determination - Dublin City Council v Jacqui McCarthy - EDA022
13Equality Officer Decision - DEC-E2003/028
14Equality Officer Decision - DEC-E2001/015 [2001] ELR 255
15Equality Officer Decision - Bleach v Our Lady Immaculate Senior School & The Department of Education and Science - DEC-E2003/028
16Labour Court - Determination EDA041 dated 12th January, 2004
17Equality Officer Decision - DEC-E2003-033 dated 28th August, 2003
18High Court May, 1990
19Equality Officer Decision - Bleach v Our Lady Immaculate Senior School and Department of Education and Science - DEC-E2003/028 of 30th June, 2003