DEC-E2004-067 Full Case Report

Ms. Monica Delaney(Represented by the INTO) vs Board of Management, Drumshanbo Central National School(Represented by Mr. White, B.L. instructed by Arthur O'Hagan Solicitors) and Department of Education and Science

1. DISPUTE

1.1 The dispute concerns a claim by the INTO, on behalf of Ms. Delaney, that she was subjected to discriminatory treatment on the grounds of marital status and age in terms of Sections 6(1), 6(2)(b), 6(2)(f) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act when she was not appointed to the position of permanent class teacher in the respondent school.

2. BACKGROUND

2.1 The complainant is employed as a Resource/Learning Teacher based in Kilnagross National School and serving the Drumshanbo Central National School, among others. A permanent teaching position of a Junior Infants class became vacant in Drumshanbo Central National School. The position was advertised in August, 2002 and the complainant applied and was called for interview. While three candidates were called for interview the complainant was the only candidate to attend. She was subsequently told that she was unsuccessful in her interview. The complainant later learned that she was deemed unsuitable for the position. The position was subsequently filled on a temporary basis by a person who held an M.A. but was not a qualified national school teacher. It is the complainant's contention that she was discriminated against on the grounds of her marital status and age. The first named respondent denies these allegations and the second named respondent contends that it is not the complainant's employer for the purposes of this claim and, therefore, is not a properly named party to these proceedings.

2.2 Consequently the complainant referred a complaint to the Director of Equality Investigations on 14th February, 2003 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 16th September, 2003 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Following receipt of submissions from both parties a joint hearing of this claim took place on 1st October, 2004. Further additional information in this claim was received on 22nd October, 2004.

3. SUMMARY OF THE CLAIMANT'S SUBMISSION

3.1 The complainant alleges that she has been discriminated against on the grounds of her marital status and her age arising from the manner in which she was treated by the respondent in relation to the failure to appoint her to a teaching position in the respondent organisation. It is her contention that she was a suitable and qualified candidate for the position whereas the person appointed to the position was not a fully qualified primary teacher.

3.2 The complainant qualified with a Batchelor of Education in 1979 and from 1979 to 2000 she taught in a number of primary schools in Counties Kildare and Laois. In October, 2000 she accepted a teaching position in Kilnagross National School in Co. Leitrim and from December, 2001 she worked as a Resource/Learning Teacher based at Kilnagross National School but also serving three other National Schools including Drumshanbo Central National School. At the time of her application for a permanent position in Drumshanbo Central National School she had 23 years teaching experience as a primary teacher.

3.3 The position of permanent teacher in Drumshanbo Central National School was advertised in the press in August, 2002 and it was mentioned to the complainant by the Principal of the School. At the time the complainant was teaching 2 days per week in the respondent school as a shared teacher. She was in a permanent position with her base school being Kilnagross National School. The complainant was interviewed for the vacant position on 19th August, 2002 and the interview board comprised the Chairperson of the Board of Management, the Principal of the School and a female interviewer. It is the complainant's submission that the interview was carried out on a rather informal basis with no area being designated as a waiting area prior to interview. The complainant says that during the course of the interview she was questioned by the Chairperson of the Board of Management on the area of teaching religion, an area in which she has substantial experience. One of the questions put by the Principal Teacher was whether she found it a problem or difficult to remain motivated as she had been teaching for so long. The complainant says that she found this a strange question in light of her enthusiasm for her job and the advantage of her experience as a teacher. According to the complainant she does not recall any notes being taken by the interview board members. Some days after the interview the complainant was informed that she had been unsuccessful in her application. Then on returning to work in September, 2002 she realised that the appointee was not a qualified primary teacher. The complainant says that she asked the Principal Teacher why she had not been appointed and he suggested that she speak to the Chairperson of the Board of Management which she did not do at the time but she subsequently became aware that she was not regarded as "suitable" for appointment.

3.4 The complainant is divorced and was aged 50 at the time of interview. In the light of her teaching experience and qualifications, the conduct of the interview (including the view that she was not "suitable") it is the complainant's belief that the failure to appoint her to the position amounted to unlawful discrimination against her on the grounds of marital status and age. It is the complainant's belief that the view that she was not "suitable" for appointment could not have been formed on the basis of the interview. The complainant is of the opinion that the question put to her about her motivation clearly indicated that her age may have been a factor in the appointment process. According to the complainant she was given no explanation for having been deemed not "suitable" for the position and she can only conclude that it related to her marital status. Given that the complainant lives in a local area she says that her domestic arrangements and marital status would have been known to the interview board members. It is the complainant's submission that there had never been any criticism of her work while she had worked at the respondent school and she had been asked by the Principal to write the report on resource teaching provision for the School's General Inspection that year.

3.5 The complainant notes that the school is under Roman Catholic patronage and management. She herself is a divorced person. However notwithstanding that fact she has always upheld the school's ethos and characteristic spirit in her work. The complainant expresses the concern that the Church's view relating to divorce and marital status may have influenced the finding that she was not suitable. This perception, she says, is reinforced by

• her experience at interview where no thorough exploration of hercareer or her CV took place;
• the failure to explain the finding regarding suitability;
• the appointment of a person not qualified as a primary teacher to the position.

The effect of what the complainant believes to be discriminatory treatment was to erode her confidence as a teacher and to raise unjustified doubt about her suitability for the job, despite her successful career, excellent record and strong references.

3.6 The complainant contacted her Union some weeks after the interview and on foot of this communication the Union wrote to the Chairperson of the Board of Management seeking the reasons for the failure to appoint the complainant to the vacant position. In his response the Chairperson of the Board of Management recorded the "unanimous decision of the Selection Board that no suitable candidate had presented for the position". In his letter the Chairperson referred to an assurance he had received from the Department of Education and Science that in the event of the Selection Board not finding a candidate considered suitable, the Board could appoint a person "not fully qualified" with the position to be re-advertised within a reasonable time. The Union then contacted the Department of Education and Science and spoke with a number of officials in that Department without receiving a clear or satisfactory response. The Union then wrote to the Principal Officer in the Primary Payments Section in January, 2003 asking

• whether a school was justified in failing to fill a permanentposition with a qualified applicant,
• whether it approved of the Board of Management's action in thematter as had been implied in the Chairperson's letter and
• whether the Board was required to explain to it why a personwho was not recognised as a teacher was appointed when arecognised, experienced teacher had applied and was available.

In the Department's response it outlined its criteria for appointment to posts and stated that it was at the discretion of a Selection Board not to recommend the appointment of a particular applicant "if it finds that that applicant does not meet the required criteria for the post". The Union wrote to the Department on two further occasions but were not satisfied with the responses received.

3.7 According to the complainant she is a primary teacher with an excellent record of service. In addition to her Bachelor of Education degree she holds a City and Guilds Computers and Computing qualification as well as having successfully undertaken the GAA Coaching Course for teachers in both hurling and football. The complainant has also taught tin whistle and is proficient in music education. It is the complainant's submission that she has taught across a range of primary schools from town schools to rural schools and across a wide age range of classes. She has experience as a Resource/Learning Support Teacher. The complainant notes that the qualifications and experience of the appointee to the post in the respondent school are not known and while this information has been sought it has not been received.

3.8 The complainant submits that the Department of Education and Science plays a specific role in relation to the appointment of teachers in primary schools. Appointment procedures are set in the Rules and Constitution of Boards of Management of National Schools which is a document which was issued by the Department of Education and Science. These procedures refer to advertisements, composition of Selection Boards, assessment of applications, criteria, conduct of interviews and notification to applicants. It is the complainant's contention that the Department of Education and Science is a joint employer of teachers in National Schools for the reasons set out as follows:

• It is a party to the contract of employment between the Board of Management and the teacher and the appointment of a teacher by a Board of Management is subject at all times to sanction and approval by the Department and to the Rules for National Schools.
• In the case of Cecilia McGovern v Department of Education² it was claimed that the claimant had a three headed employer and it was held that the teacher was employed by the Board of Management as agent for the Minister of Education.
• In the case of Employment Equality Agency v The Department of Education³ the Labour Court held that the Department was the employer for the purposes of the Anti-Discrimination (Pay) Act, 1974.
• In the Education Act, 1998 the role of the Minister for Education vis a vis the employment of teachers is clearly stated and Sections 15(2), 24(2) and 24(3) refer. The Act also refers to the paymaster as the employer. The logic of this is that it indicates that the paymaster has an employment role.
• The Constitution of Boards and Rules of Procedure for Boards of Management states that all appointments as teachers shall be made by the Board of Management in accordance with the Rules for National Schools and subject to the prior approval of the Patron and the Minister for Education.
• In the case of Shiels O'Donnell v The Board of Management of St. Baithin's National School and the Department of Education and Science⁴ the Labour Court was satisfied that the Department of Education and Science as well as the School were the employer of the teacher concerned. The complainant notes that this finding was not appealed by the Department of Education and Science.

It is the complainant's contention that the respondent school took the action it did in respect of the advertised post on foot of the approval of the Department of Education and Science and that therefore the Department should explain its role in this matter in terms of the claim of discrimination under the Employment Equality Act, 1998.

4. SUMMARY OF THE SUBMISSION FROM THE FIRST NAMED RESPONDENT

4.1 The respondent states that a permanent position to teach a junior infants class became vacant in Drumshanbo Central National School and was advertised in the National Press in August, 2002. An appropriate selection board comprising three persons (namely the Chairperson of the Board of Management, the Principal of the respondent school and the Principal of another school) was appointed to interview candidates. The selection board drew up the following criteria on which the candidates were to be assessed
(i) Presentation including CV
(ii) Qualifications including Professional Development
(iii) Commitment
(iv) Suitability for the post including teamwork potential
(v) References

Marks out of twenty were given for each of the above five criteria. A total was then calculated based on the marks awarded for each criterion.

4.2 Following the advertisement of the post 13 applications were received and 3 applicants were called for interview. Only one candidate (the complainant) presented for interview which took place on 19th August, 2002. Having interviewed the complainant the selection board were unanimous that the she was not a suitable candidate for the position. At the subsequent Board of Management meeting this decision was accepted and it was decided to appoint a temporary teacher to the post and to re-advertise the position within a reasonable time. Some days later the complainant was informed that she was unsuccessful in her application. Following the decision of the Board of Management to appoint a temporary teacher enquiries were made by the Chairperson of the Board of Management and the Principal of the School to the Teacher Resource Centre in Carrick-on-Shannon. A graduate with an M.A. degree was interviewed and offered a temporary position which she accepted.

4.3 According to the respondent the Union corresponded with the Chairperson of the Board of Management in November, 2002 stating that the complainant was questioning the appointment to the post on a temporary basis of a teacher not fully qualified. The Chairperson responded as outlined in the complainant's submission. The respondent states that there was no further contact by the Union until mid February, 2003 when the Chairperson received forms requesting information under the Employment Equality Act, 1998 in which the complainant claimed that she was discriminated against on the grounds of her marital status and her age. The respondent totally rejects these allegations.

4.4 It is the respondent's submission that the complainant has not provided sufficient evidence to ground a prima facie claim of discrimination on the grounds of marital status. The respondent contends that the complainant must adduce some evidence beyond a simple assertion (i.e. that the view of the selection board that she was not 'suitable' "may relate to her marital status". According to the respondent the complainant's marital status was not mentioned during the course of the interview or during any of the selection board's deliberations. In her submission the complainant stated "The school in question is under Roman Catholic patronage and management. The claimant is a divorced person ... she is concerned that the Church's view relating to divorce and marital status may have influenced the finding that she was not suitable". It is the respondent's submission that this opinionated statement constitutes a bald assertion, entirely devoid of any grounding in fact and is not the basis for a prima facie case of discrimination. According to the respondent the complainant's status as a divorced woman was not raised at interview or at any stage in the deliberations of the selection board. Furthermore no issue was raised that the complainant's status as a divorced person was at odds with the Catholic ethos of the school and/or its Roman Catholic patronage. In this regard the respondent notes that the complainant was already employed by the school as a part-time resource teacher, a position for which she was deemed suitable. The respondent denies that the selection board found the complainant unsuitable for the permanent post on the grounds of her marital status.

4.5 Referring to her interview the complainant in her submission states "The question in relation to her motivation clearly indicated that the claimant's age may have been a factor in the appointment process. Such a query can only be interpreted as a reference to the age of the applicant". The respondent submits that this question as to how the complainant manages to remain motivated with her long years in teaching means precisely what it says. It is a question referring to her years in teaching and not her years in age. According to the respondent the complainant has over 23 years in the teaching profession and it is submitted that with this in mind it would be logical to make reference to the fact. The respondent submits that the question is a perfectly legitimate one concerning motivation generally. It constitutes the sole evidence upon which the complainant bases her claim of unequal treatment on the grounds of age. In these circumstances it is submitted that the complainant has failed to establish a prima facie case of discrimination on the age ground.

4.6 The respondent states that the complainant was assessed on the basis of the five criteria set out in paragraph 4.1 above. She did not score highly on any of the criteria and her overall mark was 40%. Accordingly it was for this reason that she was deemed unsuitable for the permanent post. In relation to the complainant's references the respondent states that the school followed up on both referees named by the complainant in her application and received one written positive reference from the Principal of a school where the complainant had taught and one verbal negative reference from the Chairperson of the Board of Management of another school where the complainant had also taught. The verbal negative reference was negative with regard to the complainant's work as a teacher. The respondent notes that it received two conflicting references from the two referees nominated by the complainant.

4.7 The respondent states that the complainant was not suitable for the advertised post and this decision was arrived at following careful consideration and deliberation and for valid and non-discriminatory reasons. In relation to the subsequent temporary appointment the respondent followed the recommended practices and the Department of Education and Science guidelines in their advertisement, interview process and subsequent appointment of a temporary teacher to the post. It is the respondent's submission that the qualifications of the person temporarily appointed to the position is not a matter for determination in these proceedings and the respondent notes that no issue has been raised on the complainant's qualifications. The respondent submits that the complainant has failed to establish a prima facie or any case of discrimination on the grounds of marital status or age. It is the respondent's contention that there are clear, reasonable and objectively justifiable reasons for considering the complainant unsuitable for the permanent post.

5. SUMMARY OF THE STATEMENT FROM THE SECOND NAMED RESPONDENT

5.1 According to the Department of Education and Science the position is that the appointment of a teacher is a matter from the Board of Management of a school. The details regarding the appointment of teachers are outlined in the Department booklets entitled "Appointment of Principals, Permanent & Temporary Teachers" and "Boards of Management of National Schools Constitution of Boards and Rules of Procedure". The second named respondent states that the function of the Minister for Education and Science is to ensure that the appointment is warranted by reference to the staffing schedule and to ensure that the person being appointed is qualified for the post. According to the second named respondent the Board of Management of a school is primarily responsible for the appointment of teachers (Section 24(3) of the Education Act refers). The Minister's role in this regard is confined to agreeing procedures, along with other partners in Education, and setting down, with the agreement of the Minister for Finance, the terms and conditions of employment.

5.2 The second named respondent notes that the complainant has cited the EAT decision⁵ in her submission and states that it appealed the decision and the
appeal was uncontested and the Court ordered that the original determination should be vacated. In the recent case of Josephine Bleach v The Board of Management of Our Lady of Immaculate Senior School and the Department of Education and Science⁶ the Equality Officer held that the employer of a primary school was the Board of Management of the school.

5.3 The second named respondent states that the Union has written to it on a number of occasions. In its replies the second named respondent has maintained that a Board of Management retains the right not to appoint a candidate if it considers that the candidate is not suitable for the position. In such circumstances the second named respondent may sanction the appointment of a teacher on a temporary basis until the Board of Management appoints a suitable candidate.

6. CONCLUSIONS OF THE EQUALITY OFFICER

6.1 The issue for decision in this claim is whether or not the complainant was discriminated against on the grounds of marital status and age in terms of Sections 6 and 8 of the Employment Equality Act, 1998. In making my decision in this claim I have taken into account all of the information, both written and oral, made to me by the parties.

Appropriate Employer

6.2 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. The issue of the appropriate employer has been addressed in detail by the Equality Officer in the Decision in the case of Bleach⁷. 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 this finding 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 on the grounds of marital status

6.3 The complainant has alleged that she was subjected to discriminatory treatment on the grounds of her marital status in the appointment competition for a permanent teaching position in Drumshanbo Central National School. The complainant applied for this position and attended for interview on 19th August, 2002. It is the complainant's contention that two of the members of the interview board were aware of her marital status (i.e. she is divorced and in another relationship). According to the complainant this fact may have influenced the interview board members given that the school is under Roman Catholic patronage and management. The complainant, however, notes that, despite her marital status, she always upheld the school's ethos and characteristic spirit in her work. I note that the first named respondent has denied that the complainant's marital status influenced the members of the interview board when they decided that she was not suitable for the permanent teaching position. At the hearing of this claim the Chairperson of the interview board indicated that he knew that the complainant was separated but he was not aware that she was divorced and he was vaguely aware of her domestic arrangements. The Principal of the School, who was also a member of the interview board, stated that he knew that the complainant was separated and that she was in another relationship. Neither interview board member knew that the complainant was divorced.

6.4 It is a matter of fact that the complainant was divorced and is in another relationship. Two members of the interview board were aware that she was separated. Having said that I am satisfied that there were no questions put to the complainant which related to her marital status. There is no evidence to support the allegation that the interview board members were influenced in the decision they made not to appoint her to the permanent teaching position by the fact that she was separated. The fact that the complainant's marital status does not conform to Catholic Church views on marriage is insufficient to ground of prima facie claim of discrimination. In conclusion, therefore, I find that the complainant has failed to establish a prima facie claim of discrimination on the grounds of her marital status.

Discriminatory treatment on the grounds of age

6.5 The complainant alleges that she was discriminated against by the first named respondent on the grounds of her age when she was asked by one of the interview board members if she found it a problem or difficult to remain motivated as she had been teaching for so long. It is the complainant's contention that this question referred to her age and was discriminatory. The first named respondent denied that this question referred to the complainant's age but rather referred to her length of time as a teacher.

6.6 The first named respondent submitted notes taken by one of the interviewers at the interview. I note that this particular interviewer did not ask the complainant the question about motivation. However in these notes made by this interviewer I note that she made three references to the complainant's age by writing down the complainant's year of birth, her age and the year she qualified as a primary school teacher. At the hearing of this claim this interviewer stated that it was a habit of hers in all interviews in which she participated undertook to write down the age of the candidate she was interviewing. On further questioning she indicated that the reason she did this was because it was useful to know the age of a candidate in deciding on the type of question to ask the candidate. When questioned about this by the complainant's representative the interview board member denied that she had said that the questions she asked were related to a candidate's age but rather that she would not ask the same question of a younger candidate than of an older candidate and that this related to experience rather than age. Given the question put to the complainant at interview, the three references to her age in the notes taken at interview and the comment by the interviewer about framing questions in accordance with age/experience I am satisfied that the complainant has established a prima facie claim of discrimination on the grounds of age.

6.7 The Labour Court in its Determination⁸ in a claim taken on the disability ground under the Employment Equality Act, 1998 held:
"It is now established in the jurisprudence of this Court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that prescribed in the case of gender discrimination by the European Community (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (SI No 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v Southern Health Board⁹. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If the two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed".

I am satisfied that this procedural rule applies in this claim and that the complainant has established a prima facie claim of discrimination on the grounds of age sufficient to shift the burden of proof to the first named respondent.

6.8 The complainant was the only candidate to attend for interview for the permanent teaching position in Drumshanbo Central National School. The interview board comprised the Chairperson of the Board of Management of the School, the Principal of the School and the Principal of another School. The interview board drew up the criteria by which it would assess the complainant as follows:
1. Presentation - CV
2. Qualifications - Professional Development
3. Commitment
4. Suitability for post
5. References

Each of the five criteria were marked out of 20 giving a total score of 100. It is not clear what questions were put to the complainant during the course of the interview as details of questions asked were not retained. Two of the interview board members submitted lists of questions but, at the hearing of this claim, it transpired that these were standard lists of questions that these interviewers used in interviews and not all questions on these lists were put to the complainant at the interview. Furthermore the question about motivation, which was put to the complainant, did not appear on the lists of questions submitted by the first named respondent. Only one of the interview board members submitted their notes of interview. This interviewer also made some notes during and at the end of the interview which had the names of the three interview board members at the end of them.

6.9 The first named respondent submitted a marking sheet which set out the various criteria and the names of each of the interview board members and the marks each board member allocated to the complainant under each of the criteria. The details of the marks by each interview board member were completed on this marking sheet by the Chairperson of the interview board. At the hearing of this claim the first named respondent confirmed that, after the complainant's interview, the Chairperson of the interview board asked each of the other members of the board for their marks under each criteria and he wrote these marks onto the marking sheet. As the complainant obtained only 40% of the total marks she was deemed unsuitable for the position of permanent teacher in Drumshanbo Central National School. For greater transparency and fairness it should have been clearly evident that each of the interview board members had separately marked the complainant under each of the defined criteria.

6.10 In relation to the respondent's procedure in conducting this interview process I note that the interview board did not set out clearly the questions it proposed to put to the complainant at the interview. The failure to do this resulted in a conflict over the question asked about motivation and how the question was phrased and where the emphasis lay. Without the questions being clearly set out it is difficult to see how the criteria adopted by the interview board members were assessed by them. In terms of the criteria used by the interview board many of them were subjective and it was unclear what was being assessed under each criteria and how marks were awarded. It was only at the hearing of this claim that the interview board, in response to my questioning, stated that what it was assessing under each of the criteria was as follows:

Presentation - CV
Professionalism of how the CV was presented.
How well were the achievements and the goals for the future set out in the CV.

Qualifications - Professional Development
Qualifications as a National Teacher.
Initiatives (Courses undertaken).
What courses undertaken in the sense of moving from mainstream to resource teaching and back to mainstream.
Course(s) to back up assessment and diagnostic assessment as a Resource Teacher.
Candidate's achievements and the achievements of their pupils.

Commitment
Dedication and loyalty to the school on a long term basis.
Sense of enthusiasm and vision.
Professional Development.

Suitability for post
General phrase to assess the candidate's feel for the job.
Would the candidate make a positive contribution to the School.

References
Candidates were asked to give the names of two referees.

Having looked at the above I am satisfied that the interview board members carried out a subjective assessment of the complainant in relation to her interview for the permanent teacher position. I, further, note that it was unclear on what basis the 20 marks were allocated for Qualifications/Professional Development where the interview board should have clearly set out the number of marks it was awarding to the complainant for having the essential qualifications (i.e. Batchelor of Education) and then the details of the other qualifications/professional development which were deemed to merit the awarding of marks.

6.11 The complainant, in her CV, named two referees and the first named respondent approached these referees for references. According to the first named respondent one written response was received and the reference was favourable towards the complainant. The second referee chose not to give a written reference but rather gave a negative oral reference. While the complainant taught in the school to which this referee was attached he had never indicated to her any of the difficulties which were allegedly raised by him to the Chairperson of the interview board. At the hearing of this claim the first named respondent stated that the Chairperson of the interview board also approached the Chairperson of the Board of Management of the school where the complainant worked as a Resource Teacher (i.e. Kilnagross National School) and this person also gave oral negative feedback in relation to the complainant. For the purposes of the hearing of this claim this person set out his feedback in writing.

6.12 I have a number of issues with this. Firstly a negative reference should not have been given where issues regarding the complainant's work as a teacher were not raised with her while she taught in that school (for a duration of 8 years) because the complainant was never afforded the opportunity to respond to any criticisms of her work as a teacher. However an oral negative reference was given and I accept that the Chairperson of the interview board could not have stopped such a reference being given. However he should have sought the reference in writing so that all interview board members could read it and decide on its merits or otherwise. What actually happened was that the Chairperson of the interview board spoke with this referee, did not take notes and related his conversation back to the other members of the interview board. In such a situation there is no guarantee that the Chairperson of the interview board related back to the other interview board members exactly what was said and gave it the same emphasis or otherwise as the referee. Having said that I consider that the interview board should not have entertained this reference without having established if these issues had been raised directly with the complainant while she was teaching in the particular school and the outcome of this course of action. In these circumstances I am satisfied that the marks given by each of the interview board members to the complainant in relation to references were unexplainably low.

6.13 It was very unclear to me how the interview board assessed the complainant in relation to commitment and suitability given that the questions put to the complainant during the course of her interview were not set out. Furthermore there was no indication as to what information the interview board members were attempting to elicit to establish commitment and suitability. The interview board members did not set out the areas which they expected the complainant to refer to as she endeavoured to demonstrate her commitment and suitability and the marks attributed to these areas.

6.14 The allocation of marks to the complainant on the basis of the presentation of her C.V. was very subjective. It gives me no indication as to how it influenced whether or not the complainant could perform as a teacher or not. Furthermore at the hearing of this claim I found that the complainant was penalised for what was deemed the poor presentation of her C.V. and then under the heading of Qualifications/Professional Development she was again penalised for not having set out in her C.V. all courses she had undertaken.

6.15 Consequently I am satisfied that the first named respondent has failed to show that there were objective reasons for the non-appointment of the complainant to the permanent teaching position in Drumshanbo Central National School. I can only conclude that she was treated less favourably on the grounds of her age. I note that, in the absence of any other candidate for the permanent teaching position, the first named respondent, with the approval of the second named respondent, sought to employ a temporary teacher to fill the post. The person appointed in a temporary capacity had an MA qualification but was not a qualified national school teacher. At the time of interview the complainant was 50 and she says that the person appointed to the position was much younger with a considerable difference in age between them. It is the complainant's contention that this fact supports her view that she was discriminated against on the grounds of age. At the hearing of this claim the first named respondent did not accept that the person appointed to the vacant position in a temporary capacity was an appropriate comparator for the purposes of this case. I agree with the first named respondent on this point. The appointee was offered the vacant teaching position on a temporary basis pending an appointment of a teacher on a permanent basis. The appointee was not an applicant who was interviewed in the same competition as the complainant and the appointee was only offered the position on a temporary basis when the interview board deemed the complainant unsuitable for the permanent position.

6.16 The first named respondent stated that it was advised by the second named respondent that it could appoint someone to the vacant position on a temporary basis in the short term where it was unable to find a suitable candidate to fill the position on a permanent basis. The second named respondent stated that the first named respondent should re-advertise the position within a reasonable timeframe. The person appointed on a temporary basis commenced employment in September, 2002. I note that there was no indication from the second named respondent as to what constitutes a reasonable timeframe, this is left to the Board of Management of a School. The first named respondent received correspondence from the Union, on behalf of the complainant, in November, 2002 questioning the appointment of a teacher who was not fully qualified for the post and then in February, 2003 the first named respondent received further correspondence in which the complainant alleged discrimination on the grounds of marital status and age. The first named respondent did not re-advertise the position as advised by the second named respondent and I note that, at the hearing of this claim, the first named respondent stated that it took the decision not to re-advertise the permanent position pending the outcome of this investigation. I find that this was an acceptable course of action in these circumstances.

7. DECISION

7.1 In view of the foregoing I find that the Board of Management of Drumshanbo Central National School did not discriminate against Mr. Monica Delaney on the grounds of her marital status within the meaning of Sections 6(1) and 6(2)(b) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act when she was not appointed to the vacant permanent teaching position.

7.2 I find that the Board of Management of Drumshanbo Central National School did discriminate against Ms. Monica Delaney on the grounds of her age in terms of Sections 6(1) and 6(2)(f) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act when they did not appoint her to the vacant permanent teaching position in the School.

7.3 In accordance with Section 82 of the Employment Equality Act, 1998 I hereby order the Board of Management of Drumshanbo Central National School to -
(a) hold the competition for the permanent teaching position in the respondent school again. A new independent interview board should be appointed and appropriate
procedures should be followed in terms of questions, criteria, marking and interview notes. Interview board members should not be informed of this claim but should be familiar with the provisions of the Employment Equality legislation and their duties thereunder.
(b) pay the complainant the sum of €15,000 by way of compensation for the breach of her right to equal treatment under the Employment Equality Act, 1998 and the stress suffered as a result of the discriminatory treatment.

I further order 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 encompass the provisions and implications of the Employment
Equality legislation.

7.4 I wish to re-iterate my recommendation in the McGinn Decision¹⁰ as follows:
(i) that 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.
(ii) that 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
23rd November, 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.

2 Employment Appeals Tribunal - UD554/1989

3 Labour Court Determination - DEP 3/1987

4 Labour Court Determination - DEE 025 dated 1st July, 2002

5 Employment Appeals Tribunal - Cecilia McGovern v The Board of Management, Our Lady's Girls School, Milltown, Dublin and the Department of Education - UD 554/1989

6 Equality Officer Decision - DEC-E2003/028

7 Equality Officer Decision - Bleach v Our Lady Immaculate Senior School & The Department of Education and Science - DEC-E2003/028

8 Labour Court Determination - Flexo Computer Stationery Limited and Kevin Coulter - EED0313

9 Labour Court Determination - [2001] ELR 201

10 Equality Officer Decision - McGinn v Board of Management, St. Anthony's Boys National School, Kilcoole and the Department of Education and Science - DEC-E2004- 032